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PA Bulletin, Doc. No. 96-439

PROPOSED RULEMAKING

DEPARTMENT OF TRANSPORTATION

[67 PA. CODE CH. 177]

Enhanced Emission Inspection

[26 Pa.B. 1221]

   The Department of Transportation (Department), Bureau of Motor Vehicles (Bureau), under the authority contained in 75 Pa.C.S. §§ 4103, 4531, 4701, 4706, 4707 and 6103 (Vehicle Code) proposes to amend Chapter 177 (relating to enhanced emission inspection program) as set forth in Annex A. These regulations are promulgated as required by the Federal Clean Air Act (Clean Air Act), as amended by Pub. L. No. 101-54, 104 Stat. 2399--2712 (42 U.S.C.A. §§ 7401--26718) and Pub. L. No. 104-59, ______ Stat. ______ (known as the National Highway System Designation Act of 1995 (NHS Act)).

Purpose of the Chapter

   The purpose of this chapter, consistent with sections 4531, 4701, 4702, 4706, 4707 and 4721 of the Vehicle Code, is to implement an enhanced emission inspection program as required by the Clean Air Act (42 U.S.C.A. §§ 7401--7671q) and the regulations promulgated thereunder, 40 CFR Part 51.

Purpose of these Amendments

   These proposed amendments delete the existing Chapter 177 and reestablish the same to enable the Commonwealth to create and maintain an annual, enhanced vehicle emission inspection and maintenance (I/M) program that meets Federal requirements.

   The 1990 amendments to the Clean Air Act impose strict requirements on states to clean the air, particularly in polluted urban areas. The Clean Air Act requires that in counties with serious or worse ozone problems, several steps be taken to reduce emissions, including implementing an enhanced I/M program. The only areas in this Commonwealth classified under the 1990 Clean Air Act amendments as having a serious or worse ozone problem are the counties of Bucks, Chester, Delaware, Montgomery and Philadelphia, also referred to as the ''five county Philadelphia area.''

   However, the 1990 amendments to the Clean Air Act also created the Northeast Ozone Transport Region. An ozone transport region is a group of states or parts of states that adjoin each other and that comprise a geographical area where air currents carry pollution from one part of the region to another, thus affecting the air quality of neighboring areas. States in this ozone transport region, which includes Pennsylvania, must implement enhanced I/M programs regardless of the quality of the air in those counties, if the area meets a certain population threshold of 100,000 or more. As a result, Pennsylvania must implement an enhanced I/M program in 25 counties, not just the five county Philadelphia area.

   The Clean Air Act also requires each state to submit a State Implementation Plan (SIP) which details how the state will control all types of pollutants, including mobile source pollutants, and how the state will achieve and maintain clean air standards. One of the key elements of the SIP is the I/M program, since it provides for control of a major source of pollution and can achieve results soon after it is implemented. An effective I/M program will also help offset growth in vehicle use and miles travelled and allow for new industrial growth that might cause additional pollution.

   Vehicles depend on properly functioning emission controls to keep pollution levels low. Minor malfunctions in the emission control system can increase emissions significantly, and the Environmental Protection Agency (EPA) estimates that the average car on the road emits 3 to 4 times the amounts of pollutants permitted by new car standards. Since major malfunctions in the emission control system can cause emissions to skyrocket, the EPA has also estimated that 10% to 30% of vehicles cause the majority of the vehicle related pollution problem.

   An I/M program achieves its objective by identifying vehicles that have high emissions of pollutants as a result of one or more malfunctions, and by requiring these vehicles to be repaired. An enhanced I/M program covers more model years of vehicles operated in an area, identifies high emitting vehicles and has additional or ''enhanced'' features to assure that vehicles are tested properly and are effectively repaired. The Clean Air Act directed the EPA to establish minimum performance standards for an enhanced I/M program.

