

[Federal Register: April 7, 2006 (Volume 71, Number 67)]
[Rules and Regulations]               
[Page 17705-17712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap06-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2004-0095; FRL-8054-3]
RIN 2060-AM21

 
Amendments to Vehicle Inspection Maintenance Program Requirements 
to Address the 8-Hour National Ambient Air Quality Standard for Ozone

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Today's action revises the Motor Vehicle Inspection/
Maintenance (I/M) regulation to update submission and implementation 
deadlines and other timing-related requirements to more appropriately 
reflect the implementation schedule for meeting the 8-hour National 
Ambient Air Quality Standard (NAAQS) for ozone. This action is directed 
specifically at those areas that will be newly required to implement I/
M as a result of being designated and classified under the 8-hour ozone 
standard; the conditions under which an existing I/M program under the 
1-hour ozone standard must continue operation under the 8-hour standard 
are addressed through application of the Clean Air Act's anti-
backsliding provisions.

DATES: This rule is effective May 8, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OAR-2004-0095. All documents in the docket are listed on the http://www.regulations.gov
 Web site. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov
 or in hard copy at the EPA Public Reading Room, 

Room B102, EPA West Building, 1301 Constitution Avenue, NW., 
Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m. Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: David Sosnowski, Office of 
Transportation and Air Quality, Transportation and Regional Programs 
Division, 2000 Traverwood, Ann Arbor, Michigan 48105. Telephone (734) 
214-4823.

SUPPLEMENTARY INFORMATION: 

I. Table of Contents
II. Summary of Action
III. Authority
IV. Public Participation
    A. Amendments to the I/M Performance Standards
    B. Amendments to Program Evaluation Requirements
    C. Amendments to Update SIP Submission Deadlines
V. Discussion of Major Issues
    A. Impact on Existing I/M Programs
    B. Impact on Future I/M Programs
VI. Economic Costs and Benefits
VII. Statutory and Executive Order Review
    A. Executive Order 12866: Regulatory Planning and Review
    B. Reporting and Recordkeeping Requirement
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act
    K. Petitions for Judicial Review

II. Summary of Action

    When the I/M rule was first published in November 1992, some of the 
deadlines were expressed relatively (e.g., ``within X years of Y * * 
*'')

[[Page 17706]]

