E6-16931. Approval and Promulgation of Implementation Plans; New York; Motor Vehicle Enhanced Inspection and Maintenance Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The EPA is proposing to approve a revision to the State Implementation Plan (SIP) for New York's motor vehicle enhanced inspection and maintenance (I/M) program which includes the adoption of a statewide On-Board Diagnostic (OBD) program. New York has made revisions to Title 6 of the New York Codes, Rules and Regulations (NYCRR), Part 217, “Motor Vehicle Enhanced Inspection and Maintenance Program Requirements,” and Title 15 NYCRR Part 79, “Motor Vehicle Inspection Regulations,” to comply with EPA regulations and to improve performance of its I/M program. The intended effect of this action is to maintain consistency between the State-adopted rules and the federally approved SIP and to approve a control strategy that will result in emission reductions that will help achieve attainment of the national ambient air quality standard for ozone.

DATES:

Comments must be received on or before November 13, 2006. Public comments on this action are requested and will be considered before taking final action.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R02-OAR-2006-0685, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
• Hand Delivery: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays

Instructions: Direct your comments to Docket ID No. EPA-02-OAR-2006-0685. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

FOR FURTHER INFORMATION CONTACT:

Kirk J. Wieber, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. What Are the Clean Air Act Requirements for I/M Programs?

B. What Did New York Include in This Latest Submittal?

C. What Action Is EPA Taking Today?

D. What Are the OBD Requirements and How Does New York's I/M Program Address Them?

E. What Are the Performance Standard Requirements and Does New York's I/M Program Satisfy Them?

II. Summary of Conclusions and Proposed Action

III. Statutory and Executive Order Reviews

I. Background

A. What Are the Clean Air Act Requirements for I/M Programs?

The Clean Air Act (CAA) requires certain states to implement an enhanced inspection and maintenance (I/M) program to detect gasoline-fueled motor vehicles which exhibit excessive emissions of certain air pollutants. The enhanced I/M program is intended to help states meet federal health-based national ambient air quality standards (NAAQS) for ozone and carbon monoxide by requiring vehicles with excess emissions to have their emissions control systems repaired. Section 182 of the CAA requires I/M programs in those areas of the nation that are most impacted by carbon monoxide and ozone pollution. Section 184 of the CAA also created an “Ozone Transport Region” (OTR) which geographically includes the 11 states from Maryland to Maine (including all of New York State) and the District of Columbia Consolidated Metropolitan Statistical Area. Depending on the severity of the nonattainment designation(s) and/or geographic location within the OTR, EPA's regulation under 40 CFR 51.350 outlines the appropriate motor vehicle I/M requirements.

As a result of the 1-hr ozone nonattainment designations, New York State's 62 counties were divided into two separate I/M areas. The “downstate” 9-county New York Metropolitan Area (NYMA), which includes New York City (Bronx, Kings, New York, Richmond, and Queens Counties), Long Island (Nassau and Suffolk Counties), and Westchester and Rockland Counties, has been classified as a high enhanced I/M area. On January 1, 1998, New York began implementing a high enhanced I/M program (New York refers to this program as its NYTEST program) in the NYMA. By May 1999, this enhanced I/M program was fully functional for the entire NYMA.

The remaining 53 “Upstate” counties of New York State were classified as a low enhanced I/M area. Since 1998, the Upstate I/M area featured annual anti-tampering visual inspections including a gas cap presence check.

Since all of New York State is included within the OTR, additional I/M requirements are mandated in the more populated counties of Upstate New York pursuant to 40 CFR 51.350(a). Section 51.350(a)(1) provides that, “States or areas within an ozone transport region shall implement enhanced I/M programs in any metropolitan statistical area (MSA), or portion of an MSA, within the state or area with a 1990 population of 100,000 or more as defined by the Office of Management and Budget (OMB) regardless of the area's attainment classification.” Further, § 51.350(b)(1) provides that, “[i]n an ozone transport region, the program shall entirely cover all counties within subject MSAs or subject portions of MSAs, as defined by OMB in 1990, except largely rural counties having a population density of less than 200 persons per square mile based on the 1990 Census can be excluded except that at least 50 percent of the MSA population must be included in the program * * *.” In effect, 16 of the 53 counties located in Upstate New York are required to have low enhanced I/M. The 16 counties are Albany, Broome, Chautauqua, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, Putnam, Rensselaer, Schenectady, Saratoga, Warren and Washington.

