[Federal Register Volume 65, Number 191 (Monday, October 2, 2000)]
[Proposed Rules]
[Pages 58698-58702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25228]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY39-208, 
FRL-6879-8]


Approval and Promulgation of Implementation Plans; New York; 
Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by New York. This revision consists of a 
demonstration of the effectiveness of New York's enhanced motor vehicle 
inspection and maintenance (I/M) program decentralized testing network, 
to satisfy the requirements of section 348 of the National Highway 
Systems Designation Act (NHSDA). This revision also consists of the 
corrections to six de minimus deficiencies related to the Clean Air Act 
(CAA) requirements for enhanced I/M. Therefore, EPA is also proposing 
to remove all of the de minimus conditions related to EPA's approval of 
New York's I/M program under the NHSDA. In addition, EPA is proposing 
to approve New York's test method, NYTEST, as being 95 percent as 
effective as IM240 in reducing hydrocarbon emissions, 99 percent as 
effective as IM240 in reducing carbon monoxide emissions and 99 percent 
as effective as IM240 in reducing nitrogen oxide emissions. The effect 
is to propose full approval of New York's enhanced I/M program.

DATES: Comments must be received on or before November 1, 2000. Public 
comments on this action are requested and will be considered before 
taking final action.

ADDRESSES: All comments should be addressed to Raymond Werner, Branch 
Chief, Air Programs Branch, Environmental Protection Agency, 290 
Broadway, 25th Floor, New York, New York 10007-1866.
    Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the following 
locations: Environmental Protection Agency, Region II Office, Air 
Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-
1866 and New York State Department of Environmental Conservation, 50 
Wolf Road, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Judy-Ann Mitchell, Air Programs

[[Page 58699]]

Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 27, 1996, (61 FR 60242) EPA proposed conditional 
interim approval of New York's enhanced I/M program. New York submitted 
revisions to the existing program on March 27, 1996 to satisfy 
applicable requirements of the CAA and the NHSDA. In this submittal, 
the State included a ``good faith estimate'' to support its claim for 
81 percent of the credit for its decentralized, test-and-repair 
network, when compared to a centralized, test-only network. In the 
State's September 4, 1997 15 Percent and Rate of Progress Plans 
submittal, New York claimed additional credit for its test-and-repair 
network as follows:
     88 percent as effective for HC emission reductions
     84 percent as effective for CO emission reductions
     86 percent as effective for NOX emission 
reductions
    New York's ``good faith estimate'' was based upon data collected on 
the State's previous I/M program. However, the State has made many 
program enhancements which support higher emission reduction credit 
claims.
    There remained six de minimus deficiencies related to the CAA 
requirements for enhanced I/M in the State's submittal. In order to 
address these de minimus deficiencies, New York needed to:
    (1) Submit quality control measures in accordance with the 
requirements set forth in 40 CFR 51.359.
    (2) Complete the development of the inspector training and 
certification program.
    (3) Finalize plans for its data collection system.
    (4) Complete the public information program, including the repair 
station report card.
    (5) Commit to perform on-road testing in accordance with the 
requirements set forth in section 51.371 of the federal I/M regulation.
    (6) Complete the development of the quality assurance program.
    The NHSDA directs EPA to grant interim approval for a period of 18 
months to approvable I/M submittals. The de minimus deficiencies did 
not affect the interim approval status of the State's I/M program. On 
October 24, 1997, (64 FR 32411) EPA published a final interim approval 
of New York's enhanced I/M program with an effective date of November 
24, 1997. Therefore, the interim approval lapsed on May 24, 1999. The 
NHSDA directs EPA and the states to review the interim program results 
at the end of the 18-month period and to make a determination as to the 
effectiveness of the decentralized program. The State must also submit 
corrections to the de minimus deficiencies at the end of the interim 
period.
    In addition, on March 6, 1996, the State of New York proposed to 
amend existing regulations 6NYCRR Part 217, ``Motor Vehicle 
Emissions,'' and 15NYCRR part 79, ``Motor Vehicle Inspection 
Regulations.'' EPA required the State to submit final revised and 
adopted regulations by the end of the 18-month interim period.

II. Summary of New York's Submittal

    New York began phasing in the implementation of the enhanced I/M 
program in January 1998. In November 1998 the enhanced I/M testing 
started. By April 1999, approximately 3500 inspection stations were 
brought into the enhanced I/M program. New York submitted its enhanced 
I/M program evaluation report to EPA on May 24, 1999 including data 
collected from November 1998 through to April 1999 from the State's 
decentralized I/M program network. This submittal also contains 
information addressing the de minimus deficiencies identified by EPA in 
the final interim approval rulemaking. Due to issues raised in 
litigation against the State during this time, New York was prevented 
from removing those inspection stations from the I/M program who did 
not have all of the required equipment. Therefore, the data collected 
during this time was predominantly idle test data which was 
insufficient for a complete analysis of the effectiveness of the 
program. Additional data was required to further evaluate the I/M 
program's effectiveness.
    On October 7, 1999, New York made a supplemental submittal to EPA 
which included enhanced I/M program data from approximately 4,000 
inspection stations. EPA needed clarification of some aspects of this 
data and the State addressed these issues in a letter to EPA dated 
October 29, 1999.

