1314 Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 

1Additional guidance on anti-backsliding under 

the 8-hour standard and how it applies to I/M 

programs can be found in the May 12, 2004 policy 

memo signed by Tom Helms, Ozone Policy and 

Strategies Group, and Leila Cook, State Measures 

and Conformity Group, entitled ‘‘1-Hour Ozone 

Maintenance Plans Containing Basic I/M 

Programs,’’ a copy of which is contained in the 

docket for this proposed rulemaking.

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51

[FRL–7857–4] 

RIN 2060–AM21

Amendments to Vehicle Inspection 

Maintenance Program Requirements 

To Address the 8-Hour National 

Ambient Air Quality Standard for 

Ozone

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Notice of proposed rulemaking.

SUMMARY: This document proposes 

minor revisions to the Motor Vehicle 

Inspection/Maintenance (I/M) 

regulation to update submission and 

implementation deadlines and other 

timing-related requirements to more 

appropriately reflect the 

implementation schedule for meeting 

the 8-hour National Ambient Air 

Quality Standards (NAAQS) for ozone. 

This proposal is directed specifically at 

those areas that will be newly required 

to implement I/M as a result of being 

designated and classified under the 8-

hour ozone standard; the conditions 

under which an existing I/M program 

under the 1-hour ozone standard must 

continue operation under the 8-hour 

standard are addressed under the antibacksliding provisions of the April 30, 

2004 final rulemaking which 

established several key requirements for 

implementing the 8-hour ozone 

standard (69 FR 23931).1

DATES: Written comments on this 

proposal must be received no later than 

February 7, 2005.

ADDRESSES: You may submit comments, 

identified by Docket #OAR–2004–0095, 

by any of the following methods: 

• Federal eRulemaking portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: A-and-R-Docket@epa.gov.

Include Docket #OAR–2004–0095 in the 

subject line of the message. 

• Fax: (202) 566–1741. 

• Mail: U.S. Environmental 

Protection Agency, EPA West (Air 

Docket), 1200 Pennsylvania Avenue, 

NW., Room: B108; Mail Code: 6102T, 

Washington, DC 20460. 

• Hand Delivery/Courier: EPA Docket 

Center (Air Docket), U.S. Environmental 

Protection Agency, 1301 Constitution 

Avenue, NW., Room: B108; Mail Code: 

6102T, Washington, DC 20004. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

rulemaking. All comments received will 

be posted without change to http://

cascade.epa.gov/RightSite/

dk_public_home.htm, including any 

personal information provided. For 

detailed instructions on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

cascade.epa.gov/RightSite/

dk_public_home.htm or EPA Docket 

Center (Air Docket), U.S. Environmental 

Protection Agency, 1301 Constitution 

Avenue, NW., Room: B108; Mail Code: 

6102T, Washington, DC 20004.

FOR FURTHER INFORMATION CONTACT:

David Sosnowski, Office of 

Transportation and Air Quality, 

Transportation and Regional Programs 

Division, 2000 Traverwood, Ann Arbor, 

Michigan 48105. Telephone (734) 214–

4823.

SUPPLEMENTARY INFORMATION: 

I. Table of Contents

I. Table of Contents 

II. Summary of Proposal 

III. Authority 

IV. Background of the Proposed Amendments 

A. Amendments to the I/M Performance 

Standards 

B. Amendments to Program Evaluation 

Requirements 

C. Amendments to the Basic I/M Waiver 

Requirements 

D. Amendments to Update SIP Submission 

Deadlines 

E. Amendments to Update Implementation 

Deadlines

V. Discussion of Major Issues 

A. Impact on Existing I/M Programs 

B. Impact on Future I/M Programs 

VI. Economic Costs and Benefits 

VII. Public Participation 

VIII. 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 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act

II. Summary of Proposal 

On April 30, 2004, EPA published a 

notice of final rulemaking (69 FR 23931) 

addressing several key requirements 

related to the implementation of the 8-

hour ozone standard originally 

promulgated on July 18, 1997 (62 FR 

38856). Among other things, the 8-hour 

ozone standard implementation rule 

established deadlines for meeting the 8-

hour ozone standard based upon an 

area’s designation and classification. 

The rule also addresses when State 

Implementation Plans (SIPs) and 

attainment demonstrations must be 

submitted. As a general matter, the 

deadlines associated with 

implementation of the 8-hour ozone 

standard relate back to the effective date 

of an area’s designation and 

classification under the 8-hour ozone 

standard, and new 8-hour ozone nonattainment areas are given the same 

amount of time to meet their various 

obligations as was given to comparably 

classified non-attainment areas under 

the 1-hour ozone standard. For example, 

under the Clean Air Act Amendments of 

1990 (CAA), most areas designated and 

classified as moderate under the 1-hour 

standard were given 6 years after 

designation as non-attainment to attain 

the 1-hour ozone standard. Similarly, 

under the rule for implementing the 8-

hour ozone standard, an area designated 

and classified as moderate under the 8-

hour standard will also have up to 6 

years after the effective date of its nonattainment designation to attain the 8-

hour ozone standard. 

In addition to establishing the abovementioned deadlines, the April 30, 2004 

rulemaking also clarified how the CAA’s 

anti-backsliding provisions would be 

applied under the 8-hour standard to 

certain applicable requirements such as 

I/M once the 1-hour ozone standard is 

revoked. In general, if an existing I/M 

area is not able to redesignate to 

attainment for the 1-hour ozone 

standard prior to revocation of that 

standard (and is also designated as nonattainment for the 8-hour standard, 

regardless of classification or subpart) 

then that area will be required to 

continue implementing an I/M program 

until it has attained the 8-hour ozone 

standard. Readers interested in learning 

more about how the Act’s antibacksliding provisions apply to I/M 

under the 8-hour standard should 

consult the anti-backsliding provisions 

of the April 30, 2004 final rulemaking 

Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 1315

as well as the May 12, 2004 policy 

memo concerning exceptions to the 

general anti-backsliding policy for 

certain maintenance areas signed by 

Tom Helms and Leila Cook entitled ‘‘1-

Hour Ozone Maintenance Plans 

Containing Basic I/M Programs,’’ a copy 

of which is contained in the docket for 

this proposed rulemaking. 

When the rulemaking establishing the 

requirements for vehicle inspection and 

maintenance (I/M) programs was first 

published in November 1992, some of 

the deadlines were expressed relatively 

(i.e., ‘‘within X years of Y * * *’’) while 

others were set as explicit dates (i.e., 

‘‘no later than November 15, 1993 

***’’). The purpose of today’s 

proposed rulemaking is to revise 

outdated timing-related references in 

the I/M rule such as submission dates, 

start dates, evaluation dates, and other 

milestones and/or deadlines to make 

them relevant for those areas that will 

be newly required to begin I/M 

programs as a result of being designated 

and classified under the 8-hour ozone 

standard. It is not the intention of this 

proposal to revise or establish new 

requirements for existing I/M programs 

established in response to the 1-hour 

ozone standard. As discussed above, the 

requirements that apply to existing 1-

hour I/M programs that must continue 

implementation under the 8-hour 

standard have already been addressed 

under the anti-backsliding provisions of 

the April 30, 2004 final rulemaking as 

well as the May 12, 2004 policy memo 

entitled ‘‘1-Hour Ozone Maintenance 

Plans Containing Basic I/M Programs,’’

a copy of which is contained in the 

docket for this proposed rulemaking. 

