[Federal Register: October 12, 2006 (Volume 71, Number 197)]
[Proposed Rules]
[Page 60098-60102]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc06-22]
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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: Werner.Raymond@epa.gov.
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 http://www.regulations.gov
or e-mail. The http://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
http://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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