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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY22-1-163, FRL-5913-7]

Approval and Promulgation of Implementation Plans; New York;

Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: EPA is granting interim approval of a State Implementation

Plan (SIP) revision submitted by New York. This revision establishes

and requires the implementation of an enhanced inspection and

maintenance (I/M) program in the counties of the Bronx, Kings, Nassau,

New York, Queens, Richmond, Rockland, Suffolk (except Fisher's Island),

and Westchester Counties. The intended effect of this action is to give

interim approval to the State's proposed enhanced I/M program for an

interim period to last 18 months. This action is being taken under

section 110 of the Clean Air Act and section 348 of the National

Highway System Designation Act.

EFFECTIVE DATE: This rule will be effective November 24, 1997.

ADDRESSES: Copies of the State's submittal are available at the

following addresses for 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: Rudolph K. Kapichak, Mobile Source

Team Leader, Air Programs 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 Clean Air Act (CAA) and the National

Highway System Designation Act of 1995 (NHSDA).

The NHSDA directs EPA to grant interim approval for a period of 18

months to approvable I/M submittals. The NHSDA also 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

interim program. Following this demonstration, EPA will adjust any

credit claims made by the state in its good faith estimate to reflect

the emissions reductions actually measured by the state during the

program evaluation period. The NHSDA is clear that the interim approval

shall last for only 18 months and that the program evaluation is due to

EPA at the end of that period. Therefore, EPA believes that Congress

intended for these programs to start-up as soon as possible, which EPA

had believed should have been on or before November 15, 1997, so that

at least six months of operational program data can be collected to

evaluate the interim programs. EPA believes that in setting such a

strict timetable for program evaluations under the NHSDA, Congress

recognized and attempted to mitigate any further delay with the start-

up of these programs.

Since publication of New York's proposed conditional approval, the

State presented new information that led EPA to believe that ``as soon

as practicable'' is not November 15, 1997 for New York. As a result,

EPA recognizes New York's intent to start the program as soon as

possible, but no later than November 15, 1998. In recognizing this

later start date, EPA considered a number of issues related to the

start of this program. Specifically:

Emission Credits

Most I/M programs currently planned are requiring biennial

inspections, however, New York will require annual inspections. As a

result, New York will complete one full cycle of inspections, as will

other states with biennial programs, by November 1999. This will allow

New York to achieve all of the I/M program related emission reduction

credits claimed in the 15 percent plan and the 9 percent rate-of-

progress (ROP) plan. New York submitted these plans on September 4,

1997. EPA will take action on the State's 15 percent and 9 percent ROP

plans at a later date.

Revisions to the Test Procedure and Equipment

Specifications

On December 17, 1996, New York held a kickoff meeting with test

equipment vendors and potential bidders to discuss the State's

requirements regarding time of delivery and adherence to the State's

standard of performance. As a result, the State asked that by April 1,

1997 vendors express their interest in providing such test equipment

prior to the November 15, 1997 program start date required by EPA. None

of the vendors expressed such interest, and in fact considered the

schedule time-constrained and unfeasible. This forced the State to

reevaluate its overall program development plans and ultimately led New

York to abandon its requirement for vendors to adhere to a standard of

performance for the test equipment.

Potential Benefits to Other States

The State has developed a new transient test procedure that

provides mass emission measurement results (similar to IM240) with less

expensive analyzer equipment generally associated with Acceleration

Simulation Mode (ASM) testing. Development of this new test procedure

has taken considerable time and effort on the part of New York. A mass

emissions transient test (METT), like the one developed by New York,

captures overall vehicle emissions during a simulated trip while an ASM

test uses one constant speed and load. As a result, the ``NYTEST''

procedure has the potential for significant cost savings and may

provide other states with another viable transient test procedure.

Network Size

New York anticipates that 2,500 to 3,000 test-and-repair stations

will need to be retrofitted to accommodate testing of the downstate

vehicle fleet, which is approximately five million vehicles. Given that

other states have begun program implementation and are further along in

this process, New York will need to compete for similar equipment from

a very limited number of sources. As a result, the magnitude of this

program will require a longer phase-in period to ensure that sufficient

stations are properly equipped prior to program start up.