Today’s notice proposes to: (1) Revise 

sections 51.351 and 51.352 (the basic 

and enhanced I/M performance 

standards) to update the start date and 

model year coverage associated with 

specific elements of the basic and 

enhanced I/M performance standards as 

well as to set the benchmark 

comparison date(s) for performance 

standard modeling purposes that better 

reflects milestones associated with the 

8-hour ozone standard; (2) revise section 

51.353 (network type and program 

evaluation) to make the deadline for 

beginning the first round of program 

evaluation testing (which is currently 

listed as ‘‘no later than November 30, 

1998’’) a relative deadline keyed to the 

date of program start up; (3) amend 

section 51.360 (waivers and compliance 

via diagnostic inspection) so that the 

deadline for establishing full waiver 

limits for those basic I/M programs 

choosing to allow waivers (currently, 

‘‘no later than January 1, 1998’’) 

becomes ‘‘January 1, 1998, or coincident 

with program start up, whichever is 

later’’; (4) update section 51.372 (state 

implementation plan submissions) to set 

the I/M SIP submission deadline for 

areas newly required to adopt I/M 

programs under the 8-hour ozone 

standard as 1 year after the effective 

date of EPA’s final action on today’s 

proposal or 1 year after the effective 

date of designation and classification 

under the 8-hour standard (whichever is 

later); (5) update section 51.373 

(implementation deadlines) to establish 

the implementation deadline for new I/

M programs required under the 8-hour 

standard as 4 years after the effective 

date of designation and classification 

under the 8-hour ozone standard; and 

(6) revise section 51.373 

(implementation deadlines) to clarify 

that the deadline for beginning OBD 

testing for areas newly required to 

implement I/M as a result of being 

designated and classified under the 8-

hour ozone standard is ‘‘coincident with 

program start up.’’

III. Authority 

Authority for the rule changes 

proposed in this notice is granted to 

EPA by sections 182, 184, 187, and 118 

of the Clean Air Act as amended (42 

U.S.C. 7401, et seq.). 

IV. Background of the Proposed 

Amendments 

On July 18, 1997, EPA revised the 

National Ambient Air Quality Standard 

(NAAQS) for ozone (62 FR 38856) by 

promulgating a standard of 0.08 parts 

per million (ppm) as measured over an 

8-hour period. At the time, EPA 

indicated its belief that the 8-hour ozone 

NAAQS should be implemented under 

the less prescriptive requirements of 

subpart 1 of part D of title I of the CAA 

rather than the more prescriptive 

mandates of subpart 2 of that part. For 

mandatory I/M—which falls under 

subpart 2, as opposed to the more 

flexible subpart 1—this approach to 

implementing the 8-hour ozone NAAQS 

solely under subpart 1 would have 

meant that I/M would not be mandatory 

for any area that was newly designated 

under the 8-hour ozone standard (unless 

the area in question had previously been 

required to implement I/M under the 1-

hour standard, in which case the Act’s 

anti-backsliding provisions would 

apply). 

Various industry groups and states 

challenged EPA’s final rule 

promulgating the 8-hour ozone NAAQS, 

which eventually led to a Supreme 

Court ruling, issued in February 2001. 

Among other things, the Supreme Court 

found that EPA’s original 

implementation approach, which did 

not provide a role for subpart 2 in 

implementing the 8-hour NAAQS, was 

unreasonable. Specifically, the Court 

noted EPA could not ignore the 

provisions of subpart 2 that ‘‘eliminate[] 

regulatory discretion’’ allowed by 

subpart 1. The Court also identified 

several portions of the CAA’s 

classification scheme under subpart 2 

that are ‘‘ill-fitted’’ to the revised 

standard and remanded the 

implementation rule to EPA for the 

development of a reasonable approach 

for implementation. Whitman v. 

American Trucking Assoc., 121 S.Ct. 

916–919 (2001) (Whitman). 

The Agency’s 8-hour ozone 

implementation proposal was published 

in the Federal Register on June 2, 2003 

(68 FR 32802). Key portions of the June 

2, 2003 proposal relevant to I/M (and 

other subpart 2 requirements) were 

subsequently promulgated as final in a 

rulemaking published in the Federal 

Register on April 30, 2004 (69 FR 

23951). It is, therefore, appropriate and 

timely for EPA to update the I/M rule to 

clarify the requirements for areas newly 

required to implement I/M as a result of 

being designated and classified under 

the 8-hour ozone standard. It is not, 

however, the intention of this proposal 

to address requirements for existing, 1-

hour I/M programs which must 

continue under the 8-hour standard; 

those requirements are already 

addressed under the anti-backsliding 

provisions of the April 30, 2004 final 

rulemaking as well as the May 12, 2004 

policy memo entitled ‘‘1-Hour Ozone 

Maintenance Plans Containing Basic I/

M Programs.’’

Today’s proposed revisions to the I/M 

rule and EPA’s rationale for each are 

discussed under separate headings 

below. 

A. Amendments to the I/M Performance 

Standards 

1. What Is an I/M Performance 

Standard? 

An I/M performance standard is a 

collection of program design elements 

(such as start date, test type, network 

type, vehicle coverage, etc.) which 

defines a benchmark program to which 

a state’s proposed program is compared 

in terms of its potential to reduce 

emissions of carbon monoxide (CO) 

and/or the ozone precursors, 

hydrocarbons (HC) and oxides of 

nitrogen (NOX) by certain benchmark 

comparison dates (also known as 

‘‘evaluation dates’’). Unless an 

alternative method or model has been 

approved by EPA, the mechanism used 

to compare the performance standard 

program to a state’s proposed program is 

1316 Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 

the currently applicable version of 

EPA’s mobile source emission factor 

model—currently, MOBILE6.2. The 

MOBILE model uses input files that 

include descriptions of the program 

design elements but which also include 

locally variable parameters, such as the 

age distribution of the local fleet, 

average temperature of the local area, 

local fuel characteristics, etc. 

To determine whether or not a given 

program meets the performance 

standard, it is necessary to produce 

three MOBILE input files: (1) The 

applicable performance standard 

benchmark program; (2) the state’s 

proposed program; and (3) a no-I/M 

scenario which characterizes the 

emissions from the local fleet with no I/

M program in place. Once these input 

files have been created, the MOBILE 

model is then run to produce 

assessments of the emission levels 

expected with the performance standard 

in place, with the proposed program in 

place, and with no I/M program in 

place. The emission reduction ‘‘credits’’

associated with the performance 

standard and proposed program are 

calculated by subtracting the emission 

levels projected with either program in 

place from the emission levels projected 

with no I/M program in place. If the 

emission reduction credits associated 

with the state’s proposed program are 

equal to or greater than those associated 

with the performance standard, then the 

state’s proposed program is considered 

to have met its performance standard. 

2. What Are ‘‘I/M Program Design 

Elements’’ and How Do They Interact 

With ‘‘Locally Variable Parameters’’? 

I/M program design elements are 

program features most likely to have a 

direct impact on the ability of the 

program to reduce levels of the three 

criteria pollutants (CO, HC, and NOX). 

Factors that directly influence the level 

of emission reductions associated with 

a given I/M program design include but 

are not limited to the following: test 

frequency, compliance rate, vehicle type 

coverage, model year coverage, start 

date, evaluation date, and test type [e.g., 

idle, IM240, Acceleration Simulation 

Mode (ASM), onboard diagnostics 

(OBD)].

To illustrate how an I/M program 

design element can interact with a 

‘‘locally variable parameter,’’ consider 

model year (MY) coverage and a local 

variable such as in-use fleet age 

distribution. Generally speaking, the 

more model years covered, the greater 

the potential for reducing emissions, 

though not all model years are 

considered equal in this regard. For 

example, testing the newest vehicles 

only provides marginal, additional 

emission reductions because new cars 

are unlikely to have accumulated the 

wear and tear that typically lead to high 

emissions. On the opposite end of the 

spectrum, testing the very oldest cars 

may not provide much in the way of 

emission reductions either, given the 

small number of such vehicles still 

capable of being driven and their 

limited contribution to a given nonattainment area’s overall vehicle miles 

traveled (VMT). What constitutes 

optimal model year coverage will vary 

from area to area, depending upon the 

characteristics of the local, in-use fleet. 