   Section 182(c)(3) of the Clean Air Act (42 U.S.C.A. § 182(c)(3)), required the EPA Administrator to publish guidance in the Federal Register for enhanced I/M which includes a performance standard achievable by a model or benchmark program combining emission testing, including on-road emission testing, with visual inspection to detect tampering with emission control devices and misfueling for certain passenger vehicles and light duty trucks; and program administration features necessary to reasonably assure that adequate management resources, tools and practices are in place to attain and maintain the performance standard.

   The Clean Air Act further specifies that each enhanced I/M program shall include, at a minimum, computerized emission analyzers; on-road testing devices; denial of waivers for warranted vehicles or repairs relating to tampering; a $450 expenditure to qualify for waivers for emissions-related repairs not covered by warranty; enforcement through registration denial unless an existing program with a different mechanism can be demonstrated to have greater effectiveness; annual inspection unless a state can demonstrate that less frequent testing is equally effective; centralized testing unless the state can demonstrate that decentralized testing is equally effective; and inspection of the emission control diagnostic system. These are required design elements of each enhanced I/M program, not merely of a model or benchmark program. In addition, each enhanced I/M state must biennially submit to EPA a comprehensive evaluation of program effectiveness, including an assessment of emission reductions achieved by the program. Enhanced I/M programs must achieve minimum emission reductions of volatile organic compounds and oxides of nitrogen from vehicles in the affected ozone nonattainment areas and emission reductions of carbon monoxide in the affected carbon monoxide nonattainment areas.

   When the amendments to the Clean Air Act were enacted, the state-of-the-art technology was the BAR 90, the acronym used for the California Bureau of Automotive Repair's ''Exhaust Gas Analyzer Specifications,'' an upgrade to the simple idle test used in most currently operating I/M programs. The BAR 90 specifications were required for analyzer use in California to measure emissions of volatile organic compounds and carbon monoxide. The emissions stations currently operating in the ongoing Pennsylvania decentralized test and repair program are the BAR 80, the predecessor to the BAR 90.

   On November 5, 1992, the EPA published the required guidance as a final rule containing the I/M program requirements (1992 Rule). According to the EPA, the concept of a performance standard provides affected states flexibility in designing an enhanced I/M program, as long as the numerical goal for emission reductions is attained. Except where mandated by the Clean Air Act, states may choose to vary any of the design elements of the model program provided the overall effectiveness is at least as great as the performance standard. The 1992 Rule detailed various requirements for design and implementation of all I/M programs. These included improved enforcement, quality assurance, quality control, test procedures, on-road testing and other aspects of the program.

   In the 1992 Rule, the EPA stated that the simple idle test used in ongoing I/M programs has serious flaws. The idle test works well for pre-1981 carbureted, noncomputerized cars because typical emission control problems could be detected while the vehicle was idling. According to the EPA, today's high-tech cars, with sensors and computers that continuously adjust engine operations, are more effectively tested with procedures that include cycles of acceleration and deceleration. Sensor and computer operation and emissions must be tested during the high emission acceleration and deceleration driving modes to most reliably identify high polluting cars. At the same time, the EPA was of the opinion that the visual inspection of emission control devices is less relevant. This is because tampering and misfueling rates have declined significantly with the phase out of leaded gasoline and the difficulty of tampering with today's high-tech cars.

   Another flaw identified by the EPA with the simple idle test is its inability to detect excessive evaporative emissions. Over the last several years, the EPA has learned that vapors which escape from various points in the vehicle fuel system present a huge source of hydrocarbon emissions, generally greater than tailpipe exhaust. No ongoing I/M program tests for these evaporative emissions. Therefore, in the 1992 Rule, the EPA would require implementation of two functional checks which determine whether vehicle evaporative emission control systems are operating properly: (1) a pressure check to find leaks in the fuel system, such as a bad gas cap or cracked evaporative system hose; and (2) a check of the purge system that removes gasoline vapors stored in the charcoal canister and routes them to the engine where they can be burned as fuel. The purge check is done during testing which takes place while the vehicle is in a driving mode because the purge system does not operate during idle.