If New York fails to start its program according to the schedule

described in this notice, the interim approval granted under the

provisions of the NHSDA, which allows the State to take full credit

[[Page 55342]]

for the I/M program in its 15 percent plan for the interim period, will

convert to a disapproval after a finding letter is sent to the State by

EPA. As a result, New York would be required to include additional

provisions in its SIP to provide the necessary emission credit

reductions. Because the start date is not being imposed pursuant to a

commitment to correct a deficient SIP under section 110(k)(4), the

failure to start the program by this date will not convert the SIP

approval to a disapproval automatically. EPA is imposing the start date

under its general SIP approval authority of section 110(k)(3), which

does not require automatic conversion; therefore, the approval will be

converted to a disapproval only upon EPA's notification of the State by

letter.

The program evaluation to be used by the State during the 18-month

interim period must be acceptable to EPA. The Environmental Council of

States (ECOS) group has developed a program evaluation process which

includes both qualitative and quantitative measures and has been deemed

acceptable by EPA. Due to the September 19, 1997 proposed I/M Rule

revisions (62 FR 49184), the long-term program evaluation requirement

has been proposed to be delayed for one year and will allow for

equivalent test methodology.

As per the NHSDA requirements, this interim rulemaking will expire

on May 24, 1999. A full approval of New York's final I/M SIP revision,

which will include the State's program evaluation and final adopted

State regulations, is still necessary under sections 110, 182, 184 and

187 of the CAA. After EPA reviews the State's submitted program

evaluation and final regulations, final rulemaking on New York's SIP

revision will occur.

Specific requirements of the New York enhanced I/M SIP and the

rationale for EPA's proposed action are explained in the November 27,

1996 notice and will not be restated here.

II. Public Comments/Response to Comments

This section discusses the content of the comments submitted to the

docket during the federal comment period for the notice of proposed

rulemaking, published in the November 27, 1996 Federal Register, and

provides EPA's responses to those comments. Comments were received from

the State of New York and Environmental Advocates. Copies of the

original comment letters, along with EPA's summary and response to

comments, are available at EPA's Region II office at the address listed

in the ADDRESSES section of this document.

Comment: Implementation Date

New York commented that EPA's action establishing November 15,

1997, as the implementation date is inconsistent with the provisions of

the NHSDA. New York believes that states should be given 12 months from

the publication of this document to begin implementing the new program.

Response to Comment

As stated earlier in this notice, the NHSDA is clear that the

interim approval shall last for only 18 months and that the program

evaluation is due to EPA at the end of that period. EPA believes that

Congress intended for these programs to be implemented as soon as

possible, and had determined that this should have been on or before

November 15, 1997 so that six months or more of program data could be

obtained for program evaluation. However, since publication of New

York's proposed conditional approval, the State presented new

information that led EPA to believe that ``as soon as practicable'' is

not November 15, 1997 for New York. As a result, EPA recognizes New

York's intent to start the program as soon as possible, but no later

than November 15, 1998.

Comment: Definition of ``Program Implementation''

New York's comment expresses concern that EPA has defined program

implementation to mean that the program is completely implemented in

all areas. New York believes EPA must adjust this definition to ensure

that sufficient test data is collected for the program evaluation and

allow analyzer manufacturers sufficient time to produce and supply the

necessary equipment.

Response to Comment

EPA defines program ``start-up'' as a fully operational program

that has begun regular, mandatory inspections and repairs, using the

final test strategy and covering each of the State's required areas.

This definition allows for the collection of sufficient test data for

program implementation as well as any retooling requirements.

Therefore, no change in this definition is warranted.

Comment: Orange County

Environmental Advocates commented that New York's program does not

meet the applicability requirements of the federal I/M regulation

because the State failed to include southern Orange County as part of

the area to be covered by the enhanced I/M program.

Response to Comment

It is true that New York has not yet submitted to EPA an I/M plan

that addresses southern Orange County. However, after considering a

number of factors unique to the implementation of an I/M program in

southern Orange County, EPA sees no reason to disapprove the current

submission for the rest of the New York metropolitan area. Such action

would delay implementation of the plan submitted thus far which covers

the vast majority of the vehicles in the New York metropolitan area.