This local variability (and its impact on 

the emission reductions that can 

potentially be achieved by a given I/M 

program) is one of the reasons why the 

input files used to demonstrate 

compliance with an I/M performance 

standard must include both the I/M 

program design elements that define the 

programs being compared and the local 

variables likely to affect the mobile 

source emission inventory, like local inuse fleet age distribution, VMT 

distribution, average temperature, and 

local fuel composition. 

3. How Much Discretion Does EPA Have 

in Deciding What I/M Program Design 

Elements To Include in a Performance 

Standard? 

In mandating that EPA establish 

performance standards for I/M 

programs, the Clean Air Act 

Amendments of 1990 were fairly 

prescriptive with regard to several of the 

I/M program design elements that must 

be included. For example, EPA’s I/M 

performance standard for areas 

designated and classified as having 

‘‘serious’’ or worse air quality (i.e., the 

‘‘enhanced’’ I/M performance standard) 

is required by the statute to include 

annual vehicle testing with at least two 

tests per vehicle (an emissions test and 

a component check to detect tampering 

and/or misfueling) covering both 

passenger cars and light-duty trucks, 

with no allowance for any model year 

exemptions. EPA was given more 

discretion, however, when it came to 

determining what specific emission test 

and failure threshold combination 

would apply for any given model year 

covered by the performance standard, so 

that older vehicles certified to more 

lenient emission standards would not be 

subject to the same stringent I/M testing 

criteria established for newer, more 

technologically advanced vehicles. 

4. How Much Discretion Does a State 

Have in Deciding the Design of Its 

Actual I/M Program? 

The 1990 CAA specifies certain 

minimum program design requirements 

that must be part of a state’s I/M 

program. For example, all mandatory

I/M programs must include some level 

of OBD testing, while all enhanced I/M 

programs are required to include some 

form of on-road testing. Nevertheless, 

states have far more latitude in 

designing their own programs than EPA 

has in setting the performance standard. 

For example, states can adopt biennial 

programs provided equivalent emission 

reductions are achieved and can exempt 

the newest and/or oldest model years, 

while EPA’s performance standard was 

required to be annual and was not 

allowed to exempt vehicles based upon 

model year. As long as a state’s program 

meets the 1990 CAA’s minimum 

requirements and can be shown through 

modeling to achieve the same or better 

emission reductions as the applicable 

performance standard, the actual design 

of the I/M program (whether annual or 

biennial, with or without model year 

exemptions, centralized or 

decentralized, allowing waivers or not, 

using dynamometer-based testing or not, 

covering heavy-duty trucks or not, etc.) 

is for the state to decide. The criteria 

that a subject area should consider in 

designing (or redesigning) its I/M 

program are discussed below, under 

item 10 of this subsection. 

5. Why Do EPA’s Current Performance 

Standards Need To Be Revised for Areas 

Newly Required To Do I/M Under the 8-

Hour Ozone NAAQS?

The current I/M performance 

standards were written to reflect the 

deadlines set by the 1990 CAA for 1-

hour ozone non-attainment areas. For 

example, the start dates for various 

elements of the current performance 

standards reflect either the actual 

mandated start dates for those elements, 

or what were considered reasonable 

start dates for areas newly required to 

do I/M under the 1-hour standard. 

These date assumptions do not make 

sense under the schedule promulgated 

for meeting the 8-hour standard. For 

example, one current enhanced I/M 

performance standard assumes a start 

date of no later than 1995, while current 

8-hour ozone non-attainment areas were 

not even designated and classified until 

2004 and are not expected to submit 

attainment plans until 2007. It is 

therefore essential to revise the timing 

assumptions associated with the I/M 

performance standards so that they 

Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 1317

make sense for 8-hour ozone nonattainment areas new to I/M. 

6. What Regulatory Change Does EPA 

Propose? 

EPA proposes to make the following 

regulatory changes to the basic I/M 

performance standard for areas newly 

required to implement a basic I/M 

program as a result of being designated 

and classified moderate non-attainment 

under the 8-hour ozone NAAQS (and 

meeting the existing I/M population 

criteria): (1) Start date: four years after 

the effective date of designation and 

classification under the 8-hour ozone 

standard; (2) emission test types: Model 

Year (MY) 1968–2000—idle, MY 2001 

and newer—onboard diagnostic (OBD) 

check; (3) evaluation date: six years after 

the effective date of designation and 

classification under the 8-hour ozone 

standard rounded to the nearest July. 

All other basic I/M performance design 

elements shall be the same as previously 

promulgated for 1-hour ozone nonattainment areas (see 40 CFR 51.352). 

For areas newly required to 

implement an enhanced I/M program as 

a result of being designated and 

classified as serious or higher nonattainment under the 8-hour ozone 

NAAQS (and meeting the existing I/M 

population criteria for enhanced I/M 

areas), EPA proposes that an 8-hour 

ozone enhanced I/M performance 

standard be established assuming the 

same program design elements as the 

current low enhanced I/M performance 

standard defined at 40 CFR 51.351 (g) 

but with the following exceptions: (1) 

Start date: four years after the effective 

date of designation and classification 

under the 8-hour ozone standard; (2) 

emission test types: MY 1968–2000—

idle, MY 2001 and newer—onboard 

diagnostic (OBD) check; (3) evaluation 

dates: six years after the effective date 

of designation and classification under 

the 8-hour ozone standard rounded to 

the nearest July and the applicable 

attainment date, also rounded to the 

nearest July. 

A state’s program will be deemed in 

compliance with the 8-hour ozone 

enhanced I/M performance standard if it 

can demonstrate through modeling that 

the proposed program will achieve the 

same percent reduction in HC and NOX: 

(1) As achieved by the performance 

standard program based upon an 

evaluation date set to the six year 

anniversary of the effective date of the 

area’s designation and classification 

under the 8-hour ozone standard, 

rounded to the nearest July and (2) can 

demonstrate through modeling that the 

same percent reduction as achieved 

under number 1 is still being achieved 

as of the first July following the area’s 

attainment date under the 8-hour ozone 

standard. 

7. Why Does EPA Propose That Only 

MY 2001 and Newer Vehicles Be 

Subjected To the OBD–I/M Check as 

Part of the Proposed I/M Performance 

Standards for Areas New to I/M Under 

the 8-Hour Ozone Standard When 

Vehicles Have Included OBD Systems 

Since MY 1996? Does This Reflect 

EPA’s Recommended MY Coverage for 

Such Testing? Is There Something 

Which Prevents Successful Testing of 

Older (i.e., pre-2001) OBD-Equipped 

Vehicles?

EPA’s proposed MY coverage for 

OBD-I/M testing in the 8-hour I/M 

performance standards does not reflect 

the Agency’s recommended MY 

coverage for such testing nor does it 

suggest a problem with testing pre-2001 

OBD-equipped vehicles. Since 2000,

I/M programs across the country have 

been successfully testing MY 1996 and 

newer vehicles using the OBD-I/M test, 

in accordance with EPA requirements 

and guidance. Although older OBDequipped vehicles tend to have higher 

failure rates than newer OBD-equipped 

vehicles, this relationship holds true for 

all older versus newer vehicles. 

The reason EPA proposes to limit 

coverage of the OBD test as part of the 

proposed 8-hour I/M performance 

standards goes to the heart of why the 

CAA required EPA to establish 

performance standards as opposed to 

mandating program designs: Flexibility. 

Test type coverage is one of the 

mechanisms used in setting an I/M 

performance standard that can either 

increase or all but eliminate the level of 

flexibility states will have in designing 

their own I/M programs. If, for example, 

EPA established a performance standard 

using maximum MY coverage of the 

most rigorous test available, the 

performance standard would effectively 

cease to be a ‘‘performance standard’’

and would become, instead, a 

mandatory program design. 

In 1992 when the original I/M 

performance standards were 

established, OBD testing was included 

in the performance standards only as an 

uncredited placeholder because, at the 

time, no OBD-equipped vehicles were 

available for test credit assessment. 