III. EPA Review of the SIP Revision

A. NHSDA Demonstration

    New York chose three elements of the enhanced I/M program to 
evaluate the effectiveness of the decentralized network.
(1) Comparison of Network Design
    Table 3 in New York's October 7, 1999 submittal shows the failure 
rate observed during the Instrumentation/Protocol Assessment (IPA) 
Pilot Study in comparison to test-and-repair enhanced I/M failure 
rates. The IPA Study data can be used as a surrogate for test-only in 
this analysis. The failure rate for the IPA was 8.42 percent. The 
failure rate for the test-and-repair network was 6.44 percent. The 
test-and-repair failure rate indicates that the State's test-and-repair 
network may not be failing as many vehicles as that in a test-only 
network but the failure rate is comparable and consistent with the 
amount of credit that was claimed by New York. The State has 
substantially demonstrated their claim.
(2) Comparison of Pre- and Post-Repair Data
    Table 2 in New York's October 7, 1999 submittal shows the enhanced 
I/M test data recorded from a percentage of the fleet before and after 
repair. The data does show that emission reductions were obtained as a 
result of the repairs. The data obtained from the IPA Study could not 
be used here because no repair data was collected.
(3) Site Audits
    The State's enforcement program covers four areas; desk and 
computer audits, overt audits, covert/surveillance audits, and 
investigation of complaints. New York evaluated the data from the 
enforcement program during the period beginning January 1, 1999 through 
September 1, 1999.
    There were 358 desk audits and 2,176 computer audits performed. 
This process involves auditors performing computer searches for 
enhanced I/M testing abnormalities. Of the desk and computer audits 
performed, 2,176 resulted in administrative stops where stations were 
stopped from doing inspections until further evaluation was performed 
or the problem was corrected.
    There were 1,697 overt audits performed. This process involves the 
auditors visiting inspection stations and reviewing their inspection 
data and history. Of the overt audits performed, 198 received notices 
of violations and five resulted in hearings.
    There were 135 covert audits performed. As a result of the covert 
audits, 40 notices of violation were issued and 55 hearings resulted.
    As a result of complaints about certain inspection facilities 
received from motorists and New York State employees, the State chose 
to perform surveillance of those inspection stations. There were 202 
complaints made which resulted in 58 notices of violation and 25 
hearings.

[[Page 58700]]

    As of September 1, 1999, there were still a number of hearings 
pending. Of those completed, four inspection stations had their 
licenses suspended and two had their licenses revoked. These factors 
taken together show that New York is aggressively overseeing the 
enhanced I/M program. This enforcement system will continue to identify 
and address I/M program issues.

B. Comparison of the NYTEST to Other Test Types

    In 1996, the State approached EPA with a proposal to use a new 
technical method to measure transient, mass-based tailpipe emissions 
using less expensive analytical equipment than a traditional IM240 test 
required. The State's desire to do this was based on their analysis of 
steady-state, concentration-based Acceleration Simulation Mode (ASM) 
emissions test correlation data that indicated the ASM test was not 
adequate to meet New York's air quality objectives. However, the cost 
of IM240 equipment was prohibitive since the New York program was a 
decentralized network design. Therefore, the State began work to 
develop a low cost, mass-based emission measurement system that used 
the IM240 speed vs. time profile as its drive trace. The test was named 
the New York Transient Emissions Short Test (NYTEST). The performance 
goal New York sought to achieve with NYTEST was above a 90 percent 
excess emission identification rate while maintaining false failures 
below 4 percent.
    The preliminary proof-of-concept data provided by the state to EPA 
consisted of 34 emissions tests on 14 vehicles.\1\ Simultaneous 
emissions were measured using a Vehicle Mass Analysis System (VMAS) 
prototype unit and an IM240 analytical bench. Analysis of hydrocarbons 
(HC) and carbon monoxide (CO) from these tests yielded regression 
coefficients of 0.94 and 0.98 respectively. Both the State and EPA 
viewed these results as very encouraging and additional studies were 
planned on larger data sets to confirm these results and gain 
information on the nitrogen oxide (NO) correlation.
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    \1\ Evaluation of NYTEST-Sensors HC & CO Composite GPM Data vs 
IM240 Compliant Composite HC & CO GPM Data; July 9, 1997.
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    A 99-vehicle study was undertaken by New York that provided further 
support of the VMAS technology with respect to NYTEST program 
objectives.\2\ The VMAS unit used was still a prototype unit. 
Regression coefficients for HC, CO and NO were 0.95, 0.99, and 0.99 
respectively.
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    \2\ Evaluation of Real-Time and Composite Mass Emissions Data 
from a VMAS Concept Unit: Comparison to IM240 Data and VMAS 
Feasibility in the NY Enhanced IM Program; Whitby & Mo; NY DEC; 
September 11, 1998.
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    At the 9th Annual Coordinating Research Council On-Road Vehicle 
Emission Workshop, New York presented preliminary data from their IPA 
Study. Correlation data on 299 vehicles that were part of the IPA Study 
indicated very good correlation between NYTEST and the IM240. This data 
was collected by parallel sampling of vehicle exhaust using both the 
VMAS analytical system and an IM240. Correlation coefficients were 0.90 
for HC, 0.98 for CO, and 0.97 for NO. The VMAS units used in this study 
were not prototype instruments but actual field units from each of the 
three vendors supplying emissions inspection equipment to New York.
    Originally, the IPA Study was to involve over 15,000 tests on 5100 
vehicles using actual production model VMAS units; however, a number of 
QA/QC issues arose during the data collection process that have reduced 
this number. As a result, the IPA Study provides 2,312 simultaneous 
NYTEST/IM240 emission tests. This data provides further evidence 
supporting NYTEST as a suitable alternative to the IM240.
    On June 7, 2000, New York State proposed an effectiveness for the 
NYTEST of 98 percent of IM240 credit. As result of the IPA study and 
data analysis, EPA determined that the NYTEST will receive emissions 
test credit as follows:
     95 percent of IM240 credit for HC
     99 percent of IM240 credit for CO
     99 percent of IM240 credit for NOX
EPA will continue to evaluate the data on the NYTEST as it becomes 
available.