   Instead of requiring an upgrade to the BAR 90 in addition to the two functional tests, the 1992 Rule based its performance standard on a different test which required new equipment known as the IM 240, which simulates actual driving and allows measurement of tailpipe emissions and evaporative system purge. According to the EPA, the IM 240 also reliably identifies vehicles needing repair. The EPA noted that the IM 240 costs about $140,000 per lane versus $15,000 to $40,000 for variations on the BAR 90. The EPA also noted that the time it takes from when a vehicle enters the test lane until the vehicle leaves is 10--15 minutes versus about 5 minutes for the simple idle test.

   In its 1992 Rule, the EPA also announced its preference for centralized test-only networks for enhanced I/M programs. The 1992 Rule also contained a provision for case-by-case equivalency, in which emission reduction credits for test-and-repair networks are assumed to be 50% less than for a test-only network for the tailpipe emission test, purge test, evaporative system integrity test, catalyst check, and gas cap check; and 75% less for the evaporative canister checks, positive crankcase ventilation check, and air system checks. This meant that if a state chose to implement a test-and-repair I/M program, the EPA would automatically penalize the program design, and that the loss of emission reduction credits would have to be made up elsewhere in the program such as by testing more model years or more frequently. The EPA stated that smaller reductions and loss of credits for the various test protocols could be claimed if a state could demonstrate to the satisfaction of the EPA Administrator that, based on past performance with the specific test type and inspection standards employed, its test and repair system will exceed these levels. At a minimum, the 1992 Rule required that a demonstration include: (1) surveys that assess the effectiveness of repairs performed on vehicles that fail the tailpipe emission test and evaporative system test; (2) measurement of actual tampering rates, their change over time, and the change to finding and fixing such tampering as opposed to deference effects; and (3) undercover surveys of inspector effectiveness as it relates to identifying vehicles that need repair.

   However, in its preamble to the 1992 Rule, the EPA stated that it believed

. . . it could not accept any of the currently operating decentralized programs as equally effective to centralized. With these effectiveness losses, it is not possible for a decentralized test and repair program to meet the performance standard for enhanced I/M, regardless of the test type and vehicle class coverage.

   The EPA believed that significant changes were needed in the design and oversight of decentralized programs. The EPA suggested that tests were more likely to be performed correctly if the testing agent did not have any interest or involvement in the repair of vehicles. Another important consideration is oversight of the multitude of stations found in low volume decentralized programs. Extensive quality assurance efforts are necessary because of the greater number of stations and inspectors, limited oversight capability, greater incentive for improper testing and lack of effective enforcement mechanisms in many programs. Even very tightly designed and run quality assurance processes and decentralized systems do not insure that proper inspections do take place, that forms are adequately controlled, or that the program actually achieves estimated emission reductions. The EPA stated that while advanced analyzer technology, such as the BAR 90, may improve the effectiveness of decentralized testing, the analyzer alone would not eliminate the incentive for private station owners to perform tests improperly, or solve the quality assurance and oversight programs repeatedly identified in decentralized programs.

   Given all of the hurdles the EPA was imposing on states that desired to implement a decentralized test-and-repair network to satisfy the enhanced I/M requirements, the Commonwealth proceeded with the EPA preferred IM 240 centralized test-only network under section 4706 of the Vehicle Code (relating to prohibition on expenditures for emission inspection program) A single contractor, Envirotest Systems, was selected to construct and operate 86 test-only locations in the 25 affected counties. A vehicle would be required to use one of the Envirotest sites for the emissions test, go to a repair facility for any needed repairs, and then return to an Envirotest location for a retest. The test fee, determined in the contract between the Department and Envirotest, would have averaged $17.20. The program as then proposed would have been a biennial program, testing approximately 5.9 million vehicles every 2 years. Compliance with the program was to have been ensured by registration denial: if an emissions test was not performed or if a waiver were not issued, the vehicle would not be permitted to be registered. Moreover, vehicle owners would have been required to spend at least $450 in repairs before a waiver could be issued.

   However, section 4706(c) of the Vehicle Code required the Department to cease implementation of the centralized, test-only system and move to consideration of either a totally decentralized or a hybrid testing network. A hybrid testing network would consist of elements of both test-only and decentralized test-and-repair stations.