Since that time, however, EPA has done 

extensive testing of OBD-equipped 

vehicles and the effectiveness of OBD 

testing. As a result, EPA’s mobile source 

emission factor model (currently 

MOBILE6.2) affords OBD testing the 

maximum credit available to any I/M 

test. This, in turn, means that what was 

previously an uncredited placeholder 

has now become the driving factor in 

determining how much or how little 

flexibility is reflected in the I/M 

performance standards. 

EPA is proposing MY 2001 and newer 

as the model year coverage for the OBD 

test in the 8-hour I/M performance 

standards because that is the level of 

coverage that has been found (through 

modeling) to afford 8-hour areas newly 

subject to I/M the same level of 

flexibility included in the existing I/M 

regulations and currently available to I/

M programs required under the 1-hour 

standard. MY 2001 was chosen to 

ensure that new and existing programs 

are held to comparable standards. EPA 

invites commenters interested in 

proposing alternative ranges of model 

year coverage to provide their 

recommendations, including an 

explanation addressing why the 

alternative is preferable to today’s 

proposal. 

8. How Much Flexibility Will States 

Have in Designing Their Newly 

Required, 8-Hour I/M Programs To Meet 

EPA’s Proposed I/M Performance 

Standards Under the 8-Hour Ozone 

Standard? 

Under EPA’s proposal, areas newly 

subject to I/M under the 8-hour ozone 

standard will have approximately the 

same level of flexibility that currently 

exists for areas subject to I/M as a result 

of the 1-hour standard. That said, 

designing a new I/M program will 

nevertheless involve facing different 

opportunities and/or challenges than 

were faced in the mid-1990’s when 

many of today’s current programs were 

designed. This is because the vehicle 

fleet is not static; as time passes—and 

standards and requirements change—

the relative proportion of old to new 

technology vehicles is constantly 

changing, with the percent and number 

of older technology vehicles shrinking 

as newer technology vehicles begin to 

dominate the in-use fleet. 

In the mid-1990’s, fleet turnover was 

not much of an issue when it came to 

designing I/M programs because even 

though testing technology had evolved 

considerably since the simple idle test, 

the new tests were, for the most part, 

downwardly compatible. An IM240 

could be used to test a 1968 model year 

vehicle just as readily as it could test a 

1993 model year vehicle. Such is no 

longer the case with the OBD test, 

which, while inexpensive, accurate, 

easy, and effective, can only be 

performed on OBD-equipped vehicles 

(i.e., light-duty vehicles and trucks, MY 

1996 and newer). Given the substantial 

difference in capital investment 

involved in traditional tailpipe testing 

1318 Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 

2A copy of the full document from which these 

criteria are drawn is located in the docket for this 

action (Docket # OAR–2004–0095).

3 It should be noted that any revision to an 

existing I/M program which is part of a previously 

approved SIP will require the submission and 

approval of a SIP revision prior to those revisions 

going into effect.

(and especially dynamometer-based 

testing like the IM240 and ASM) versus 

that associated with the OBD test, areas 

newly required to implement I/M under 

the 8-hour standard will face a 

challenge not faced by I/M programs 

which began testing in the 1990’s or 

earlier—namely, how to take full 

advantage of the evolving nature of the 

in-use fleet. As suggested earlier, one 

important characteristic of that evolving 

in-use fleet is the rate at which OBDequipped vehicles are becoming an 

increasing proportion of any fleet while 

non-OBD-equipped vehicles play an 

ever shrinking role, in terms of absolute 

numbers as well as overall contribution 

to an area’s VMT and the local mobile 

source emission inventory. This trend 

toward an OBD majority in-use fleet will 

only become more pronounced as time 

goes on, making the prospect of an I/M 

program that relies exclusively (or 

nearly exclusively) on OBD testing an 

attractive alternative to traditional, 

tailpipe-based testing. 

Based upon the time period 

associated with implementing the 8-

hour ozone standard and the national 

default rate of fleet turnover from nonOBD-equipped to OBD-equipped 

vehicles, EPA believes that both of 

today’s proposed basic and enhanced I/

M performance standards can be met by 

a state program that exempts model year 

1995 and older vehicles from testing 

and only performs the OBD and gas cap 

test on MY 1996 and newer, OBDequipped vehicles. The degree to which 

the proposed standards also allow for 

other forms of flexibility (such as 

allowing newer model year exemptions, 

and/or permitting the testing of vehicles 

biennially as opposed to annually) will 

depend largely upon an area’s locally 

variable parameters, such as local fleet 

age and VMT distributions. Whether 

adopting such a program will meet the 

area’s other Clean Air Act goals, 

however, will vary on a case-by-case 

basis. Item 10 of this subsection will 

discuss some of the criteria states 

should consider as they begin the 

process of developing their newly 

required I/M programs (as well as 

revamping existing programs to 

capitalize on evolving vehicle and 

vehicle testing technology).

9. Is EPA Barring 8-Hour Ozone NonAttainment Areas Newly Required To 

Adopt I/M From Performing Tailpipe 

Testing? 

No. EPA does not have the authority 

to prohibit I/M programs from tailpipe 

testing, nor would it be appropriate to 

do so. Instead, EPA is merely providing 

the flexibility needed to allow areas to 

exempt vehicles from tailpipe testing in 

favor of OBD testing on vehicles MY 

1996 and newer, if a state so desires. 

However, EPA does recommend that 8-

hour non-attainment areas newly 

required to implement I/M programs 

look closely at their local fleet 

characteristics such as age distributions, 

the fraction of local VMT attributable to 

MY 1995 and older vehicles, and the 

rate of fleet turn-over from non-OBDequipped vehicles to OBD-equipped 

vehicles to assess the financial viability 

of various program designs before 

deciding on an appropriate program 

design. For example, based upon the 

number of such vehicles in the local 

fleet, can the cost of starting up and 

running a dynamometer-based testing 

network dedicated to MY 1995 and 

older vehicles be recouped without 

charging an exorbitant per-vehicle test 

fee or subsidizing the program through 

some alternative funding mechanism, 

such as an across-the-board increase in 

vehicle registration fees? 

10. What Are Some of the Factors That 

Should Be Considered as Areas New to 

I/M Begin Designing Their Vehicle 

Inspection Programs in Response to the 

8-Hour Ozone Standard? 

As newly required (as well as 

existing) I/M programs look at ways to 

optimize those programs, it is 

appropriate to consider what 

programmatic and financial efficiencies 

and other improvements might be 

feasible. To facilitate this process, in 

2002, EPA (in consultation with the 

states and other stakeholders) developed 

a list of questions and/or issues states 

should consider as they make choices 

about their existing and/or future I/M 

programs, entitled ‘‘Considerations for 

State I/M Program Optimization,’’ 2 an 

abbreviated version of which is 

provided in the list of criteria below.

In providing this list, it is not EPA’s 

intention to advocate for one I/M 

program type or element versus another, 

or to make formal recommendations. 

The history of I/M has clearly shown 

that what is appropriate for one area is 

not always appropriate for another. The 

following list is therefore intended 

merely to outline the various factors that 

should be taken into consideration 

when designing (or redesigning) the 

optimal I/M program for a given area. It 

should be used to supplement whatever 

I/M optimization efforts may already be 

underway, to raise issues that may have 

been overlooked, and to otherwise 

ensure that the optimization process is 

as comprehensive as possible and does 

not lead to unintended consequences. 

Although today’s proposal focuses on 

those 8-hour ozone non-attainment 

areas brand-new to I/M, the list of 

criteria provided below includes 

considerations that may be relevant to 

both new and/or existing I/M 

programs.3 States should consult with 

their EPA Regional offices early in the 

I/M optimization process, and such 

efforts should be conducted taking the 

following factors into consideration:

• What portion of the state’s 

emissions inventories for ozone, CO, 

and/or air toxics do on-road mobile 

sources constitute? 

• What portion of the state’s 

attainment, maintenance, and/or Rateof-Progress (ROP) plans does and/or will 

I/M constitute? 