while others were set as explicit dates (e.g., ``no later than November 
15, 1993 * * *''). Several of those explicit deadlines have since 
passed or otherwise been rendered irrelevant due to actions such as the 
revocation of the 1-hour ozone standard (the majority of deadlines 
contained in the original 1992 I/M rule were linked to the 1-hour 
standard and its associated milestones for attainment and interim 
progress). Today's action finalizes the revisions to the I/M rule that 
were proposed January 6, 2005 (70 FR 1314). These revisions are aimed 
at such timing-related references as submission dates, start dates, 
evaluation dates, and other milestones and/or deadlines and are being 
made to make the I/M rule relevant for those areas that will be newly 
required to begin I/M programs as a result of being designated and 
classified under the 8-hour ozone standard.
    This action does not revise or establish new requirements for 
existing I/M programs that were established in response to the 1-hour 
ozone standard. In general, if an existing I/M area was not able to 
redesignate to attainment for the 1-hour ozone standard prior to 
revocation of that standard (and is also designated as non-attainment 
for the 8-hour standard, regardless of classification or subpart) then 
that area is required to continue implementing an I/M program until it 
has attained the 8-hour ozone standard under EPA's anti-backsliding 
regulations promulgated to facilitate transition from planning for the 
1-hour to the 8-hour ozone standard. Readers interested in learning 
more about how the Clean Air Act's (Act or CAA) anti-backsliding 
provisions apply to I/M under the 8-hour standard should consult 40 CFR 
51.905 (``Transition from the 1-hour NAAQS to the 8-hour NAAQS and 
anti-backsliding'') as well as the May 12, 2004 memorandum concerning 
exceptions to the general anti-backsliding policy for certain 
maintenance areas signed by Tom Helms and Leila Cook entitled ``1-Hour 
Ozone Maintenance Plans Containing Basic I/M Programs,'' a copy of 
which is contained in the docket for this rulemaking.
    Upon becoming effective, today's action will: (1) Revise Sec. Sec.  
51.351 and 51.352 (the basic and enhanced I/M performance standards) to 
update the start date and model year coverage associated with specific 
elements of the basic and enhanced I/M performance standards as well as 
to set the benchmark comparison date(s) for performance standard 
modeling purposes that better reflects milestones associated with the 
8-hour ozone standard; (2) revise Sec.  51.353 (network type and 
program evaluation) to make the deadline for beginning the first round 
of program evaluation testing (which is currently listed as ``no later 
than November 30, 1998'') a relative deadline keyed to the date of 
program start up; (3) amend Sec.  51.360 (waivers and compliance via 
diagnostic inspection) so that the deadline for establishing full 
waiver limits for those basic I/M programs choosing to allow waivers 
(currently, ``no later than January 1, 1998'') becomes ``January 1, 
1998, or coincident with program start up, whichever is later''; (4) 
update Sec.  51.372 (state implementation plan submissions) to set the 
I/M SIP submission deadline for areas newly required to adopt I/M 
programs under the 8-hour ozone standard as 1 year after the effective 
date of today's action or 1 year after the effective date of 
designation and classification under the 8-hour standard (whichever is 
later); (5) update Sec.  51.373 (implementation deadlines) to establish 
the implementation deadline for new I/M programs required under the 8-
hour standard as 4 years after the effective date of designation and 
classification under the 8-hour ozone standard; and (6) revise Sec.  
51.373 (implementation deadlines) to clarify that the deadline for 
beginning OBD testing for areas newly required to implement I/M as a 
result of being designated and classified under the 8-hour ozone 
standard is ``coincident with program start up.''

III. Authority

    Authority for the rule changes being made as a result of today's 
action is granted to EPA by sections 182, 184, 187, and 118 of the 
Clean Air Act as amended (42 U.S.C. 7401, et seq.).

IV. Public Participation

    Written comments on the January 6, 2005 Notice of Proposed 
Rulemaking (NPRM) were received from three sources prior to the close 
of the public comment period on February 7, 2005. The commenters 
included two state environmental agencies and one I/M testing 
contractor. Several of the comments received fell well outside the 
scope of the January 6, 2005 proposal and often requested additional 
flexibility for existing I/M programs which EPA does not have the legal 
authority to grant under the Clean Air Act as it is currently written. 
These comments, while noted, will not be addressed in today's action. 
No comments were received on the proposed amendments to the basic I/M 
waiver requirements or implementation deadlines, and these amendments 
will therefore be finalized as proposed. (For more information on these 
amendments, please see the January 6, 2005 proposal, section IV(C), 
``Amendments to the Basic I/M Waiver Requirements,'' and section IV(E), 
``Amendments to Update Implementation Deadlines.'') The remaining 
comments are summarized and responded to below, under the proposed 
revision(s) to which they apply.

A. Amendments to the I/M Performance Standards

1. Summary of Proposal
    EPA proposed to revise the basic I/M performance standard for areas 
newly required to implement a basic I/M program as a result of being 
designated and classified under the 8-hour ozone NAAQS as follows: (1) 
Start date: Four years after the effective date of designation and 
classification under the 8-hour ozone standard; \1\ (2) emission test 
types: Model Year (MY) 1968-2000--idle, MY 2001 and newer--onboard 
diagnostic (OBD) check; (3) evaluation date: six years after the 
effective date of designation and classification under the 8-hour ozone 
standard rounded to the nearest July. All other basic I/M performance 
design elements remain the same as previously promulgated for 1-hour 
ozone non-attainment areas (see 40 CFR 51.352). For areas newly 
required to implement an enhanced I/M program as a result of being 
designated and classified under the 8-hour ozone NAAQS, EPA proposed 
establishing an 8-hour ozone enhanced I/M performance standard which 
assumes the same program design elements as the current low enhanced I/
M performance standard defined at 40 CFR 51.351(g) but with the 
following exceptions: (1) Start date: four years after the effective 
date of designation and classification under the 8-hour ozone standard; 
(2) emission test types: MY 1968-2000--idle, MY 2001 and newer--onboard 
diagnostic (OBD) check; (3) evaluation dates: six years after the 
effective date of designation and classification under the 8-hour ozone 
standard rounded to the nearest July and the applicable attainment date 
(as defined under 40 CFR 51.903), also rounded to the nearest July.
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    \1\ For those 8-hour ozone nonattainment areas required to 
implement I/M for the first time as a result of being designated and 
classified on April 30, 2004 (with an effective date of June 15, 
2004) this translates into a start date of no later than June 15, 
2008.
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    Per the proposal, a state's program would be considered in 
compliance with the relevant 8-hour ozone I/M performance standard if 
it can

