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###### Environmental Protection Agency

          - 40 CFR Part 52 
          - [Region II Docket No. NY39-208, FRL-6879-8] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Proposed rule. 

# SUMMARY:

EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by New York. This revision consists of a demonstration of the effectiveness of New York's enhanced motor vehicle inspection and maintenance (I/M) program decentralized testing network, to satisfy the requirements of section 348 of the National Highway Systems Designation Act (NHSDA). This revision also consists of the corrections to six de minimus deficiencies related to the Clean Air Act (CAA) requirements for enhanced I/M. Therefore, EPA is also proposing to remove all of the de minimus conditions related to EPA's approval of New York's I/M program under the NHSDA. In addition, EPA is proposing to approve New York's test method, NYTEST, as being 95 percent as effective as IM240 in reducing hydrocarbon emissions, 99 percent as effective as IM240 in reducing carbon monoxide emissions and 99 percent as effective as IM240 in reducing nitrogen oxide emissions. The effect is to propose full approval of New York's enhanced I/M program. 

# DATES:

Comments must be received on or before November 1, 2000. Public comments on this action are requested and will be considered before taking final action. 

# ADDRESSES:

All comments should be addressed to Raymond Werner, Branch Chief, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866. 

Copies of the documents relevant to this action are available for public 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:

                        Judy-Ann Mitchell, Air Programs                               ( print page 58699)                            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 CAA and the NHSDA. In this submittal, the State included a “good faith estimate” to support its claim for 81 percent of the credit for its decentralized, test-and-repair network, when compared to a centralized, test-only network. In the State's September 4, 1997 15 Percent and Rate of Progress Plans submittal, New York claimed additional credit for its test-and-repair network as follows: 
    - 88 percent as effective for HC emission reductions
    - 84 percent as effective for CO emission reductions
    - 86 percent as effective for NO X                      emission reductions                 

New York's “good faith estimate” was based upon data collected on the State's previous I/M program. However, the State has made many program enhancements which support higher emission reduction credit claims. 

There remained six de minimus deficiencies related to the CAA requirements for enhanced I/M in the State's submittal. In order to address these de minimus deficiencies, New York needed to: 

(1) Submit quality control measures in accordance with the requirements set forth in 40 CFR 51.359. 

(2) Complete the development of the inspector training and certification program. 

(3) Finalize plans for its data collection system. 

(4) Complete the public information program, including the repair station report card. 

(5) Commit to perform on-road testing in accordance with the requirements set forth in section 51.371 of the federal I/M regulation. 

(6) Complete the development of the quality assurance program. 

The NHSDA directs EPA to grant interim approval for a period of 18 months to approvable I/M submittals. The de minimus deficiencies did not affect the interim approval status of the State's I/M program. On October 24, 1997, (64 FR 32411) EPA published a final interim approval of New York's enhanced I/M program with an effective date of November 24, 1997. Therefore, the interim approval lapsed on May 24, 1999. The NHSDA 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 decentralized program. The State must also submit corrections to the de minimus deficiencies at the end of the interim period. 

In addition, on March 6, 1996, the State of New York proposed to amend existing regulations 6NYCRR Part 217, “Motor Vehicle Emissions,” and 15NYCRR part 79, “Motor Vehicle Inspection Regulations.” EPA required the State to submit final revised and adopted regulations by the end of the 18-month interim period. 

## II. Summary of New York's Submittal 

New York began phasing in the implementation of the enhanced I/M program in January 1998. In November 1998 the enhanced I/M testing started. By April 1999, approximately 3500 inspection stations were brought into the enhanced I/M program. New York submitted its enhanced I/M program evaluation report to EPA on May 24, 1999 including data collected from November 1998 through to April 1999 from the State's decentralized I/M program network. This submittal also contains information addressing the de minimus deficiencies identified by EPA in the final interim approval rulemaking. Due to issues raised in litigation against the State during this time, New York was prevented from removing those inspection stations from the I/M program who did not have all of the required equipment. Therefore, the data collected during this time was predominantly idle test data which was insufficient for a complete analysis of the effectiveness of the program. Additional data was required to further evaluate the I/M program's effectiveness. 

On October 7, 1999, New York made a supplemental submittal to EPA which included enhanced I/M program data from approximately 4,000 inspection stations. EPA needed clarification of some aspects of this data and the State addressed these issues in a letter to EPA dated October 29, 1999. 

## III. EPA Review of the SIP Revision 

### A. NHSDA Demonstration 

New York chose three elements of the enhanced I/M program to evaluate the effectiveness of the decentralized network. 

