PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Amendment of Part 79 of Title 15 NYCRR.

To eliminate the NYTEST emissions program in the New York Metropolitan Region on January 1, 2011.

Provides for the elimination of the NYTEST emissions inspection program in the New York Metropolitan Region.

This primary purpose of this regulation is elimination of the NY Transient Emissions Short Test (NYTEST) program in the New York Metropolitan Area. Conforming amendments are made throughout Part 79.

The regulation clarifies which types of motor vehicles are subject to specific safety and emissions tests.

The regulation clarifies the definition of seating capacity in a motor vehicle.

In 2011, DMV anticipates that inspection stations will be able to transmit inspection results to DMV via broadband access instead of the current dedicated phone line. The proposed rule provides for the potential use of broadband access.

Monica J Staats, NYS Department of Motor Vehicles, Legal Bureau, Room 526, 6 Empire State Plaza, Albany, NY 12228, (518) 486-3131, email: [email protected]

Same as above.

45 days after publication of this notice.

1. Statutory authority: Section 301(a) of the Vehicle and Traffic Law provides that the Commissioner shall require every motor vehicle registered in this state to have an emissions inspection. Section 301(d)(1) of such Law authorizes the Commissioner, in consultation with the Commissioner of the Department of Environmental Conservation, to implement a motor vehicle emissions inspection program. Section 302(a) of such Law provides that it shall be the duty of the Commissioner to administer the provisions of Article 5. Section 302(e) of such Law empowers the Commissioner to make reasonable rules and regulations for the administration and enforcement of Article 5 and the periods during which motor vehicles are required to be inspected. Section 303(d)(1) of such Law provides that the Commissioner shall supervise and cause inspections to be made of official inspection stations. The Federal Clean Air Act of 1990 (42 U.S.C 7401 et. seq.) required states to implement certain emissions inspection programs in order to comply with the Act and avoid the loss of federal funding.

2. Legislative objectives: The Federal Clean Air Act of 1990 (42 U.S.C 7401 et. seq.) and the accompanying regulations at 40 CFR Part 51 required states to implement an inspection and maintenance program that conforms to such federal regulations. The Clean Air Act required New York State to establish a dynamometer based emissions inspection program in the New York Metropolitan Area (NYMA). Failure to do so would have cost the State millions of dollars in federal highway funding. Thus, pursuant to Article 5 of the Vehicle and Traffic Law, the Department established such a program in the NYMA in 1998, known as the NYTEST (NY Transient Emissions Short Test) program. Since 2005, with the implementation of the NY Vehicle Inspection Program (NYVIP) using the on board-diagnostic equipment (OBDII), the NYTEST program has primarily applied to pre-1996 vehicles.

The elimination of the NYTEST program at the end of 2010 is in accordance with the Clean Air Act's requirements. New York State's emissions program will still align with the Act's objectives and specifications. In addition, the Department of Environmental Conservation's State Implementation Plan, which documents how the State complies with the Clean Air Act, provides for the elimination of the NYTEST program at the end of 2010. DEC supports this proposed rulemaking.

3. Needs and benefits: Effective January 1, 2011, the proposed amendments to Part 79 will eliminate the NYTEST emissions program at the end of 2010. The NYTEST program is no longer necessary to comply with the Clean Air Act. Pre-1996 motor vehicles registered in the New York Metropolitan Area (NYMA) will be subject to the low enhanced emissions test, which is currently used for pre-1996 motor vehicles outside of the NYMA, and is set forth in Part 79.24(i). This consists of a visual review of emissions related equipment; such review takes about two minutes to perform.

Elimination of the NYTEST program will have numerous benefits for the inspection industry. A licensed inspection station must pay about $2,500 for the NYVIP computerized vehicle inspection system (CVIS) equipment, while the cost for the NYTEST CVIS equipment is about $35,000.00 to $45,000.00. Service and warranty costs for the NYVIP equipment are included in the original purchase price, while service contracts for the NYTEST CVIS equipment currently cost about $3,500.00 to $8,000.00 per year. If an inspection station does not maintain a service contract, all costs for the parts and labor required for repairs must be paid for by the station. A certified motor vehicle inspector spends fifteen to twenty minutes on a NYTEST emissions inspection, while an OBD II emissions inspection takes about five minutes to complete. The public also benefits from the shorter inspection process, because their waiting time for the inspection is reduced.

In addition, since stations will no longer be required to maintain a NYTEST dynamometer, the space used for the dynamometer can be converted back to usable space for performing repairs.

Finally, in 2011, DMV anticipates that inspection stations will be able to transmit inspection results to DMV via broadband access instead of the current dedicated phone line. This will require a software update to the inspection equipment and will save the inspection stations about $70 a month, which represents the cost of the dedicated line. The proposed rule provides for the potential use of broadband access.

The rule also makes some minor clarifying amendments to Part 79 that are not substantive in nature.