On April 5, 2001, EPA published in the Federal Register “Amendments to Vehicle Inspection and Maintenance Program Requirements Incorporating the On-Board Diagnostics Check” (66 FR 18156). The revised I/M rule requires that electronic checks of the On-Board Diagnostics (OBD) system on model year 1996 and newer OBD-equipped motor vehicles be conducted as part of states' motor vehicle I/M programs. OBD is part of the sophisticated vehicle powertrain management system and is designed to detect engine and transmission problems that might cause vehicle emissions to exceed allowable limits. OBD is the subject of this proposed rulemaking action.

The OBD system monitors the status of up to 11 emission control related subsystems by performing either continuous or periodic functional tests of specific components and vehicle conditions. The first three testing categories—misfire, fuel trim, and comprehensive components—are continuous, while the remaining eight only run after a certain set of conditions has been met. The algorithms for running these eight periodic monitors are unique to each manufacturer and involve such things as ambient temperature as well as driving conditions. Most vehicles will have at least five of the eight remaining monitors (catalyst, evaporative system, oxygen sensor, heated oxygen sensor, and exhaust gas recirculation or EGR system) while the remaining three (air conditioning, secondary air, and heated catalyst) are not necessarily applicable to all vehicles. When a vehicle is scanned at an OBD-I/M test site, these monitors can appear as either “ready” (meaning the monitor in question has been evaluated), “not ready” (meaning the monitor has not yet been evaluated), or “not applicable” (meaning the vehicle is not equipped with the component monitor in question).

The OBD system is also designed to fully evaluate the vehicle emissions control system. If the OBD system detects a problem that may cause vehicle emissions to exceed 1.5 times the Federal Test Procedure (FTP) standards, then the Malfunction Indicator Light (MIL) is illuminated. By turning on the MIL, the OBD system notifies the vehicle operator that an emission-related fault has been detected, and the vehicle should be repaired as soon as possible thus reducing the harmful emissions contributed by that vehicle.

EPA's revised OBD I/M rule applies to only those areas that are required to implement I/M programs under the CAA, which include the NYMA and certain counties in Upstate New York. This rule established a deadline of January 1, 2002 for states to begin performing OBD checks on 1996 and newer model OBD-equipped vehicles and to require repairs to be performed on those vehicles with malfunctions identified by the OBD check.

EPA's revised I/M rule also provided several options to states to delay implementation of OBD testing, under certain circumstances. An extension of the deadline for states to begin conducting mandatory OBD checks is permissible provided the state making the request can show just cause to EPA for a delay and that the revised implementation date represents “the best the state can reasonably do” (66 FR 18159). EPA's final rule identifies factors that may serve as a possible justification for states considering making a request to the EPA to delay implementation of OBD I/M program checks beyond the January 2002 deadline. Potential factors justifying such a delay include contractual impediments, hardware or software deficiencies, data management software deficiencies, the need for additional training for the testing and repair industries, and the need for public education or outreach.

On May 7, 2001 (66 FR 22922), EPA fully approved New York's enhanced I/M program as it applies to NYMA and included the State's performance standard modeling as meeting the applicable requirements of the CAA. However, the OBD component of that program was not being implemented at that time and therefore was not approved by EPA as satisfying a fully operational OBD program. Additional information on EPA's final approval of New York's enhanced I/M program can be found in EPA's May 7, 2001 final approval notice.

B. What Did New York Include in This Latest Submittal?

On April 4, 2002, the New York State Department of Environmental Conservation (NYSDEC) requested a formal extension of the OBD I/M test deadline, per EPA's I/M requirement rule. New York's request lists contractual impediments, hardware and software deficiencies and data management deficiencies as the factors for its request for an extension of the OBD testing deadline. Based upon the reasons listed by New York, EPA believed that the State's delayed implementation was justified.