[[Page 17707]]

demonstrate through modeling that the proposed program will achieve the 
same (or better) percent reduction in HC (and, for enhanced programs, 
NOX) as achieved by the performance standard model program 
based upon an evaluation date set to the six year anniversary of the 
effective date of the area's designation and classification under the 
8-hour ozone standard, rounded to the nearest July. Areas required to 
implement enhanced I/M as a result of being designated and classified 
under the 8-hour ozone standard also must demonstrate through modeling 
that the same (or better) percent reduction as achieved under the six-
year anniversary milestone above is still being achieved as of the 
first July following the area's applicable attainment date under the 8-
hour ozone standard. The intent of these proposed amendments was to tie 
the performance standard deadlines to the date of an area's designation 
and classification under the 8-hour ozone standard and to provide areas 
newly required to implement I/M under that standard a level of 
flexibility comparable to that currently available to areas required to 
do I/M under the 1-hour ozone standard.
2. Summary of Comments
    Both state commenters supported those elements of the proposal 
aimed at providing I/M areas flexibility to adopt I/M programs that 
rely primarily or wholly upon OBD-only testing of the OBD-equipped in-
use fleet. One I/M contractor objected to the proposed revisions to the 
I/M rule's performance standard requirements. In their comments, the 
contractor claimed that EPA's proposed revisions would essentially 
eliminate the difference between basic and enhanced I/M. According to 
this commenter, as a result of EPA's proposal, the primary difference 
between the basic and enhanced performance standards would be that the 
basic performance standard would actually be more rigorous with regard 
to compliance and waiver rates--a difference which seemingly 
contradicts the clear meaning of the words ``basic'' and ``enhanced,'' 
and runs contrary to Congressional intent. According to this commenter, 
the enhanced performance standard (as proposed) would include only two 
enhancements relative to the basic performance standard: (1) The 
inclusion of on-road testing, as required by the CAA, and (2) the 
inclusion of visual inspections that are largely redundant for OBD-
equipped vehicles. According to this commenter, the CAA requires all I/
M programs (and, by implication, all I/M performance standards) to 
include OBD testing of OBD-equipped vehicles from MY 1996 and newer. 
Therefore, EPA's proposal to limit OBD testing coverage in the basic 
and enhanced performance standards to MY 2001 and newer vehicles is in 
direct contradiction of the clear language of the Act. The commenter 
concluded that EPA's proposed changes would artificially and 
unreasonably lower existing I/M performance standards.
3. Response to Comments
    EPA does not agree with the characterization that it's proposal 
essentially eliminates the difference between basic and enhanced I/M. 
Omitted from the differences cited in the comments provided is perhaps 
the most significant statutory difference between basic and enhanced I/
M: The fact that enhanced I/M programs are required to include the 
testing of light-duty trucks while basic I/M programs are not. This is 
an important difference, especially in light of the significant growth 
in the light-duty truck and Sport Utility Vehicle (SUV) markets since 
passage of the Clean Air Act Amendments of 1990. It is because of this 
difference that the proposed enhanced I/M performance standard for 8-
hour ozone non-attainment areas is and will continue to be 
significantly more stringent than the proposed basic I/M performance 
standard, even as the inclusion of OBD testing narrows the previous gap 
between I/M tailpipe test types.
    EPA also does not agree with the claim that the CAA requires all I/
M programs (and, by implication, all I/M performance standards) to 
include OBD testing of MY 1996 and newer, OBD-equipped vehicles. While 
the CAA does require all I/M programs to include OBD testing and the 
repair of vehicles that fail the OBD test, it does not specify model 
year coverage, nor does it suggest that I/M programs test all such 
vehicles without exception. Further, the statute does not explicitly 
require the inclusion of OBD testing as part of the performance 
standards. In fact, to require such comprehensive testing coverage in 
the performance standards would effectively bar states from exempting 
the newest such vehicles from testing, even though the statistical 
likelihood that such vehicles will fail the test and require repair is 
exceedingly small. Such a requirement would also all but eliminate the 
states' ability to otherwise tailor I/M programs to meet local needs. 
Lastly, suggesting that the CAA requires EPA to adopt the most rigorous 
performance standards possible ignores the Act's mandate that states be 
allowed flexibility in designing their I/M programs and also 
contradicts a DC Circuit Court's ruling in which the court found ``* * 
* it clear that the statute does not mandate that the EPA set the most 
stringent possible annual performance standard. With its repeated 
emphasis on state flexibility, echoed in the legislative history, see 
S. Rep. No. 101-228, 101st Cong., 2d Sess. 39, reprinted in 1990 
U.S.C.C.A.N. 3425, the statute appears to place a premium on state 
ability to shuffle aspects of the program to meet the EPA's 
requirements and individual state needs * * *. Implicitly, at least, 
Congress thus appears to have contemplated considerable EPA discretion 
in standard-setting'' (Natural Resource Defense Council, Inc. v. EPA, 
92-1535--DC Cir. 1994).
    Given EPA's conclusion that the only objections raised with regard 
to this portion of EPA's proposal were inaccurate in both their 
substance and conclusions, today's action finalizes the January 6, 2005 
I/M performance standard revisions as proposed.