These factors are listed below:

County-Wide Implementation

Implementation of an I/M program is more feasible on a county-wide

basis. Southern Orange County is anomalous in the New York-Northern New

Jersey-Long Island Area Air Quality Control Region (AQCR), since its

severe nonattainment designation applies only to a portion of a county.

Therefore, implementation of an I/M program in such an area must

account for a number of impracticalities such as: identification of

subject vehicles by home or business address, and enforcement against

vehicle cross registration outside the program area.

Existing Network

At present, Orange County is not covered by an I/M program.

Southern Orange County was designated as severe nonattainment for ozone

in 1992. Since an I/M program will eventually be required in all of

Orange County, EPA will act on the plan to be submitted by the State

for this county at a later date.

Population Size

Southern Orange County covers only about one third of the County

and represents less than one percent of the total population of New

York's portion of the New York-Northern New Jersey-Long Island AQCR.

When considered as a whole, EPA believes that these factors and

common sense support its decision to approve New York's submittal which

covers the remainder of New York's portion of the AQCR. The Agency will

take action on this issue and complete the necessary applicability

analysis when New York submits its I/M plan for Orange County and the

rest of the upstate region. EPA believes that the rejection of New

York's entire plan now on the basis that a minute portion of the

relevant area is excluded would not advance the goals of this program.

In fact, EPA believes

[[Page 55343]]

that such inflexibility would be counterproductive at this juncture.

As previously stated, this unique circumstance results from the

nature of I/M implementation itself and Orange County's dual

nonattainment designation. Other SIP requirements applicable to

southern Orange County as part of the New York City AQCR are not

susceptible to the same analysis because the Act does not suggest a

similar sensitivity to population density as is appropriate in

administering the I/M program applicable to individual vehicle owners.

III. Supplemental State Submittals

Under the terms of EPA's November 27, 1996 proposed conditional

interim approval notice, the State was required to make commitments

within 30 days to correct three major deficiencies with the I/M program

SIP by dates certain. On December 24, 1996, New York submitted such a

letter to EPA from David Sterman, Deputy Commissioner of the New York

Department of Environmental Conservation. The contents of this letter

and subsequent correspondence are discussed below.

A. Consumer Price Index Adjustment of the $450 Repair Cost Waiver

States are required annually to adjust the $450 repair cost waiver

by the Consumer Price Index (CPI). By January 1, 2000, the adjustment

is to be made retroactive to 1989. Deputy Commissioner Sterman's

December 24, 1996, letter indicated that the State will adjust the

repair cost waiver by the CPI as required by federal law. Additionally,

the letter indicates that the State will make the adjustment back to

1989. Therefore, the State has met this condition.

B. Enhanced I/M Performance Standard Modeling

States are required to submit modeling demonstrating that the

proposed I/M program will achieve the required emission reductions by

the relevant dates and meet the relevant I/M performance standard. On

September 4 and 16, 1997, New York submitted modeling results and

assumptions showing that its program meets EPA's high enhanced

performance standard. New York assumed use of the NYTEST, a test method

based on RG240 for which no final emission reduction credits have been

developed. (See the following discussion about equipment specifications

for further details.) Based on available data at the time of this

notice, EPA has concluded that there is sufficient evidence to support

New York's claim that this test deserves emission reduction credit

about half way between a 2-mode ASM test and an IM240 test. EPA is also

planning to further evaluate this test procedure along with others to

determine the adequate level of credit it deserves, but expects that

the test will meet the level claimed by New York. The modeling results

submitted by the State on September 4, 1997, and subsequent

demonstration submitted on September 16, 1997, show that the proposed

I/M program meets the high enhanced performance standard. As a result,

the State has met this condition.

C. Test Procedures, Standards and Equipment

States are required to submit written test procedures, pass/fail

standards, and equipment specifications. These are to be established

and followed for each model year and vehicle type included in the I/M

program. New York's I/M program will use a mass emissions transient

test (METT), known as NYTEST, which is based on EPA's description of

Repair Grade 240-second METT. The State submitted information to

support its assertion that the proposed program would achieve

reductions estimated to be half way between a 2-mode ASM test, and

EPA's IM240 test. As required in the November 27, 1996 Federal Register

notice, New York submitted I/M program test procedures, standards, and

equipment specifications on January 31, 1997. Due to revisions made

since then, New York submitted the revised test procedures, standards,

and equipment specifications on September 16, 1997. Therefore, this

condition has been met.

