[Federal Register Volume 71, Number 197 (Thursday, October 12, 2006)]
[Proposed Rules]
[Pages 60098-60102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16931]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket No. EPA-R02-OAR-2006-0685, FRL-8230-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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: [email protected].
     Fax: 212-637-3901.
     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,

[[Page 60099]]

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, (212) 637-3381.

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, Sec.  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

[[Page 60100]]

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

[[Page 60101]]

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 Sec.  51.351(g), and the OTR Low-Enhanced Performance 
Standard, under Sec.  51.351(h).
    The pertinent modeling requirement is noted under Sec.  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, Sec.  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

[[Page 60102]]

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.
[FR Doc. E6-16931 Filed 10-11-06; 8:45 am]
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