B. Amendments to Program Evaluation Requirements

1. Summary of Proposal
    Section 182(c)(3)(C) of the 1990 CAA requires that each state 
subject to enhanced I/M shall ``biennially prepare a report to the 
Administrator which assesses the emission reductions achieved by the 
program required under this paragraph based upon data collected during 
the inspection and repair of vehicles. The methods used to assess the 
emission reductions shall be those established by the Administrator.'' 
Section 51.353 of EPA's current I/M rule (network type and program 
evaluation) provides additional detail on how this requirement is to be 
met, including minimum sampling requirements and specific deadlines by 
which program evaluation testing must begin. Currently, Sec.  
51.353(c)(4) of the I/M rule specifies that the first round of program 
evaluation testing is to begin ``no later than November 30, 1998,'' 
which EPA proposed to change to ``no later than 1 year after program 
start-up.''
2. Summary of Comments
    Although EPA did not receive comment on the specific amendment 
proposed for this section of the I/M rule, one commenter did comment on 
program evaluation in general, requesting that EPA provide ``* * * 
[c]larification of program evaluation and program evaluation sampling 
requirements, particularly as applied to programs utilizing test 
procedures

[[Page 17708]]

specified in applicable performance standards (i.e. IM240 and/or OBD). 
Illinois is currently collecting mass emissions data (full-term IM240) 
on 0.1% of 1981 and newer vehicles, including 1996 and newer vehicles 
subject to OBD. This evaluation testing (particularly on OBD-equipped 
vehicles) has proven to be somewhat controversial and unpopular with 
vehicle owners.''
3. Response to Comments
    Given that the comment in question does not address the proposal 
under consideration, today's action will finalize the amendment as 
proposed. Concerning the request for additional guidance and 
clarification with regard to the program evaluation requirements in 
general--and with regard to OBD-equipped vehicles in particular--EPA 
will take this request into consideration in its development of future 
I/M guidance.