IV. De minimus Conditions

EPA is taking final interim approval action upon the New York I/M

SIP, under section 110 of the CAA. As discussed in detail later in this

document approval is being granted on an interim basis for an 18-month

period under the authority of the NHSDA.

The State must correct six minor, or de minimus, deficiencies

related to the CAA requirements for enhanced I/M. Although satisfaction

of these deficiencies does not affect the interim approval status of

the State's rulemaking, these deficiencies must be corrected in the

final I/M SIP revision to be submitted at the end of the 18-month

interim period:

(1) New York must submit quality control measures in accordance

with the requirements set forth in 40 CFR part 51.359.

(2) New York must complete the development of the inspector

training and certification program.

(3) New York must finalize plans for its data collection system.

(4) New York must complete the public information program,

including the repair station report card.

(5) New York must commit to perform on-road testing in accordance

with the requirements set forth in section 51.371 of the federal I/M

regulation.

(6) New York must complete the development of the quality assurance

program.

V. Further Requirements for I/M SIP Approval

This approval is being granted on an interim basis for a period of

18 months, under the authority of section 348 of the NHSDA. At the end

of this period, the approval of the emission reduction credits will

lapse. At that time, EPA must take final rulemaking action upon the

State's SIP under the authority of section 110 of the CAA. Final

approval of New York's I/M program emission reduction credits will be

granted based upon the following criteria:

(1) The State has complied with all the conditions of its

commitment to EPA;

(2) EPA's review of the State's program evaluation confirms that

the appropriate amount of program credit was claimed by the State and

achieved with the interim program;

(3) Final program regulations are submitted to EPA; and

(4) The State's I/M program meets all of the requirements of EPA's

I/M rule, including those de minimus deficiencies identified in the

November 27, 1996 proposal (61 FR 60242) as minor for purposes of

interim approval.

VI. Final Rulemaking Action

EPA is granting interim approval of New York's revised enhanced I/M

program based primarily upon its decentralized program effectiveness

claims. The approval will cover a period of 18 months, allowing the

State to demonstrate ``actual'' effectiveness of its program. It must

be noted that actual effectiveness findings will not affect this

approval, but may affect the emission reduction credits granted.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

[[Page 55344]]

VII. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Approvals of SIP submittals 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 the federal SIP approval does not impose any new

requirements, I certify that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the CAA, preparation of a 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).

If the approval is converted to a disapproval under section 110(k),

based on the State's failure to meet the commitments, it will not

affect any existing state requirements applicable to small entities.

Federal disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose a new Federal requirement. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements nor does it substitute a new federal requirement.

C. 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 promulgated 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.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by December 23, 1997. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements,

Volatile organic compounds.

Dated: October 6, 1997.

Jeanne M. Fox,

Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart HH--New York

2. Section 52.1683 is amended by adding paragraphs (c), (d), and

(e) to read as follows:

* * * * *

(c) The State of New York's March 27, 1996 submittal for an

enhanced motor vehicle inspection and maintenance (I/M) program, as

amended on September 16, 1997, and September 17, 1997, is approved with

an interim period to last 18 months. If New York fails to start its

program by November 15, 1998, the interim approval granted under the

provisions of the NHSDA, which EPA believes allows the State to take

full credit in its 15 percent plan for all of the emission reduction

credits in its proposal, will convert to a disapproval after a finding

letter is sent to the State by EPA.

(d) The State must correct six minor, or de minimus, deficiencies

related to the CAA requirements for enhanced I/M. The minor

deficiencies are listed in EPA's interim final rulemaking on New York's

motor vehicle inspection and maintenance program published on October

24, 1997. Although satisfaction of these deficiencies does not affect

the interim approval status of the State's rulemaking, these

deficiencies must be corrected in the final I/M SIP revision to be

submitted at the end of the 18-month interim period.

(e) EPA is also approving this SIP revision under Section 110(k)

for its strengthening effect on the plan.

[FR Doc. 97-28273 Filed 10-23-97; 8:45 am]

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