   The EPA thereafter announced in December 1994, that it would soon amend its 1992 Rule to establish separate ''high'' and ''low'' enhanced I/M performance standards for areas required to implement enhanced I/M programs, and on September 7, 1995, the EPA published its ''Inspection Maintenance Flexibility (I/M Flexibility Rule) Amendments.'' The ''high'' standard would be the same as the performance standard originally established by the 1992 Rule. The ''low'' standard would be applicable to areas that could comply with the other Clean Air Act pollution reduction requirements and achieve attainment with a program that had less emission reduction requirements than the high performance standard. The EPA asserted that since the low standard would be considerably more lenient, states subject to it would have more flexibility in terms of the program that they would implement.

   In addition to the new low performance standard, the EPA developed emission reduction credits for several other program concepts for which the EPA had never given emission reduction credits. These included credits for: (1) technician training and certification; (2) retest based hybrid I/M networks; and (3) alternate test equipment known as the ASM, an acronym for ''Acceleration Simulation Mode.'' The technician training and certification concept offers additional emission reductions if a state adds certain elements to its program. The retest based hybrid and ASM approaches can be used to meet the high enhanced or low enhanced performance standard. However, the EPA maintained its preference for the IM 240 test-only centralized network, and its belief that a test-and-repair program, even with ASM, purge and full technician training credit, cannot meet or even come close to the high enhanced I/M performance standard. The main reason a decentralized test-and-repair network does not meet the high enhanced performance standard is because of the automatic 50% penalty imposed in the 1992 Rule.

   The I/M Flexibility Rule also revised the high enhanced I/M performance standard to include a visual inspection of the positive crankcase ventilation valve on all passenger vehicles and light duty trucks for model years 1968 to 1971, inclusive, and of the exhaust gas recirculation valve on all passenger vehicles and light duty trucks for model years 1972 through 1983, inclusive.

   The 1992 Rule required that states with enhanced I/M programs shall implement a $450 minimum expenditure to qualify for a waiver when the I/M program starts in 1995. For emissions related repairs not covered by warranty, the Clean Air Act requires a minimum expenditure of $450 for vehicles to qualify for a waiver. The Clean Air Act also requires that the waiver limit be adjusted annually based on the consumer price index (CPI) with a base year of 1989. With the I/M Flexibility Rule, the EPA postponed full implementation of the enhanced I/M waiver requirements until July 1, 1998, to allow states time to reach the long term goals of the Clean Air Act. The EPA believed that the enhanced I/M program should be fully implemented by 1998, including the CPI adjusted $450 waiver, which would enable areas to achieve the reductions contemplated by the program prior to the November 15, 1999, attainment deadline for serious ozone nonattainment areas. EPA also stated that the extension of the waiver deadline will give states the opportunity to improve technician training so that by 1998, the majority of vehicles would be repaired for well below the CPI adjusted $450 minimum waiver amount.

   Later in September of 1995, the EPA issued a notice of proposed rulemaking for Inspection and Maintenance Ozone Transport Region Flexibility Amendments (OTR I/M). The proposed OTR I/M rulemaking may revise the I/M requirements by adding a special low enhanced performance standard for qualified areas in ozone transport regions. This additional performance standard would apply to attainment, marginal and moderate ozone nonattainment areas in the OTR. The OTR low enhanced performance standard model program would consist of the following elements: annual testing of 1968 and newer light duty vehicles and light duty trucks; on-board diagnostic (OBD) checks for 1996 and newer vehicles; remote sensing of 1968 through 1995 vehicles; catalyst checks on 1975 and newer vehicles; and PCV valve checks on pre-1975 vehicles. The EPA is still in the process of evaluating the emission impact of the OTR I/M rule.

   On November 28, 1995, the NHS Act was enacted. The NHS Act specifically addresses the 50% penalty. Section 347 of the NHS Act states that ''the Administrator of the Environmental Protection Agency shall not require adoption or implementation by a state of a test only IM 240 enhanced vehicle inspection and maintenance program as a means of compliance with . . . [Enhanced IM requirement].'' It further provided that the ''Administrator shall not disapprove or apply an automatic discount to a state implementation plan revision . . . on the basis of a policy, regulation or guidance providing for a discount of emissions credits because the inspection and maintenance program and such plan revision is decentralized or a test and repair program.''