• How important will I/M reductions 

be in demonstrating attainment and 

transportation conformity? 

• Are there additional emission 

reduction benefits an area may need 

from an I/M program in addition to 

what is needed to meet the performance 

standard? 

• Alternatively, how much credit can 

an area afford to lose without negatively 

affecting these plans? 

• If an area with an existing I/M 

program is redesignated to attainment, 

what changes (if any) can be made 

without backsliding or interfering with 

any other CAA requirement? 

• Even if an existing I/M program 

plays a relatively modest role in a state’s 

1-hour ozone standard attainment 

strategy, what role will it play in 

attaining the 8-hour ozone standard? 

• Is the I/M program useful in 

meeting an area’s goal for reducing air 

toxics? Will an OBD-only program meet 

this goal? 

• What are the legal and/or 

contractual constraints associated with 

optimizing the I/M program? 

• What number of MYs should be 

exempted to strike the right balance 

among competing factors such as the 

likelihood of failure, equity to vehicle 

owners of exposure to program 

requirements, and the cost of testing 

clean vehicles? 

• What is the proportion of pre- to 

post-MY 1996 vehicles in the local fleet? 

When will post-MY 1996 vehicles 

predominate? 

• How do the pre- and post-MY 1996 

fleets compare in terms of the VMT 

attributed to each? When will MY 1996 

Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 1319

4A ‘‘committal SIP’’ consisted of a commitment 

from a state’s governor or his/her designee to meet 

a list of milestones leading to the submittal of a full 

SIP within 1 year.

and newer vehicles make up the 

majority of the area’s VMT? 

• What proportion of the local mobile 

source emission inventory is 

attributable to pre- vs. post-MY 1996 

vehicles?

• What are the projected failure rates 

for the pre- vs. post-MY 1996 fleets? 

• If an area already has an I/M 

program, how recent was the last change 

to the program? Will changing the 

program again undermine public 

confidence in the program? Will 

voluntarily changing the program make 

it vulnerable to pressure to incorporate 

additional, unwelcome changes? 

• Will changing an existing program 

require changes to the program’s legal 

authority? 

B. Amendments to Program Evaluation 

Requirements 

1. What Is the Program Evaluation 

Requirement? 

Section 182(c)(3)(C) of the 1990 CAA 

requires that each state subject to 

enhanced I/M shall ‘‘biennially prepare 

a report to the Administrator which 

assesses the emission reductions 

achieved by the program required under 

this paragraph based upon data 

collected during the inspection and 

repair of vehicles. The methods used to 

assess the emission reductions shall be 

those established by the Administrator.’’

Section 51.353 of EPA’s current I/M rule 

(network type and program evaluation) 

provides additional detail on how this 

requirement is to be met, including 

minimum sampling requirements and 

specific deadlines by which program 

evaluation testing must begin. 

Currently, section 51.353(c)(4) of the

I/M rule specifies that the first round of 

program evaluation testing is to begin 

‘‘no later than November 30, 1998.’’

2. What Regulatory Change Does EPA 

Propose? 

EPA proposes to revise section 

51.353(c)(4) of the I/M rule which 

currently indicates that the first round 

of program evaluation testing is to begin 

‘‘no later than November 30, 1998’’ to 

‘‘no later than 1 year after program start 

up.’’ This 12 month period prior to the 

beginning of program evaluation testing 

is comparable to that permitted under 

the original I/M program evaluation 

requirements and is intended to allow 

new programs under the 8-hour ozone 

standard the opportunity to resolve the 

sorts of start-up problems typical of 

such programs in their first few months 

of implementation. 

C. Amendments to the Basic I/M Waiver 

Requirements 

1. What Are the Basic I/M Waiver 

Requirements? 

Neither the 1990 CAA nor the existing 

I/M rule require (or prohibit) basic I/M 

programs to grant waivers from the 

program’s repair requirements once a 

minimum dollar limit has been spent 

toward repairs relevant to the cause of 

failure. To help ensure that the issuance 

of waivers did not become excessive in 

the basic I/M programs that chose to 

allow them, EPA established specific 

repair expenditure levels that had to be 

met prior to a waiver’s being granted in 

a basic I/M program as part of its 

original 1992 I/M rule. Specifically, for 

pre-1981 model year vehicles, a 

minimum of $75 has to be spent on 

relevant repairs while for 1981 and 

newer vehicles, the minimum 

expenditure level is $200. Because 

several basic I/M programs were already 

operating at the time the 1992 rule was 

promulgated—some complying with the 

waiver allowances provided in the rule, 

some not—EPA also established a 

deadline by which the new 

requirements were to be met (i.e., ‘‘no 

later than January 1, 1998’’). 

2. What Regulatory Change Does EPA 

Propose? 

EPA proposes to amend section 

51.360(a)(6) which sets the deadline for 

establishing waiver limits for those 

basic I/M programs choosing to allow 

waivers (currently, ‘‘no later than 

January 1, 1998’’) to read ‘‘January 1, 

1998, or coincident with program start 

up, whichever is later.’’ Since all 

existing programs should already be 

meeting these requirements and 

requiring spending limits prior to 

waiver will impose no additional 

program implementation delay in areas 

newly starting programs, EPA sees no 

reason to delay implementation of these 

requirements for either new or existing 

programs. 

D. Amendments to Update SIP 

Submission Deadlines 

1. What Are the Current SIP Submission 

Deadlines? 

Under the CAA as amended in 1990, 

areas required to implement basic I/M 

programs were to submit SIP revisions 

for such programs ‘‘immediately after 

the date of enactment’’ of the 1990 Act. 

The basic I/M programs submitted 

under this provision were to be based 

upon pre-existing EPA I/M guidance 

that was in effect immediately before 

passage of the 1990 Act. As a separate 

(but related) matter, the 1990 CAA 

required EPA to revise this pre-1990

I/M guidance within 12 months of 

enactment. Enhanced I/M SIPs were 

required to be submitted 1 year after 

EPA was to have published its revised 

I/M guidance (i.e., two years after 

enactment). Previously submitted basic 

I/M SIPs were required to be revised to 

incorporate EPA’s revised I/M guidance.

The Act did not define what was 

meant by the term ‘‘immediately,’’ nor 

did it attempt to explain how such a 

requirement might be met, especially for 

areas new to the I/M requirement and 

therefore lacking the necessary legal 

authority and implementing regulations. 

To provide basic I/M program areas a 

reasonable amount of time in which to 

prepare and submit the required basic

I/M SIP, EPA proposed to use its 

authority to grant conditional approvals 

under section 110(k)(4) of the 1990 CAA 

to give these areas up to 1 year after 

conditional approval of a so-called 

‘‘committal SIP’’.4 EPA was challenged 

on its attempt to extend I/M SIP 

deadlines through the SIP approval 

process and although the court found 

that 110(k)(4) could not be used to effect 

such extensions, in its decision, the 

court identified the states’ need for 

further guidance from EPA in the case 

of enhanced I/M programs as the 

deciding factor regarding whether or not 

a given I/M deadline extension was 

justified. See Natural Resources Defense 

Council, Inc. v. EPA, et al., 22 F.3d 1125 

(D.C. Cir. 1994). Because existing pre1990 I/M policy was adequate for a state 

to develop and submit a basic I/M SIP, 

the court ruled that EPA’s attempt to 

extend the basic I/M SIP submittal 

deadline was unjustified in that case. In 

the case of enhanced I/M programs, 

however, existing pre-1990 I/M policy 

was not adequate and enhanced I/M 

areas could not proceed with SIP 

development until after EPA published 

its revised guidance. In this latter case, 

therefore, the court ruled that although 

110(k)(4) should not have been used, 

extending the SIP submittal deadline for 

enhanced I/M SIPs was justified, given 

that EPA’s guidance was not published 

until 10 days before those SIPs were 

due.

