[Federal Register Volume 62, Number 206 (Friday, October 24, 1997)]
[Rules and Regulations]
[Pages 55341-55344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28273]



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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:

<bullet> 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.

<bullet> 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.

<bullet> 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.

<bullet> 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:

<bullet> 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.

<bullet> 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.

<bullet> 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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