4. Costs:

a. Cost to regulated parties: There will be no cost to inspection stations, the State or to local governments. There are savings to the industry in relation to equipment cost and the time needed to conduct an inspection. A licensed inspection station must pay about $2,500 for the NYVIP computerized vehicle inspection system (CVIS) equipment, while the cost for the NYTEST CVIS equipment is about $35,000.00 to $45,000.00. Service and warranty costs for the NYVIP equipment are included in the original purchase price, while service contracts for the NYTEST CVIS equipment currently cost about $3,500.00 to $8,000.00 per year. If an inspection station does not maintain a service contract, all costs for the parts and labor required for repairs must be paid for by the station. A certified motor vehicle inspector spends fifteen to twenty minutes on a NYTEST emissions inspection, while an OBD II emissions inspection takes about five minutes to complete. The low enhanced emissions test is performed in about two minutes.

Finally, in 2011, DMV anticipates that inspection stations will be able to transmit inspection results to DMV via broadband access instead of the current dedicated phone line. This will require a software update to the inspection equipment and will save the inspection stations about $70 a month, which represents the cost of the dedicated line.

b. Source: DMV's Office of Vehicle Safety.

c. Cost to vehicle registrants: There are no costs to motor vehicle registrants.

5. Local government mandates: There are no new mandates imposed upon local governments.

6. Paperwork: This proposal does not impose any new paperwork requirements.

7. Duplication: This proposed regulation does not duplicate or conflict with any State or Federal rule.

8. Alternatives: The Department consulted with 25 organizations and individuals who have expressed interest in the State's emissions inspection program. Such organizations include the Greater New York Automobile Dealers Association, the New York Independent Dealers Association and the Gasoline & Automotive Service Dealers Association, Ltd. We received no comments about this proposed rule.

Since the NYTEST program remains very costly and continues to serve fewer pre-1996 vehicles each year, there is no compelling justification to continue the program, particularly since its termination will not jeopardize the State's compliance with the Clean Air Act. For these reasons, a no action alternative was rejected.

9. Federal standards: This proposal does not duplicate a federal rule. The rule does not exceed the Federal emission standards set forth in the Clean Air Act of 1990 or its accompanying regulations at 40 CFR Part 51. The proposal maintains New York State's compliance with the Clean Air Act.

10. Compliance schedule: The regulation will be effective on January 1, 2011.

1. Effect of rule: There are currently 3,316 NYTEST equipped public inspection stations in the New York Metropolitan Area (NYMA) that are small businesses. Twenty-five local governments run 63 inspection stations with NYTEST equipment.

2. Compliance requirements: Effective January 1, 2011, NYTEST equipped inspection stations will no longer be required to inspect pre-1996 motor vehicles with a dynamometer. Instead, pre-1996 motor vehicles registered in the New York Metropolitan Area (NYMA) will be subject to the low enhanced emissions test, which is currently used for pre-1996 motor vehicles outside of the NYMA, and is set forth in Part 79.24(i). This consists of a visual review of emissions related equipment; such review takes about two minutes to perform.

3. Professional services: This regulation would not require inspection stations to obtain new professional services beyond any that they may already use.

4. Compliance costs: There are no compliance costs associated with this proposal.

5. Economic and technological feasibility: This proposal will not impose any new technological requirements for inspection stations. This proposal is economically feasible due to cost savings. A licensed inspection station must pay about $2,500 for the NYVIP computerized vehicle inspection system (CVIS) equipment, while the cost for the NYTEST CVIS equipment is about $35,000.00 to $45,000.00. Service and warranty costs for the NYVIP equipment are included in the original purchase price, while service contracts for the NYTEST CVIS equipment currently cost about $3,500.00 to $8,000.00 per year. If an inspection station does not maintain a service contract, all costs for the parts and labor required for repairs must be paid for by the station. A certified motor vehicle inspector spends fifteen to twenty minutes on a NYTEST emissions inspection, while an OBD II emissions inspection takes about five minutes to complete.

In 2011, DMV anticipates that inspection stations will be able to transmit inspection results to DMV via broadband access instead of the current dedicated phone line. This will require a software update to the inspection equipment and will save the inspection stations about $70 a month, which represents the cost of the dedicated line. The proposed rule provides for the potential use of broadband access.

6. Minimizing adverse impact: This proposal has no adverse impact on small businesses and local governments. As stated above, this proposal will result in significant savings for inspection stations.

7. Small business and local government participation: The Department consulted with 25 organizations and individuals who expressed interest in the State's emissions inspection program. Such organizations include the Greater New York Automobile Dealers Association, the New York Independent Dealers Association and the Gasoline & Automotive Service Dealers Association, Ltd. We received no comments about this proposed rule.

A Rural Area Flexibility Analysis is not attached because this rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.

A Job Impact Statement is not submitted with this proposal because there is no adverse impact on job creation or development in New York State.