On February 27, 2006, NYSDEC submitted to EPA a revision to its SIP which incorporates OBD system requirements in the NYMA and the 53 counties located in Upstate New York. New York's SIP revision includes revisions to the NYSDEC regulation found at Title 6 of the New York Codes, Rules and Regulations (NYCRR), Part 217, “Motor Vehicle Enhanced Inspection and Maintenance Program Requirements,” and the New York State Department of Motor Vehicles (NYSDMV) regulation found at Title 15 NYCRR Part 79, “Motor Vehicle Inspection Regulations,” and a performance standard modeling demonstration.

C. What Action Is EPA Taking Today?

The EPA is proposing to approve a revision to the New York SIP pertaining to New York's enhanced I/M program which incorporates OBD testing requirements and procedures in the NYMA and the 53 counties located in Upstate New York (New York refers to this program as the New York Vehicle Inspection Program (NYVIP)).

D. What Are the OBD Requirements and How Does New York's I/M Program Address Them? .

The OBD program requires scan tool equipment to read the vehicle's built-in computer sensors in model year 1996 and newer vehicles. The OBD-I/M check consists of two types of examination: a visual check of the dashboard display function and status and an electronic examination of the OBD computer itself. The failure criteria for OBD testing is any Diagnostic Trouble Code (DTC) or combination of DTCs that results in the Malfunction Indicator Light (MIL) to be commanded on. A DTC is a code that indicates an emission control system or component which may cause emissions to increase to 1.5 times the limit due to malfunction. New York has incorporated this OBD component into its NYVIP program.

If the OBD scan reveals DTCs that have not commanded the MIL on, the motorist should be advised of the issue, but the vehicle should not be failed unless other non-DTC-based failure criteria have been met. Vehicles may fail inspection if the vehicle connector is missing, tampered with or otherwise inoperable, if the MIL is commanded on and is not visually illuminated, and if the MIL is commanded on for 1 or more DTCs as defined in Society of Automotive Engineering (SAE) J2012 guidance document.

Vehicles are rejected from testing if the scan of the OBD system reveals a “not ready” code for any OBD component. EPA guidance allows states the flexibility to permit model year 1996 to 2000 vehicles with 2 or fewer unset readiness codes, and model year 2001 and newer with 1 unset readiness code to complete OBD-I/M inspection without being rejected. Vehicles would still fail if the MIL was commanded on or if other failure criteria were met, or be rejected if 3 or more unset readiness codes were encountered. If the MIL is not commanded to be illuminated the vehicle would pass the OBD inspection even if DTCs are present. New York's NYVIP program is consistent with the EPA recommended readiness failure criteria.

There are several reasons why a vehicle may arrive at a testing facility without the required readiness codes set. These reasons include the following: (1) Failure to operate the vehicle under the conditions necessary to evaluate the monitors in question; (2) a recent resetting of the OBD system due to battery disconnection or replacement, or routine maintenance immediately prior to testing; (3) a unique, vehicle-specific OBD system failure; (4) an as-of-yet undefined system design anomaly; or (5) a fraudulent attempt to avoid I/M program requirements by clearing OBD codes just prior to OBD-I/M testing. New York's NYVIP program provides for a 10-day time extension under limited conditions. This time extension is necessary to allow motorists (or technicians) the ability to drive a vehicle following an OBD readiness criteria failure and to comply with DMV regulations. Without the time extension provision, a motorist with an expired sticker would not be able to legally drive the vehicle in an effort to re-set monitors. For these reasons, NYVIP will authorize a 10-day time extension (once per inspection cycle) under the following conditions: (1) The vehicle's inspection sticker has expired and was removed by the inspector per state regulation; (2) the vehicle fails only the OBD inspection and for only the readiness criteria; and (3) the vehicle passes all other inspection requirements (safety, emission control device checks, gas cap check). Once the cause for rejection has been corrected, the vehicle must return for reinspection.

The EPA believes that for an OBD-I/M test program to be most effective, it should be designed to allow for: (1) Real-time data link connections to a centralized testing database; (2) quality-controlled input of vehicle and owner identification information; and (3) automated generation of test reports. New York has incorporated these OBD program elements into its NYVIP program.

New York outlines the procedure for its OBD inspection program in Title 6 NYCRR Subpart 217-1 of the NYSDEC regulations and in conjunction with Title 15 NYCRR 79.24 of the NYSDMV regulations. The State requires certain procedures to implement its OBD program that are in accordance with the procedures set forth by EPA. For this reason, and as detailed above, EPA is proposing that New York's NYVIP program meets federal requirements and is approvable.