#### (1) Comparison of Network Design 

Table 3 in New York's October 7, 1999 submittal shows the failure rate observed during the Instrumentation/Protocol Assessment (IPA) Pilot Study in comparison to test-and-repair enhanced I/M failure rates. The IPA Study data can be used as a surrogate for test-only in this analysis. The failure rate for the IPA was 8.42 percent. The failure rate for the test-and-repair network was 6.44 percent. The test-and-repair failure rate indicates that the State's test-and-repair network may not be failing as many vehicles as that in a test-only network but the failure rate is comparable and consistent with the amount of credit that was claimed by New York. The State has substantially demonstrated their claim. 

#### (2) Comparison of Pre- and Post-Repair Data 

Table 2 in New York's October 7, 1999 submittal shows the enhanced I/M test data recorded from a percentage of the fleet before and after repair. The data does show that emission reductions were obtained as a result of the repairs. The data obtained from the IPA Study could not be used here because no repair data was collected. 

#### (3) Site Audits 

The State's enforcement program covers four areas; desk and computer audits, overt audits, covert/surveillance audits, and investigation of complaints. New York evaluated the data from the enforcement program during the period beginning January 1, 1999 through September 1, 1999. 

There were 358 desk audits and 2,176 computer audits performed. This process involves auditors performing computer searches for enhanced I/M testing abnormalities. Of the desk and computer audits performed, 2,176 resulted in administrative stops where stations were stopped from doing inspections until further evaluation was performed or the problem was corrected. 

There were 1,697 overt audits performed. This process involves the auditors visiting inspection stations and reviewing their inspection data and history. Of the overt audits performed, 198 received notices of violations and five resulted in hearings. 

There were 135 covert audits performed. As a result of the covert audits, 40 notices of violation were issued and 55 hearings resulted. 

                    As a result of complaints about certain inspection facilities received from motorists and New York State employees, the State chose to perform surveillance of those inspection stations. There were 202 complaints made which resulted in 58 notices of violation and 25 hearings.                           ( print page 58700)    

As of September 1, 1999, there were still a number of hearings pending. Of those completed, four inspection stations had their licenses suspended and two had their licenses revoked. These factors taken together show that New York is aggressively overseeing the enhanced I/M program. This enforcement system will continue to identify and address I/M program issues. 

### B. Comparison of the NYTEST to Other Test Types 

In 1996, the State approached EPA with a proposal to use a new technical method to measure transient, mass-based tailpipe emissions using less expensive analytical equipment than a traditional IM240 test required. The State's desire to do this was based on their analysis of steady-state, concentration-based Acceleration Simulation Mode (ASM) emissions test correlation data that indicated the ASM test was not adequate to meet New York's air quality objectives. However, the cost of IM240 equipment was prohibitive since the New York program was a decentralized network design. Therefore, the State began work to develop a low cost, mass-based emission measurement system that used the IM240 speed vs. time profile as its drive trace. The test was named the New York Transient Emissions Short Test (NYTEST). The performance goal New York sought to achieve with NYTEST was above a 90 percent excess emission identification rate while maintaining false failures below 4 percent. 

                    The preliminary proof-of-concept data provided by the state to EPA consisted of 34 emissions tests on 14 vehicles.[1]                                          Simultaneous emissions were measured using a Vehicle Mass Analysis System (VMAS) prototype unit and an IM240 analytical bench. Analysis of hydrocarbons (HC) and carbon monoxide (CO) from these tests yielded regression coefficients of 0.94 and 0.98 respectively. Both the State and EPA viewed these results as very encouraging and additional studies were planned on larger data sets to confirm these results and gain information on the nitrogen oxide (NO) correlation.                 

                    A 99-vehicle study was undertaken by New York that provided further support of the VMAS technology with respect to NYTEST program objectives.[2]                                          The VMAS unit used was still a prototype unit. Regression coefficients for HC, CO and NO were 0.95, 0.99, and 0.99 respectively.                 

At the 9th Annual Coordinating Research Council On-Road Vehicle Emission Workshop, New York presented preliminary data from their IPA Study. Correlation data on 299 vehicles that were part of the IPA Study indicated very good correlation between NYTEST and the IM240. This data was collected by parallel sampling of vehicle exhaust using both the VMAS analytical system and an IM240. Correlation coefficients were 0.90 for HC, 0.98 for CO, and 0.97 for NO. The VMAS units used in this study were not prototype instruments but actual field units from each of the three vendors supplying emissions inspection equipment to New York. 

Originally, the IPA Study was to involve over 15,000 tests on 5100 vehicles using actual production model VMAS units; however, a number of QA/QC issues arose during the data collection process that have reduced this number. As a result, the IPA Study provides 2,312 simultaneous NYTEST/IM240 emission tests. This data provides further evidence supporting NYTEST as a suitable alternative to the IM240. 