C. Amendments to Update SIP Submission Deadlines

1. Summary of Proposal
    EPA proposed to update Sec.  51.372 (State Implementation Plan 
submissions) to clarify that areas newly required to implement I/M as a 
result of being designated and classified under the 8-hour ozone 
standard are required to submit their I/M SIPs, whether basic or 
enhanced, within 1 year after the effective date of today's action, 
i.e., May 8, 2007. For areas newly designated as non-attainment under 
the 8-hour ozone standard after the effective date of today's action, 
EPA proposed that those areas submit their I/M SIPs within 1 year of 
the effective date of their designation and classification.
2. Summary of Comments
    One state commenter objected to the proposed SIP submission 
deadlines, maintaining that EPA's publication schedule and the State's 
own administrative procedures requirements will make it all but 
impossible to promulgate the necessary regulations before the summer of 
2007.
3. Response to Comments
    Based upon its experience with the submission of I/M SIPs in 
response to the 1990 Act's requirements for 1-hour I/M programs, EPA 
considers the proposed 1 year timeframe a reasonable amount of time in 
which to develop and submit an I/M SIP, given the states' need to 
secure legal authority, develop implementing regulations, provide 
notice-and-comment opportunity, etc. As noted by EPA both in it's 
general preamble published after the 1990 amendments to the Act and in 
the 1992 I/M rules (57 FR 13498, 13517 and 57 FR 52950, 52970, 
respectively) EPA has long believed that one year is an appropriate 
time period for states to obtain necessary legislative authority to 
adopt and submit an I/M program. EPA will therefore finalize this 
section of the January 6, 2005 notice as proposed.

V. Discussion of Major Issues

A. Impact on Existing I/M Programs

    Today's action does not change the requirements that currently 
apply to existing I/M programs adopted as a result of an area being 
classified under the 1-hour ozone standard. Readers interested in 
learning the conditions under which an existing 1-hour I/M program must 
continue operation under the 8-hour standard should consult 40 CFR 
51.905 (``Transition from the 1-hour NAAQS to the 8-hour NAAQS and 
anti-backsliding'').\2\
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    \2\ Additional guidance on anti-backsliding under the 8-hour 
standard and how it applies to certain basic I/M programs can be 
found in the May 12, 2004 memo signed by Tom Helms, Ozone Policy and 
Strategies Group, and Leila Cook, State Measures and Conformity 
Group, entitled ``1-Hour Ozone Maintenance Plans Containing Basic I/
M Programs,'' a copy of which is contained in the docket for this 
rulemaking.
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B. Impact on Future I/M Programs

    Today's action is intended specifically for those areas which 
currently do not perform I/M testing, but will be required to do so as 
a result of being designated and classified under the 8-hour ozone 
standard. Upon becoming effective, these amendments will allow future 
I/M program areas the flexibility necessary to design from the ground 
up reasonable, cost effective, motorist-friendly I/M programs that take 
full advantage of advances in vehicle and vehicle-testing technology, 
as well as fleet turnover.

VI. Economic Costs and Benefits

    Today's action provides areas new to I/M under the 8-hour ozone 
standard the ability to adopt more cost effective and efficient 
programs than would otherwise be the case. This action will therefore 
lessen rather than increase the potential economic burden on states of 
implementing such programs. Furthermore, this rule does not affect 
existing state programs meeting the previously applicable requirements.

VII. Statutory and Executive Order Review

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735; October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines significant ``regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or otherwise adversely affect in a material way the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this final rule is a ``significant regulatory action'' 
within the meaning of the Executive Order. EPA has submitted this 
action to OMB for review. Changes made in response to OMB suggestions 
or recommendations will be documented in the public record.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
because it does not change the pre-existing information collection 
requirements for I/M programs. The Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing regulations (40 CFR part 51, subpart S) under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and has assigned OMB control number 2060-0252, EPA ICR number 1613.02. 
A copy of the OMB approved Information Collection Request (ICR) may be 
obtained from Susan Auby, Collection Strategies Division; U.S. 
Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., 
Washington, DC 20460 or by calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and