New York has gone through the phase-in period of Beta testing, and all the systems have been updated with the appropriate software and hardware. Certified inspectors at licensed inspection facilities must pass an on-line exam before they are allowed to complete OBD inspections. New York has also taken steps to limit potential inspection fraud, human error, tampering and/or abuse of equipment. A motor vehicle emission inspector license may be suspended or revoked if any fraudulent vehicle emission inspection is conducted.

E. What Are the Performance Standard Requirements and Does New York's I/M Program Satisfy Them?

Revisions to EPA's I/M regulations (40 CFR part 51) were published in the Federal Register on September 18, 1995 (60 FR 48029) and July 25, 1996 (61 FR 39032). These changes to EPA's Part 51 outlined two new enhanced performance standards: The Alternate Low Enhanced Performance Standard, under § 51.351(g), and the OTR Low-Enhanced Performance Standard, under § 51.351(h).

The pertinent modeling requirement is noted under § 51.351(h), where an I/M jurisdiction may select the OTR low-enhanced I/M performance standard in lieu of either the more stringent high enhanced or alternate low enhanced performance standards as long as the difference in emission reductions between the alternate low enhanced standard and OTR low-enhanced standard are achieved through other measures. As stated previously, 16 of the 53 counties located in Upstate New York are required to have low enhanced I/M. Because New York implements its NYVIP program in all 53 counties located in Upstate New York, the 37 counties that were not required to implement any form of enhanced I/M are used as an offsetting measure.

Included in New York's February 27, 2006 submittal is the appropriate MOBILE 6 Vehicle Emission Modeling Software modeling demonstration considering the required performance standards and the actual NYVIP program as it applies to the 53 counties located in Upstate New York. The modeling runs considered summer and winter evaluations with a 2009 compliance date. To complete the modeling demonstration, three Mobile 6 modeling runs were performed by New York. The first run reflects the pre-existing Upstate I/M program prior to the roll-out of the OBD program in the Upstate areas. This program included expanded anti-tampering visual checks and a gas cap presence check that began in 1998. This modeling run establishes the Upstate I/M baselines from which the reductions of the other two runs were calculated. The second run is EPA's Alternate Low Enhanced I/M Performance Standard, § 51.351(g), modeled in the required 16 Upstate counties. The difference between this run and the first run represents the required reductions. The third run is the actual OBD program (NYVIP) as it applies in all 53 Upstate counties. The difference between this run and the baseline represents the estimated Upstate OBD program reductions. New York has demonstrated that the actual reductions from its OBD based I/M program being implemented in the 53 counties located in Upstate New York (NYVIP) achieves greater emission reduction credits than that of an alternate low enhanced I/M program required in the 16 counties of Upstate New York. EPA is therefore proposing to approve New York's performance standard modeling demonstration for its 53 county Upstate I/M program (NYVIP).

As noted previously, on May 7, 2001 (66 FR 22922), EPA fully approved New York's enhanced I/M program, which included the State's performance standard modeling as it applies to NYMA, as meeting the applicable requirements of the CAA.

II. Summary of Conclusions and Proposed Action

EPA's review of the materials submitted indicates that New York has revised its I/M program in accordance with the requirements of the CAA, 40 CFR part 51 and all of EPA's technical requirements for an approvable OBD program. EPA is proposing to approve the revisions to the NYSDEC regulation Title 6 of the New York Codes, Rules and Regulations (NYCRR), Part 217, “Motor Vehicle Enhanced Inspection and Maintenance Program Requirements,” effective on October 30, 2002, and the New York State Department of Motor Vehicles (NYSDMV) regulation Title 15 NYCRR Part 79 “Motor Vehicle Inspection Regulations,” effective on May 4, 2005, which incorporate the State's OBD motor vehicle inspection program requirements. The CAA gives states the discretion in program planning to implement programs of the state's choosing as long as necessary emission reductions are met. EPA is also proposing to approve New York's performance standard modeling demonstration, which reflects the State's I/M program as it is currently implemented in the 53 counties located in Upstate New York (NYVIP), as meeting the required EPA alternate low enhanced I/M performance standards.

III. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: September 28, 2006.

Alan J. Steinberg,

Regional Administrator, Region 2.