Unlike 1990 when basic and 

enhanced I/M programs differed with 

regard to the availability of adequate 

existing EPA guidance from which to 

proceed with SIP development, under 

the 8-hour ozone standard newly 

required I/M programs of either variety 

are equally dependent upon EPA’s 

1320 Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 

revising its existing I/M regulations. As 

previously discussed, many of the 

timing-related requirements of the I/M 

rule are no longer relevant within the 

context of the 8-hour ozone standard 

and must therefore be revised before 

states can proceed with I/M SIP 

development. For example, if we were 

to apply the existing basic I/M 

performance standard (as written) to a 

newly required, basic I/M program area 

under the new standards, that area 

would be required to demonstrate that 

back in 1996 (when it had no I/M 

program in place) it was nevertheless 

achieving the same or better emission 

reductions from that non-existent 

program as it would have achieved if 

the performance standard program had 

been in place. Clearly, this would be an 

absurd requirement, and that is why 

EPA is proposing to adopt a more 

rational approach, as discussed below. 

Thus EPA believes that consistent with 

the NRDC case, it is appropriate to 

interpret the I/M SIP submittal 

requirement of the CAA to allow areas 

subject to that requirement to have a 

reasonable time after promulgation of 

EPA’s revised I/M rulemaking to adopt 

and submit such programs. EPA 

concludes that any other interpretation 

of the statute would produce absurd 

results. 

2. What Regulatory Change Does EPA 

Propose? 

Because areas newly required to adopt 

either basic or enhanced I/M programs 

under the 8-hour ozone standard are 

unable to produce a complete and 

approvable SIP until EPA has revised its 

existing I/M regulations, EPA proposes 

to update section 51.372 (state 

implementation plan submissions) to 

clarify that such areas are required to 

submit their I/M SIPs, whether basic or 

enhanced, within 1 year after the 

effective date of EPA’s taking final 

action on the I/M rule revisions 

proposed here today. For areas newly 

designated as non-attainment under the 

8-hour ozone standard after finalization 

of this proposal, we propose that those 

areas submit their I/M SIPs within 1 

year of the effective date of their 

designation and classification. Based 

upon its experience with the submission 

of I/M SIPs in response to the 1990 Act’s 

requirements for 1-hour I/M programs, 

EPA deems this to be a reasonable 

amount of time in which to develop and 

submit an I/M SIP, given the states’

need to secure legal authority, develop 

implementing regulations, provide 

notice-and-comment opportunity, etc. 

As noted by EPA both in its general 

preamble published after the 1990 

amendments to the Act and in the 1992 

I/M rules, 57 FR 13498, 13517 and 57 

FR 52950, 52970, respectively, EPA has 

long believed that one year is an 

appropriate time period for states to 

obtain necessary legislative authority to 

adopt and submit an I/M program. 

E. Amendments To Update 

Implementation Deadlines 

1. What Are the Current Implementation 

Deadlines? 

Under section 51.373 of the 1992 I/M 

rule, non-attainment areas required to 

begin (or upgrade) basic I/M programs 

as a result of their classification under 

the 1990 CAA were given until January 

1994 to begin implementing if a 

decentralized program was adopted, or 

July 1994, if a centralized program was 

adopted. Areas newly required to adopt 

basic I/M as a result of being designated 

and classified after promulgation of the 

1992 I/M rule were required to begin 

implementation one year after obtaining 

legal authority (if a decentralized 

program was adopted) or two years after 

obtaining legal authority (if a 

centralized program was adopted). 

Enhanced I/M program areas required as 

a result of being designated and 

classified under the 1990 CAA were 

allowed to phase-in implementation of 

the enhanced I/M program between 

January 1, 1995 and January 1, 1996, 

provided at least 30% of the I/M vehicle 

population was subject to the full 

requirements of the program as of 

January 1, 1995. Areas newly required 

to adopt enhanced I/M as a result of 

being designated and classified after 

promulgation of the 1992 I/M rule were 

required to begin implementation two 

years after obtaining legal authority. 

Separately, section 51.373 of the I/M 

rule established a range of deadline 

options for implementation of the OBD 

checks required of all I/M programs 

under the 1990 CAA. While the 

deadline for requiring repairs based 

upon the OBD test varied depending 

upon the phase-in option chosen by the 

program, all I/M programs required as a 

result of being designated and classified 

under the 1-hour ozone standard were 

required to begin some form of OBD 

testing no later than January 1, 2003.

2. What Regulatory Change Does EPA 

Propose? 

EPA proposes to revise section 51.373 

(implementation deadlines) to replace 

the current fixed implementation 

deadlines for I/M programs required as 

a result of designation and classification 

after 1992 with a new, relative 

implementation deadline for areas 

newly subject to I/M as a result of being 

designated non-attainment under the 8-

hour ozone standard and classified as 

moderate non-attainment or higher. 

Specifically, EPA proposes that all I/M 

programs newly required based upon 

their designation and classification 

under the 8-hour ozone standard—

whether basic or enhanced—begin full 

implementation of the required program 

within 4 years after the effective date of 

designation and classification under the 

8-hour ozone standard. EPA believes 

that the proposed implementation 

deadline is reasonable and necessary to 

allow for sufficient time to construct 

and start-up a program after program 

adoption following EPA promulgation 

of final guidance, as well as to provide 

a minimum of one full, biennial test 

cycle prior to the first milestone date for 

newly required I/M programs under the 

8-hour ozone standard (i.e., the 

attainment deadline for moderate 8-hour 

ozone non-attainment areas, which is 6 

years after the effective date of 

designation and classification, as 

described below). 

Additionally, EPA proposes to clarify 

that the deadline for beginning pass-fail 

OBD checks for areas newly required to 

perform I/M testing as a result of being 

designated and classified under the 8-

hour ozone standard is coincident with 

implementation of all other program 

elements, i.e., within 4 years after the 

effective date of designation and 

classification. Since current model year 

vehicles are all OBD equipped and 

viable OBD test methods have been 

available for a number of years EPA sees 

no reason to delay start up of OBD 

testing beyond the start date of the 

program as a whole. 

V. Discussion of Major Issues 

A. Impact on Existing I/M Programs 

The proposed amendments to the I/M 

rule do not change the requirements that 

currently apply to existing I/M programs 

required as a result of being classified 

under the 1-hour ozone standard. The 

proposed amendments are directed 

specifically at those areas that will be 

newly required to implement I/M as a 

result of being designated and classified 

under the 8-hour ozone standard. The 

intention of these proposed 

amendments is to ensure that these new 

program areas are afforded generally the 

same level of flexibility in program 

design and implementation as is 

currently available to existing, 1-hour

I/M programs. Readers interested in 

learning the conditions under which an 

existing 1-hour I/M program must 

continue operation under the 8-hour 

standard should consult the antibacksliding provisions of the April 30, 

2004 final rulemaking which 

Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 1321

5Additional guidance on anti-backsliding under 

the 8-hour standard and how it applies to I/M 

programs can be found in the May 12, 2004 policy 

memo signed by Tom Helms, Ozone Policy and 

Strategies Group, and Leila Cook, State Measures 

and Conformity Group, entitled ‘‘1-Hour Ozone 

Maintenance Plans Containing Basic I/M 

Programs,’’ a copy of which is contained in the 

docket for this proposed rulemaking.

established several key requirements for 

implementing the 8-hour ozone 

standard (69 FR 23931).5

B. Impact on Future I/M Programs 

The proposed amendments are 

intended specifically for those areas 

which currently do not perform I/M 

testing, but will be required to do so as 

a result of being designated and 

classified under the 8-hour ozone 

standard. Should they be made final, 

these amendments will allow future I/M 

program areas the flexibility necessary 

to design from the ground up 

reasonable, cost effective, motoristfriendly I/M programs that take full 

advantage of advances in vehicle and 

vehicle-testing technology, as well as 

fleet turnover. The level of flexibility 

proposed to be provided for these new 

program areas is comparable to the level 

of flexibility already available to 

existing 1-hour I/M programs. 