[[Page 17709]]

maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
Act or any other statute unless the Agency certifies the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR 121.); (2) a 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not impose any requirements on small entities. This action will 
impact States, not small entities. Furthermore, the action will lessen 
rather than increase the potential economic burden on the States of 
implementing such programs. In addition, States are under no 
obligation, legal or otherwise, to modify existing plans meeting the 
previously applicable requirements as a result of today's action.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this action itself does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. The primary purpose of this action is 
to amend the existing Federal I/M regulations to provide flexibility in 
how the regulations cover areas newly designated non-attainment under 
the 8-hour ozone ambient air quality standards. Clean Air Act sections 
182(b)(4) and 182(c)(3) require the applicability of I/M to such areas. 
Thus, although this action explains how I/M should be conducted, it 
merely implements already established law that imposes I/M requirements 
and does not itself impose requirements that may result in expenditures 
of $100 million or more in any year. The intention of this action is to 
improve the I/M regulation by implementing the rule in a more 
practicable manner and/or to clarify I/M requirements that already 
exist. None of these amendments impose any additional burdens beyond 
that already imposed by applicable federal law; thus, today's action is 
not subject to the requirements of sections 202 and 205 of the UMRA and 
EPA has not prepared a statement with respect to budgetary impacts.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The Clean Air Act requires I/M 
to apply in certain non-attainment areas as a matter of law, and this 
action merely provides areas newly designated as non-attainment under 
the 8-hour ozone standard additional flexibility with regard to meeting 
their existing statutory obligations. Thus, Executive Order 13132 does 
not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175: ``Consultation and Coordination with Indian 
Tribal Governments'' (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.'' The phrase ``policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''

[[Page 17710]]

    Today's amendments to the I/M rule do not significantly or uniquely 
affect the communities of Indian tribal governments. Specifically, 
today's action incorporates into the I/M rule flexible provisions 
addressing newly designated 8-hour ozone non-attainment areas subject 
to I/M requirements under the Act, and these provisions do not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Accordingly, the requirements of Executive Order 13175 are not 
applicable to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    Today's action is not subject to Executive Order 13045 because it 
is not economically significant within the meaning of Executive Order 
12866 and does not involve the consideration of relative environmental 
health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This rule is not subject to Executive Order 13211, ``Action 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it will not 
have a significant adverse effect on the supply, distribution, or use 
of energy. Further, we have determined that this action is not likely 
to have any significant adverse effects on energy supply.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    Today's action does not involve technical standards. Therefore, the 
use of voluntary consensus standards does not apply to this action.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit this final rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the final rule in the Federal Register. This rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2). This rule will be effective on 
May 8, 2006.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 6, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review, nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such a rule or action. This action may not be challenged later in 
proceeding to enforce its requirements. (See section 307(b)(2) of the 
Administrative Procedures Act.)

List of Subjects in 40 CFR Part 51

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

    Dated: March 31, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, part 51 of chapter I, title 40 
of the Code of Federal Regulations is amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.


0
2. Section 51.351 is amended by revising paragraph (c) and adding a new 
paragraph (i) to read as follows:


Sec.  51.351  Enhanced I/M performance standard.

* * * * *
    (c) On-board diagnostics (OBD). For those areas required to 
implement an enhanced I/M program prior to the effective date of 
designation and classifications under the 8-hour ozone standard, the 
performance standard shall include inspection of all model year 1996 
and later light-duty vehicles and light-duty trucks equipped with 
certified on-board diagnostic systems, and repair of malfunctions or 
system deterioration identified by or affecting OBD systems as 
specified in Sec.  51.357, and assuming a start date of 2002 for such 
testing. For areas required to implement enhanced I/M as a result of 
designation and classification under the 8-hour ozone standard, the 
performance standard defined in paragraph (i) of this section shall 
include inspection of all model year 2001 and later light-duty vehicles 
and light-duty trucks equipped with certified on-board diagnostic 
systems, and repair of malfunctions or system deterioration identified 
by or affecting OBD systems as specified in Sec.  51.357, and assuming 
a start date of 4 years after the effective date of designation and 
classification under the 8-hour ozone standard.
* * * * *
    (i) Enhanced performance standard for areas designated and 
classified under the 8-hour ozone standard. Areas required to implement 
an enhanced I/M program as a result of being designated and classified 
under the 8-hour ozone standard, must meet or exceed the HC and 
NOX emission reductions achieved by the model program 
defined as follows:
    (1) Network type. Centralized testing.
    (2) Start date. 4 years after the effective date of designation and 
classification under the 8-hour ozone standard.
    (3) Test frequency. Annual testing.