C. Correction of the De minimus Deficiencies

    New York's May 24, 1999 submittal contains a new appendix 11 to the 
March 1996 SIP submittal that addresses the six de minimus 
deficiencies. The State has completed the development of its quality 
assurance and quality control measures. Plans for the data collection 
system and the public information program have been finalized. New York 
has committed to performing on-road testing as per 40 CFR 51.371. And, 
New York has included inspector training and certification into the 
State's Automotive Technician Training Program.

D. Final Program Regulations

    Prior to the State's May 24, 1999 submittal, New York submitted the 
final revised and adopted regulations for the enhanced I/M program 
consisting of 6NYCRR part 217, subparts 217-1, 217-2, and 217-4, and 
15NYCRR part 79, sections 79.1 through 79.3, 79.6 through 79.9, 79.11 
through 79.15, 79.17, 79.20, 79.21, 79.24, and 79.25. These revisions 
were previously reviewed by EPA as part of the March 27, 1996 
submittal, at which time, the State had not completed their adoption. 
EPA's review at that time, indicated that they would satisfy the 
requirements of the Clean Air Act once these revised regulations were 
finalized. There are no significant changes to the final regulations. 
The revised subparts of 6NYCRR part 217 and sections of 15NYCRR part 79 
became effective on April 22, 1997 and June 4, 1997 respectively.

IV. Proposed Action

    Today's action proposes the following:
    (1) On the basis of the data collected from the operation of the 
State's enhanced I/M program and the fact that the State has 
implemented the program enhancements described in their good faith 
estimate, EPA is proposing to find that New York has substantially 
demonstrated that its decentralized I/M program network is as effective 
as a centralized program network in achieving emission reductions 
according to the following:
     88 percent as effective for HC emission reductions
     84 percent as effective for CO emission reductions
     86 percent as effective for NOX emission 
reductions
    By proposing to approve New York's NHSDA demonstration, EPA has not 
reduced or eliminated the State's obligation to conduct ongoing 
enhanced I/M program evaluations under 40 CFR 51.351.
    (2) EPA is proposing to afford emissions test credit to the NYTEST 
as follows:
     95 percent of IM240 credit for HC
     99 percent of IM240 credit for CO
     99 percent of IM240 credit for NOX
    (3) EPA is proposing to find that New York's SIP revision submittal 
adequately remedies the six de minimus deficiencies previously 
identified.
    (4) EPA is proposing to approve the latest revisions to the 
enhanced I/M program regulations. Specifically, these are found at 
6NYCRR part 217, subparts 217-1, 217-2, and 217-4 and portions of 
15NYCRR part 79 that became effective on April 22, 1997 and June 4, 
1997 respectively.
    (5) EPA is proposing to replace the interim designation to the EPA 
approval of the State's enhanced I/M program and find that the State 
has an approved

[[Page 58701]]

enhanced I/M program satisfying the requirements of the Clean Air Act.

V. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. 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 rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' Today's rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

D. 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 proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed rule 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, 
because it merely approves a state rule implementing a federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This proposed rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements, but simply approve requirements that the State is 
already imposing. Therefore, because this rule does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action proposed does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental

[[Page 58702]]

relations, Ozone, Volatile organic compounds.
    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 1, 2000.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 00-25228 Filed 9-29-00; 8:45 am]
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