[Federal Register Volume 68, Number 240 (Monday, December 15, 2003)]
[Proposed Rules]
[Pages 69637-69640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30887]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ65-269, FRL-7599-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The EPA is proposing to approve a revision to the State 
Implementation Plan (SIP) for New Jersey's enhanced inspection and 
maintenance (I/M) program. New Jersey has made several amendments to 
its I/M rules to comply with EPA regulations and to improve performance 
of the program and has requested that the SIP be revised to include 
these changes. Chief among the amendments EPA is proposing to approve 
is New Jersey's On-Board Diagnostic (OBD) program. EPA is proposing to 
approve New Jersey's latest I/M rule changes. The intended effect of 
this action is to maintain consistency between the State-adopted rules 
and the federally approved SIP.

DATES: Comments must be received on or before January 14, 2004. Public 
comments on this action are requested and will be considered before 
taking final action.

ADDRESSES: Submit your comments, identified by Docket No. NJ65-269, by 
email to [email protected], online at http://www.regulations.gov, 
which is an alternative method for submitting electronic comments to 
EPA; mailed to Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region II Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866; or by hand delivery or courier to 
the same address.
    Copies of the state submittal(s) are available at the following 
address for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch, 
290 Broadway, 25th Floor, New York, New York 10007-1866, and
New Jersey Department of Environmental Protection, Bureau of Air 
Quality Planning, 401 East State Street, CN027, Trenton, New Jersey 
08625.

FOR FURTHER INFORMATION CONTACT: Reema Persaud, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4249, [email protected].

SUPPLEMENTARY INFORMATION: If you submit an electronic comment, EPA 
recommends that you include your name, mailing address, and an e-mail 
address or other contact information in the body of your comment and 
with any disk or CD-ROM you submit. This ensures that you can be 
identified as the submitter of the comment and allows EPA to contact 
you in case EPA cannot read your comment due to technical difficulties 
or needs further information on the substance of your comment. Any 
identifying or contact information

[[Page 69638]]

provided in the body of a comment will be included as part of the 
comment that is made available to the public. 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.
    If you send an electronic mail (e-mail) comment to the EPA e-mail 
address for this rulemaking, [email protected], your e-mail 
address is automatically captured and included as part of the comment 
that is made available to the public. Regulations.gov is an alternative 
method of submitting electronic comments to EPA. In contrast to EPA's 
e-mail system, Regulations.gov is an ``anonymous access'' system, which 
mean EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.

Table of Contents

1. Background
2. What Action Is EPA Taking Today?
    A. What are the OBD requirements and how does New Jersey's I/M 
program address them?
    B. What are the additional I/M changes being incorporated?
3. Summary of Conclusions and Proposed Action
4. Statutory and Executive Order Reviews

1. Background

    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. New Jersey is 
required to have an enhanced I/M program pursuant to the CAA, and 
consequently has adopted, and has been implementing an enhanced I/M 
program statewide since December 13, 1999. In the January 22, 2002 
Federal Register (67 FR 2811), EPA fully approved New Jersey's enhanced 
I/M program, including the State's performance standard modeling, as 
meeting the applicable requirements of the CAA. Additional information 
on EPA's final approval of New Jersey's enhanced I/M program can be 
found in EPA's January 22, 2002 final approval notice.
    On April 5, 2001, EPA's revised I/M program requirements rule was 
published in the Federal Register (Amendments to Vehicle Inspection and 
Maintenance Program Requirements Incorporating the On-Board Diagnostics 
Check; Final Rule (66 FR 18156)). The revised I/M rule requires that 
electronic checks of the On-Board Diagnostics (OBD) system of 
applicable 1996-and-newer 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 the vehicle emissions to 
exceed allowable limits. 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.
    This revised OBD I/M rule applies only to those areas required to 
implement an I/M program under the CAA. 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.
    The 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.'' 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 request that are listed in EPA's rule 
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 April 24, 2002, New Jersey submitted a SIP revision to formally 
request an extension of the OBD I/M test deadline, per EPA's I/M 
requirement rule. New Jersey's SIP revision lists many of the same 
factors that are listed in EPA's I/M rule in order to justify the 
State's request for extension of the OBD testing deadline. These 
include the hybrid nature of the inspection network in New Jersey of 
both centralized and decentralized inspection facilities. The hybrid 
network system makes the software upgrades and programmatic changes 
more complicated. It requires the modification of two distinct software 
applications while assuring compatibility with a common vehicle 
inspection database (VID). All upgrades are required to conform with 
State specifications and pass stringent acceptance testing protocols 
before installation in testing facilities. Based on these and other 
reasons listed by New Jersey, EPA believes that the State's delayed 
implementation is justified.