VI. Economic Costs and Benefits 

Today’s proposed revisions provide 

states with an incentive to increase the 

cost effectiveness and efficiency of 

future I/M programs. The proposal, if 

finalized, will lessen rather than 

increase the potential economic burden 

on states of implementing such 

programs. Furthermore, states are under 

no obligation, legal or otherwise, to 

modify existing plans meeting the 

previously applicable requirements as a 

result of today’s proposal. 

VII. Public Participation 

EPA desires full public participation 

in arriving at final decisions in this 

rulemaking action. EPA solicits 

comments on all aspects of this proposal 

from all parties. Wherever applicable, 

full supporting data and detailed 

analysis should also be submitted to 

allow EPA to make maximum use of the 

comments. All comments should be 

directed to the Air Docket, Docket No. 

OAR–2004–0095. 

VIII. Administrative Requirement 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735; October 4, 1993) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines significant 

‘‘regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more, or 

otherwise adversely affect in a material 

way the economy, a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order.

Pursuant to the terms of Executive 

Order 12866, OMB has notified EPA 

that it considers this a ‘‘significant 

regulatory action’’ within the meaning 

of the Executive Order. EPA has 

submitted this action to OMB for 

review. Changes made in response to 

OMB suggestions or recommendations 

will be documented in the public 

record. 

B. Paperwork Reduction Act 

There are no additional information 

requirements in this proposed rule 

beyond those already imposed by the 

existing I/M rule which require the 

approval of the Office of Management 

and Budget under the Paperwork 

Reduction Act 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act, 5 U.S.C. 

605(b), the Administrator certifies that 

this proposal will not have a significant 

economic impact on a substantial 

number of small entities and, therefore, 

is not subject to the requirement of a 

Regulatory Impact Analysis. A small 

entity may include a small government 

entity or jurisdiction. This certification 

is based on the fact that the I/M areas 

impacted by the proposed rulemaking 

do not meet the definition of a small 

government jurisdiction, that is, 

‘‘governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than 50,000.’’ The basic and 

enhanced I/M requirements only apply 

to urbanized areas with population in 

excess of 200,000 depending on 

location. Furthermore, the impact 

created by the proposed action does not 

increase the preexisting burden of the 

existing rules which this proposal seeks 

to amend. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this 

proposed rule itself does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. The primary purpose of 

this proposed rule is to amend the 

existing federal I/M regulations to 

provide flexibility in how the 

regulations cover areas newly 

designated non-attainment under the 8-

hour ozone ambient air quality 

standards. Clean Air Act sections 

182(b)(4) and 182(c)(3) require the 

applicability of I/M to such areas. Thus, 

although this rule explains how I/M 

1322 Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 

should be conducted, it merely 

implements already established law that 

imposes I/M requirements and does not 

itself impose requirements that may 

result in expenditures of $100 million or 

more in any year. The intention of this 

proposal is to improve the I/M 

regulation by implementing the rule in 

a more practicable manner and/or to 

clarify I/M requirements that already 

exist. None of these proposed 

amendments impose any additional 

burdens beyond that already imposed 

by applicable federal law; thus, today’s 

proposed rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA and EPA has not prepared a 

statement with respect to budgetary 

impacts. 

E. Executive Order 13132: Federalism 

Executive Order 13132, Federalism 

(64 FR 43255, August 10, 1999), revokes 

and replaces Executive Orders 12612 

(Federalism) and 12875 (Enhancing the 

Intergovernmental Partnership). 

Executive Order 13132 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 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 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. 

If EPA complies by consulting, 

Executive Order 13132 requires EPA to 

provide to the Office of Management 

and Budget (OMB), in a separately 

identified section of the preamble to the 

rule, a federalism summary impact 

statement (FSIS). The FSIS must include 

a description of the extent of EPA’s 

prior consultation with State and local 

officials, a summary of the nature of 

their concerns and the Agency’s 

position supporting the need to issue 

the regulation, and a statement of the 

extent to which the concerns of State 

and local officials have been met. Also, 

when EPA transmits a draft rule with 

federalism implications to OMB for 

review pursuant to Executive Order 

12866, EPA must include a certification 

from the Agency’s Federalism Official 

stating that EPA has met the 

requirements of Executive Order 13132 

in a meaningful and timely manner.

This proposed rule, that amends a 

regulation that is required by statute, 

will not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in Executive Order 13132. The 

Clean Air Act requires I/M to apply in 

certain non-attainment areas as a matter 

of law, and this proposed rule merely 

provides areas newly designated as nonattainment under the 8-hour ozone 

standard additional flexibility with 

regard to meeting their existing statutory 

obligations. 

In summary, this proposed rule is 

required primarily by the statutory 

requirements imposed by the Clean Air 

Act, and the proposed rule by itself will 

not have a substantial impact on States. 

Thus, the requirements of section 6 of 

the Executive Order do not apply to this 

proposed rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175: ‘‘Consultation 

and Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

6, 2000) requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

Today’s amendments to the I/M rule 

do not significantly or uniquely affect 

the communities of Indian tribal 

governments. Specifically, this 

proposed rule would incorporate into 

the I/M rule flexible provisions 

addressing newly designated 8-hour 

ozone non-attainment areas subject to I/

M requirements under the Act, and 

these provisions would not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes, 

as specified in Executive Order 13175. 

Accordingly, the requirements of 

Executive Order 13175 are not 

applicable to this proposal. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This proposed rule is not subject to 

Executive Order 13045 because it is not 

economically significant within the 

meaning of Executive Order 12866 and 

does not involve the consideration of 

relative environmental health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Action Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355; May 22, 2001) because it will 

not have a significant adverse effect on 

the supply, distribution, or use of 

energy. Further, we have determined 

that this proposed rule is not likely to 

have any significant adverse effects on 

energy supply. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 1323

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

the use of voluntary consensus 

standards does not apply to this 

proposed rule.

List of Subjects in 40 CFR Part 51

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Transportation.

Dated: December 22, 2004. 

Michael O. Leavitt, 

Administrator.

For the reasons set out in the 

preamble, part 51 of chapter I, title 40 

of the Code of Federal Regulations is 

proposed to be amended as follows:

PART 51—[AMENDED] 

1. The authority citation for Part 51 

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401–

7671q.

2. Section 51.351 is proposed to be 

amended by revising paragraph (c) and 

adding a new paragraph (i) to read as 

follows:

§ 51.351 Enhanced I/M performance 

standard.

* * * * *

(c) On-board diagnostics (OBD). For 

those areas required to implement an 

enhanced I/M program prior to the 

effective date of designation and 

classifications under the 8-hour ozone 

standard, the performance standard 

shall include inspection of all model 

year 1996 and later light-duty vehicles 

and light-duty trucks equipped with 

certified on-board diagnostic systems, 

and repair of malfunctions or system 

deterioration identified by or affecting 

OBD systems as specified in § 51.357, 

and assuming a start date of 2002 for 

such testing. For areas required to 

implement enhanced I/M as a result of 

designation and classification under the 

8-hour ozone standard, the performance 

standard defined in paragraph (i) of this 

section shall include inspection of all 

model year 2001 and later light-duty 

vehicles and light-duty trucks equipped 

with certified on-board diagnostic 

systems, and repair of malfunctions or 

system deterioration identified by or 

affecting OBD systems as specified in 

§ 51.357, and assuming a start date of 4 

years after the effective date of 

designation and classification under the 

8-hour ozone standard.

* * * * *

(i) Enhanced performance standard 

for areas designated and classified 

under the 8-hour ozone standard. Areas 

required to implement an enhanced I/M 

program as a result of being designated 

and classified under the 8-hour ozone 

standard, must meet or exceed the HC 

and NOX emission reductions achieved 

by the model program defined below: 

(1) Network type. Centralized testing. 

(2) Start date. 4 years after the 

effective date of designation and 

classification under the 8-hour ozone 

standard.