[[Page 17711]]

    (4) Model year coverage. Testing of 1968 and newer vehicles.
    (5) Vehicle type coverage. Light duty vehicles, and light duty 
trucks, rated up to 8,500 pounds GVWR.
    (6) Emission test type. Idle testing (as described in appendix B of 
this subpart) for 1968-2000 vehicles; onboard diagnostic checks on 2001 
and newer vehicles.
    (7) Emission standards. Those specified in 40 CFR part 85, subpart 
W.
    (8) Emission control device inspections. Visual inspection of the 
positive crankcase ventilation valve on all 1968 through 1971 model 
year vehicles, inclusive, and of the exhaust gas recirculation valve on 
all 1972 and newer model year vehicles.
    (9) Evaporative system function checks. None, with the exception of 
those performed by the OBD system on vehicles so-equipped and only for 
model year 2001 and newer vehicles.
    (10) Stringency. A 20% emission test failure rate among pre-1981 
model year vehicles.
    (11) Waiver rate. A 3% waiver rate, as a percentage of failed 
vehicles.
    (12) Compliance rate. A 96% compliance rate.
    (13) Evaluation date. Enhanced I/M program areas subject to the 
provisions of this paragraph (i) shall be shown to obtain the same or 
lower emission levels for HC and NOX as the model program 
described in this paragraph assuming an evaluation date set 6 years 
after the effective date of designation and classification under the 8-
hour ozone standard (rounded to the nearest July) to within +/-0.02 
gpm. Subject programs shall demonstrate through modeling the ability to 
maintain this percent level of emission reduction (or better) through 
their applicable attainment date for the 8-hour ozone standard, also 
rounded to the nearest July.
0
3. Section 51.352 is amended by revising paragraph (c) and adding a new 
paragraph (e) to read as follows:


Sec.  51.352  Basic I/M performance standard.

* * * * *
    (c) On-board diagnostics (OBD). For those areas required to 
implement a basic I/M program prior to the effective date of 
designation and classification under the 8-hour ozone standard, the 
performance standard shall include inspection of all model year 1996 
and later light-duty vehicles equipped with certified on-board 
diagnostic systems, and repair of malfunctions or system deterioration 
identified by or affecting OBD systems as specified in Sec.  51.357, 
and assuming a start date of 2002 for such testing. For areas required 
to implement basic I/M as a result of designation and classification 
under the 8-hour ozone standard, the performance standard defined in 
paragraph (e) of this section shall include inspection of all model 
year 2001 and later light-duty vehicles equipped with certified on-
board diagnostic systems, and repair of malfunctions or system 
deterioration identified by or affecting OBD systems as specified in 
Sec.  51.357, and assuming a start date of 4 years after the effective 
date of designation and classification under the 8-hour ozone standard.
* * * * *
    (e) Basic performance standard for areas designated non-attainment 
for the 8-hour ozone standard. Areas required to implement a basic I/M 
program as a result of being designated and classified under the 8-hour 
ozone standard, must meet or exceed the emission reductions achieved by 
the model program defined for the applicable ozone precursor(s):
    (1) Network type. Centralized testing.
    (2) Start date. 4 years after the effective date of designation and 
classification under the 8-hour ozone standard.
    (3) Test frequency. Annual testing.
    (4) Model year coverage. Testing of 1968 and newer vehicles.
    (5) Vehicle type coverage. Light duty vehicles.
    (6) Emission test type. Idle testing (as described in appendix B of 
this subpart) for 1968-2000 vehicles; onboard diagnostic checks on 2001 
and newer vehicles.
    (7) Emission standards. Those specified in 40 CFR part 85, subpart 
W.
    (8) Emission control device inspections. None.
    (9) Evaporative system function checks. None, with the exception of 
those performed by the OBD system on vehicles so-equipped and only for 
model year 2001 and newer vehicles.
    (10) Stringency. A 20% emission test failure rate among pre-1981 
model year vehicles.
    (11) Waiver rate. A 0% waiver rate, as a percentage of failed 
vehicles.
    (12) Compliance rate. A 100% compliance rate.
    (13) Evaluation date. Basic I/M program areas subject to the 
provisions of this paragraph (e) shall be shown to obtain the same or 
lower emission levels as the model program described in this paragraph 
by an evaluation date set 6 years after the effective date of 
designation and classification under the 8-hour ozone standard (rounded 
to the nearest July) for the applicable ozone precursor(s).
0
4. Section 51.353 is amended by revising paragraph (c)(4) to read as 
follows:


Sec.  51.353  Network type and program evaluation.

* * * * *
    (c) * * *
    (4) The program evaluation test data shall be submitted to EPA and 
shall be capable of providing accurate information about the overall 
effectiveness of an I/M program, such evaluation to begin no later than 
1 year after program start-up.
* * * * *
0
5. Section 51.360 is amended by revising paragraph (a)(6) to read as 
follows:


Sec.  51.360  Waivers and compliance via diagnostic inspection.

* * * * *
    (a) * * *
    (6) In basic programs, a minimum of $75 for pre-81 vehicles and 
$200 for 1981 and newer vehicles shall be spent in order to qualify for 
a waiver. These model year cutoffs and the associated dollar limits 
shall be in full effect by January 1, 1998, or coincident with program 
start-up, whichever is later. Prior to January 1, 1998, States may 
adopt any minimum expenditure commensurate with the waiver rate 
committed to for the purposes of modeling compliance with the basic I/M 
performance standard.
* * * * *
0
6. Section 51.372 is amended by removing and reserving paragraphs 
(b)(1) and (b)(3) and by revising paragraph (b)(2) to read as follows:


Sec.  51.372  State implementation plan submissions.

* * * * *
    (b) * * *
    (1) [Reserved]
    (2) A SIP revision required as a result of designation for a 
National Ambient Air Quality Standard in place prior to implementation 
of the 8-hour ozone standard and including all necessary legal 
authority and the items specified in paragraphs (a)(1) through (a)(8) 
of this section, shall be submitted no later than November 15, 1993. 
For non-attainment areas designated and classified under the 8-hour 
ozone standard, a SIP revision including all necessary legal authority 
and the items specified in paragraphs (a)(1) through (a)(8) of this 
section, shall be submitted by May 8, 2007 or 1 year after the 
effective date of designation and classification under the 8-hour ozone 
National Ambient Air Quality Standard, whichever is later.
    (3) [Reserved]
* * * * *
0
7. Section 51.373 is amended by revising paragraphs (b) and (d), by 
removing and reserving paragraph (e),

[[Page 17712]]

and by adding a new paragraph (h) to read as follows:


Sec.  51.373  Implementation deadlines.

* * * * *
    (b) For areas newly required to implement basic I/M as a result of 
designation under the 8-hour ozone standard, the required program shall 
be fully implemented no later than 4 years after the effective date of 
designation and classification under the 8-hour ozone standard.
* * * * *
    (d) For areas newly required to implement enhanced I/M as a result 
of designation under the 8-hour ozone standard, the required program 
shall be fully implemented no later than 4 years after the effective 
date of designation and classification under the 8-hour ozone standard.
    (e) [Reserved]
* * * * *
    (h) For areas newly required to implement either a basic or 
enhanced I/M program as a result of being designated and classified 
under the 8-hour ozone standard, such programs shall begin OBD testing 
on subject OBD-equipped vehicles coincident with program start-up.
* * * * *
[FR Doc. 06-3317 Filed 4-6-06; 8:45 am]

BILLING CODE 6560-01-P