2. What Action Is EPA Taking Today?

    The EPA is proposing approval of several submittals by the State of 
New Jersey pertaining to its enhanced I/M SIP. The content of those SIP 
submittals is described below and summarized in Table 1.

       Table 1.--Summary of Submittals Relevant to Today's Action
------------------------------------------------------------------------
                      Date                               Content
------------------------------------------------------------------------
April 22, 2002.................................  Request to delay
                                                  implementation of OBD
                                                  testing.
February, 10, 2003.............................  (1) Implementation of
                                                  On-board Diagnostic
                                                  Inspections and
                                                  Schedule.
                                                 (2) Continuation of
                                                  ``Initial'' Standards
                                                  for the ASM5015
                                                  Exhaust Emission Test.
                                                 (3) Removal of the
                                                  Requirements for
                                                  ``Final'' Standards
                                                  for the ASM5015
                                                  Exhaust emission test.
                                                 (4) Removal of the
                                                  requirements for the
                                                  evaporative pressure
                                                  and purge tests.
May 28, 2003...................................  (1) Requirements for
                                                  issuance of temporary
                                                  inspection decals.
                                                 (2) Exemption of
                                                  gasoline-fueled school
                                                  buses.
                                                 (3) Allowance of an on-
                                                  road inspection to
                                                  substitute for a
                                                  biennial Inspection.

[[Page 69639]]

 
August 4, 2003.................................  NJMVC \1\ adopted
                                                  regulations for OBD
                                                  inspections.
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\1\ New Jersey Motor Vehicle Commission (NJMVC) formerly New Jersey
  Department of Motor Vehicles.

A. What Are the OBD Requirements and How Does New Jersey's 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 Jersey has incorporated this OBD component into the I/M 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 has 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. The States have 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 shall pass the OBD inspection even if DTCs are present.
    There are several reasons why a vehicle may arrive for testing 
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. Once 
the cause for rejection has been corrected, the vehicle must return for 
reinspection. New Jersey has incorporated these OBD program factors 
into its I/M program.
    The EPA believes that for an OBD-I/M test program to be most 
effective, whether centralized or decentralized, it should be designed 
to allow for: (1) Real-time data link connection to a centralized 
testing database; (2) quality-controlled input of vehicle and owner 
identification information; and (3) automated generation of test 
reports. New Jersey has incorporated these OBD program elements into 
its I/M program.
    New Jersey has structured its On-Board Diagnostic (OBD) program to 
be implemented as outlined by EPA. New Jersey outlined the procedure 
for its OBD inspection program at N.J.A.C. 7:27B-5.7. The State 
requires that the procedures required to implement the OBD program 
should be performed in accordance with the procedures set forth by EPA. 
For this reason, and as detailed above, EPA is proposing that New 
Jersey's OBD program meets federal requirements and is approvable.
    New Jersey has gone through the phase-in period of Beta testing, 
and all the systems have been updated with the appropriate software and 
hardware. The inspectors at both centralized and decentralized 
inspection facilities have been trained and licensed to operate the OBD 
scan tools and recognize the basis for failure or rejection. New Jersey 
has also taken steps to limit potential inspection fraud at centralized 
and decentralized inspection stations. A motor vehicle emission 
inspector license may be suspended or revoked if any fraudulent vehicle 
emission inspection is conducted. Also, no person licensed as an 
emission inspector shall own or be employed by any motor vehicle repair 
facility while employed by a centralized inspection facility. An 
emission inspector may be employed by a private inspection facility 
only if the facility is licensed by the Division in accordance with 
N.J.A.C 13:20-44.