(3) Test frequency. Annual testing. 

(4) Model year coverage. Testing of 

1968 and newer vehicles. 

(5) Vehicle type coverage. Light duty 

vehicles, and light duty trucks, rated up 

to 8,500 pounds GVWR. 

(6) Emission test type. Idle testing (as 

described in appendix B of subpart S) 

for 1968–2000 vehicles; onboard 

diagnostic checks on 2001 and newer 

vehicles. 

(7) Emission standards. Those 

specified in 40 CFR part 85, subpart W. 

(8) Emission control device 

inspections. Visual inspection of the 

positive crankcase ventilation valve on 

all 1968 through 1971 model year 

vehicles, inclusive, and of the exhaust 

gas recirculation valve on all 1972 and 

newer model year vehicles. 

(9) Evaporative system function 

checks. None, with the exception of 

those performed by the OBD system on 

vehicles so-equipped and only for 

model year 2001 and newer vehicles. 

(10) Stringency. A 20% emission test 

failure rate among pre-1981 model year 

vehicles. 

(11) Waiver rate. A 3% waiver rate, as 

a percentage of failed vehicles. 

(12) Compliance rate. A 96% 

compliance rate. 

(13) Evaluation date. Enhanced I/M 

program areas subject to the provisions 

of this paragraph (i) shall be shown to 

obtain the same or lower emission levels 

for HC and NOX as the model program 

described in this paragraph assuming an 

evaluation date set 6 years after the 

effective date of designation and 

classification under the 8-hour ozone 

standard (rounded to the nearest July) to 

within +/¥0.02 gpm. Subject programs 

shall demonstrate through modeling the 

ability to maintain this percent level of 

emission reduction (or better) through 

their attainment date for the 8-hour 

ozone standard, also rounded to the 

nearest July.

* * * * *

3. Section 51.352 is proposed to be 

amended by revising paragraph (c) and 

adding a new paragraph (e) to read as 

follows:

§ 51.352 Basic I/M performance standard.

* * * * *

(c) On-board diagnostics (OBD). For 

those areas required to implement a 

basic I/M program prior to the effective 

date of designation and classification 

under the 8-hour ozone standard, the 

performance standard shall include 

inspection of all model year 1996 and 

later light-duty vehicles equipped with 

certified on-board diagnostic systems, 

and repair of malfunctions or system 

deterioration identified by or affecting 

OBD systems as specified in § 51.357, 

and assuming a start date of 2002 for 

such testing. For areas required to 

implement basic I/M as a result of 

designation and classification under the 

8-hour ozone standard, the performance 

standard defined in paragraph (e) of this 

section shall include inspection of all 

model year 2001 and later light-duty 

vehicles equipped with certified onboard diagnostic systems, and repair of 

malfunctions or system deterioration 

identified by or affecting OBD systems 

as specified in § 51.357, and assuming a 

start date of 4 years after the effective 

date of designation and classification 

under the 8-hour ozone standard.

* * * * *

(e) Basic performance standard for 

areas designated non-attainment for the 

8-hour ozone standard. Areas required 

to implement a basic I/M program as a 

result of being designated and classified 

under the 8-hour ozone standard, must 

meet or exceed the emission reductions 

achieved by the model program defined 

below for the applicable ozone 

precursor(s): 

(1) Network type. Centralized testing. 

(2) Start date. 4 years after the 

effective date of designation and 

classification under the 8-hour ozone 

standard. 

(3) Test frequency. Annual testing. 

(4) Model year coverage. Testing of 

1968 and newer vehicles. 

(5) Vehicle type coverage. Light duty 

vehicles. 

(6) Emission test type. Idle testing (as 

described in appendix B of subpart S) 

for 1968–2000 vehicles; onboard 

diagnostic checks on 2001 and newer 

vehicles. 

(7) Emission standards. Those 

specified in 40 CFR part 85, subpart W. 

(8) Emission control device 

inspections. None. 

(9) Evaporative system function 

checks. None, with the exception of 

those performed by the OBD system on 

vehicles so-equipped and only for 

model year 2001 and newer vehicles. 

1324 Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Proposed Rules 

(10) Stringency. A 20% emission test 

failure rate among pre-1981 model year 

vehicles. 

(11) Waiver rate. A 0% waiver rate, as 

a percentage of failed vehicles. 

(12) Compliance rate. A 100% 

compliance rate. 

(13) Evaluation date. Basic I/M 

program areas subject to the provisions 

of this paragraph (e) shall be shown to 

obtain the same or lower emission levels 

as the model program described in this 

paragraph by an evaluation date set 6 

years after the effective date of 

designation and classification under the 

8-hour ozone standard (rounded to the 

nearest July) for the applicable ozone 

precursor(s).

* * * * *

4. Section 51.353 is proposed to be 

amended by revising paragraph (c)(4) to 

read as follows:

§ 51.353 Network type and program 

evaluation.

* * * * *

(c) * * *

(4) The program evaluation test data 

shall be submitted to EPA and shall be 

capable of providing accurate 

information about the overall 

effectiveness of an I/M program, such 

evaluation to begin no later than 1 year 

after program start-up.

* * * * *

5. Section 51.360 is proposed to be 

amended by revising paragraph (a)(6) to 

read as follows:

§ 51.360 Waivers and compliance via 

diagnostic inspection.

* * * * *

(a) * * *

(6) In basic programs, a minimum of 

$75 for pre-81 vehicles and $200 for 

1981 and newer vehicles shall be spent 

in order to qualify for a waiver. These 

model year cutoffs and the associated 

dollar limits shall be in full effect by 

January 1, 1998, or coincident with 

program start-up, whichever is later. 

Prior to January 1, 1998, States may 

adopt any minimum expenditure 

commensurate with the waiver rate 

committed to for the purposes of 

modeling compliance with the basic

I/M performance standard.

* * * * *

6. Section 51.372 is proposed to be 

amended by removing and reserving 

paragraph (b)(1) and (b)(3) and by 

revising paragraph (b)(2) to read as 

follows:

§ 51.372 State implementation plan 

submissions.

* * * * *

(b) * * *

(2) A SIP revision required as a result 

of designation for a National Ambient 

Air Quality Standard in place prior to 

implementation of the 8-hour ozone 

standard and including all necessary 

legal authority and the items specified 

in paragraphs (a)(1) through (a)(8) of this 

section, shall be submitted no later than 

November 15, 1993. For non-attainment 

areas designated and classified under 

the 8-hour ozone standard, a SIP 

revision including all necessary legal 

authority and the items specified in 

paragraphs (a)(1) through (a)(8) of this 

section, shall be submitted by [insert 

date 12 months after the effective date 

of EPA’s final action on this proposal] 

or 1 year after the effective date of 

designation and classification under the 

8-hour ozone National Ambient Air 

Quality Standard, whichever is later.

* * * * *

7. Section 51.373 is proposed to be 

amended by removing and reserving 

paragraph (e), by revising paragraphs 

(b), and (d), and by adding a new 

paragraph (h), all to read as follows:

§ 51.373 Implementation deadlines.

* * * * *

(b) For areas newly required to 

implement basic I/M as a result of 

designation under the 8-hour ozone 

standard, the required program shall be 

fully implemented no later than 4 years 

after the effective date of designation 

and classification under the 8-hour 

ozone standard.

* * * * *

(d) For areas newly required to 

implement enhanced I/M as a result of 

designation under the 8-hour ozone 

standard, the required program shall be 

fully implemented no later than 4 years 

after the effective date of designation 

and classification under the 8-hour 

ozone standard.

* * * * *

(h) For areas newly required to 

implement either a basic or enhanced

I/M program as a result of being 

designated and classified under the 8-

hour ozone standard, such programs 

shall begin OBD testing on subject OBDequipped vehicles coincident with 

program start-up.

* * * * *

[FR Doc. 05–177 Filed 1–5–05; 8:45 am] 

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