On June 7, 2000, New York State proposed an effectiveness for the NYTEST of 98 percent of IM240 credit. As result of the IPA study and data analysis, EPA determined that the NYTEST will receive emissions test credit as follows: 
    - 95 percent of IM240 credit for HC
    - 99 percent of IM240 credit for CO
    - 99 percent of IM240 credit for NO X 

EPA will continue to evaluate the data on the NYTEST as it becomes available. 

### C. Correction of the De minimus Deficiencies 

New York's May 24, 1999 submittal contains a new appendix 11 to the March 1996 SIP submittal that addresses the six de minimus deficiencies. The State has completed the development of its quality assurance and quality control measures. Plans for the data collection system and the public information program have been finalized. New York has committed to performing on-road testing as per 40 CFR 51.371. And, New York has included inspector training and certification into the State's Automotive Technician Training Program. 

### D. Final Program Regulations 

Prior to the State's May 24, 1999 submittal, New York submitted the final revised and adopted regulations for the enhanced I/M program consisting of 6NYCRR part 217, subparts 217-1, 217-2, and 217-4, and 15NYCRR part 79, sections 79.1 through 79.3, 79.6 through 79.9, 79.11 through 79.15, 79.17, 79.20, 79.21, 79.24, and 79.25. These revisions were previously reviewed by EPA as part of the March 27, 1996 submittal, at which time, the State had not completed their adoption. EPA's review at that time, indicated that they would satisfy the requirements of the Clean Air Act once these revised regulations were finalized. There are no significant changes to the final regulations. The revised subparts of 6NYCRR part 217 and sections of 15NYCRR part 79 became effective on April 22, 1997 and June 4, 1997 respectively. 

## IV. Proposed Action 

Today's action proposes the following: 

(1) On the basis of the data collected from the operation of the State's enhanced I/M program and the fact that the State has implemented the program enhancements described in their good faith estimate, EPA is proposing to find that New York has substantially demonstrated that its decentralized I/M program network is as effective as a centralized program network in achieving emission reductions according to the following: 
    - 88 percent as effective for HC emission reductions
    - 84 percent as effective for CO emission reductions
    - 86 percent as effective for NO X                      emission reductions                 

By proposing to approve New York's NHSDA demonstration, EPA has not reduced or eliminated the State's obligation to conduct ongoing enhanced I/M program evaluations under 40 CFR 51.351. 

(2) EPA is proposing to afford emissions test credit to the NYTEST as follows: 
    - 95 percent of IM240 credit for HC
    - 99 percent of IM240 credit for CO
    - 99 percent of IM240 credit for NO X 

(3) EPA is proposing to find that New York's SIP revision submittal adequately remedies the six de minimus deficiencies previously identified. 

(4) EPA is proposing to approve the latest revisions to the enhanced I/M program regulations. Specifically, these are found at 6NYCRR part 217, subparts 217-1, 217-2, and 217-4 and portions of 15NYCRR part 79 that became effective on April 22, 1997 and June 4, 1997 respectively. 

                    (5) EPA is proposing to replace the interim designation to the EPA approval of the State's enhanced I/M program and find that the State has an approved                           ( print page 58701)                        enhanced I/M program satisfying the requirements of the Clean Air Act.                 

## V. Administrative Requirements 

### A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” 

### B. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. 

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks. 

### C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. 

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule. 

### D. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. 

This proposed rule will 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, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. 

### E. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. 

This proposed rule will not have a significant impact on a substantial number of small entities because SIP approvals 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 this rule does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. 

                    Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of 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).                 

### F. 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 proposed 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. 

# List of Subjects in 40 CFR Part 52

      - Environmental protection
      - Air pollution control
      - Carbon monoxide
      - Hydrocarbons
      - Intergovernmental

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

Dated: September 1, 2000.

William J. Muszynski, 

Acting Regional Administrator, Region 2. 

# Footnotes

1.                             Evaluation of NYTEST-Sensors HC & CO Composite GPM Data vs IM240 Compliant Composite HC & CO GPM Data; July 9, 1997.                    
        Back to Citation      

2.                             Evaluation of Real-Time and Composite Mass Emissions Data from a VMAS Concept Unit: Comparison to IM240 Data and VMAS Feasibility in the NY Enhanced IM Program; Whitby & Mo; NY DEC; September 11, 1998.                    
        Back to Citation      

[FR Doc. 00-25228 Filed 9-29-00; 8:45 am] 

BILLING CODE 6560-50-P