B. What Are the Additional I/M Changes Being Incorporated?

    In addition to the OBD programs, this proposal addresses a number 
of submissions from the New Jersey Department of Environmental 
Protection (NJDEP) concerning revisions to the I/M SIP for New Jersey. 
The State believes following the proposed revisions are necessary to 
enhance New Jersey's I/M program, and these elements of the program are 
approvable by EPA. The content of those submissions is described below.
    The State requested a revision to its SIP to exempt new cars from 
inspection for four years, as opposed to two years, and to include a 
change in the minimum cost expenditure value for the issuance of a 
waiver, from $200 to $450. Subsequent to the first inspection, the 
inspection cycle is biennial (every two years). The EPA approved the 
State's new motor vehicle four-year exemption SIP revision on February 
18, 2003 (68 FR 7704). New Jersey conducted I/M performance standard 
modeling using MOBILE6 to model emissions related to a 4 year exemption 
from inspection of new vehicles. The modeling also included other 
program details reflective of the State's current I/M program, for 
example, the removal of evaporative purge and pressure tests, and 
modifications listed below. The results of the MOBILE6 modeling 
indicated that the emission levels were still below the levels of 
emissions when EPA defaults are assumed.
    The April 2002 submittal requested the exemption from dynamometer 
testing any motor vehicle ``with a chassis height that has been 
modified so as to make its operation on a dynamometer either 
impractical or hazardous, as will be determined by the discretion of 
the Director of the New Jersey Motor Vehicle Commission (NJMVC).''
    On February 10, 2003, a letter was transmitted by New Jersey 
requesting approval of the following revisions. A request was made for 
the end date of ``initial'' emission standards for ASM5015 exhaust 
emission tests to be eliminated in order to allow for continued use of 
these standards, and for the ``final'' emission standards for

[[Page 69640]]

the ASM5015 exhaust emission test to be removed. EPA received a request 
for the removal of all references to the evaporative pressure and purge 
test, while retaining the evaporative fuel cap leak test.
    On May 28, 2003, EPA received a request from New Jersey to allow 
the substitution of an on-road inspection certification for the 
biennial inspection. The on-road inspection must comply with the 
testing that is required for the motor vehicle as part of a regular 
inspection, and must be within the two-month period prior to its 
regularly scheduled biennial inspection.
    This letter also requested the exemption of OBD-eligible gasoline-
fueled and bi-fueled school buses from I/M enhanced inspection 
purposes. All school buses must meet the Department emission standards 
and be inspected biannually using a 2,500 RPM test, not with an ASM5015 
test, (see 34 N.J.R. 829(a) February 19, 2002). The school buses will 
be inspected under the MVC School Bus Inspection Unit regulation in 
accordance with N.J.S.A. 39:3B-18 et seq. The State also requested that 
leasing companies and out-of-state dealerships be allowed to issue 
temporary inspection decals, which would permit the motorist to present 
the vehicle at the exit of any centralized inspection facility and be 
issued a valid inspection decal.
    In addition to restructuring the rule, amendments were made to: 
clarify the meaning of vehicles primarily operated in the area; clarify 
existing definitions and include new definitions; clarify fleet vehicle 
testing requirements, set fee payment methods, station testing 
procedures, emission test standards and waiver requirements; clarify 
the vehicle test report requirement for vehicles that fail the OBD 
test, reinspection, the clean screening test report requirements and 
the fleet vehicle reporting requirements; clarify the issuance of 
inspection certificates of approval or rejection; clarify the test 
methods for the OBD and the visual test methods, and clarify licensing 
of inspection agents and definitions of fraud. All of the factors of 
New Jersey's I/M program detailed above are approvable by the EPA.

3. Summary of Conclusions and Proposed Action

    EPA's review of the materials submitted indicates that New Jersey 
has revised the I/M program in accordance with the requirements of the 
Clean Air Act (CAA), and all of EPA's technical requirements for an 
approvable OBD program. 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 approving the proposed 
actions and revisions in addition to adding the OBD program described 
earlier, because New Jersey has successfully demonstrated through 
performance standard modeling that these modifications would not 
adversely affect emission reductions that the State is counting on from 
the program. The performance standard modeling, which reflects the 
State's enhanced I/M program as it is currently implemented, shows that 
the State's program meets the low enhanced performance standard. EPA's 
authority to approve New Jersey's enhanced I/M program is set forth at 
section 110 and 182 of the CAA.

4. 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 (Public Law 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 Clean Air 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 Clean Air 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, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: November 25, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.
[FR Doc. 03-30887 Filed 12-12-03; 8:45 am]
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