   The NHS Act permits, within 120 days of the date of its enactment, a state to submit a SIP revision proposing an interim inspection and maintenance program. The 120 days ends on March 27, 1996. The NHS Act requires the EPA Administrator to

. . . approve such program based on the full amount of credits proposed by the state for each element of the program if the proposed credits reflect good faith estimates by the state and the revision is otherwise in compliance with such Act. If, within such 120 day period, a state submits to the Administrator proposed revisions to the implementation plan, has all of the statutory authority necessary to implement the revisions, and has proposed a regulation to make the revisions, the Administrator may approve the revisions without regard to whether or not such regulation has been issued as a final regulation by the state.

   The conference language accompanying the NHS Act recognized that the 1990 Clean Air Act Amendments included some specific requirements for enhanced I/M programs but, beyond these requirements, which did not include centralized testing or a particular testing technology, states were to be given broad latitude to design programs meeting a general performance standard. Accordingly, the NHS Act prevents the EPA Administrator from requiring states to use the test-only IM240 in enhanced I/M programs.

   Another consideration for reevaluating the test equipment to be used is the increasing availability of on-board diagnostic equipped vehicles, or vehicles that have the ability to perform self-diagnosis of emissions problems. Section 202(m) of the Clean Air Act (42 U.S.C.A. § 7521(m)), directed the EPA to promulgate regulations requiring manufacturers to install OBD systems on all new 1994 and later model year light duty vehicles and light duty trucks. According to the EPA, these OBD systems will monitor emission control components for any malfunction or deterioration causing violations of any emission standards, and alert the vehicle operator to the need for repair. When a malfunction occurs, diagnostic information must be stored in the vehicle's computer to assist the mechanic in diagnosis and repair.

   Since OBD equipped vehicles will not constitute a significant portion of the fleet for several years, the EPA expects existing I/M programs to identify and cause to be repaired those vehicles in all I/M areas which exceed the emission standard for that vehicle. The EPA does not attribute any emission reductions to OBD until the year 2005. By that year, the EPA estimates that roughly 73% of the in-use fleet will be OBD equipped, and an increasingly significant number of these will be reaching higher mileages where repairs will be more typically required. The EPA also estimates that the existing I/M test equipment will likely be aged to the point of requiring significant maintenance and perhaps replacement. Therefore, instead of potentially investing large sums of money in updating all their I/M test equipment, the EPA assumes that I/M programs will begin using a check on the OBD system to make pass/fail determination on OBD equipped vehicles during I/M inspection. Pre-OBD vehicles would continue to be subject to the enhanced I/M test discussed in this proposed rulemaking.

   The OBD will save the consumer money. The EPA expects stations to reduce charges for vehicles which undergo an OBD I/M inspection, since the inspection would consist solely of a quickly conducted check of the OBD system for stored trouble codes. The reduction in time spent by repair technicians is expected to result in a reduction in labor costs and an overall reduction in the cost to repair many malfunctioning vehicles. In addition, the vehicles operate more efficiently when emission repairs are made.

   By the year 2005, the EPA estimates that there will be roughly 65 million OBD equipped vehicles in 49-state I/M areas. The EPA has not been able to adequately quantify some potential cost savings, such as those savings associated with early repairs of malfunctions which, if left undetected and unrepaired, could result in the need for even more costly repairs in the future. Also, improved repair effectiveness should reduce the potential for a part to be unnecessarily replaced in attempting to fix a problem. Repair facilities should also benefit from the availability of generic tools for accessing and using the OBD system in problem diagnosis and repair. These service facility benefits could be passed along to the consumer in the form of lower repair costs. While none of these cost savings have been quantified, all should reduce the cost of OBD implementation.

   Since test technology is at the threshold of OBD implementation, the issue for the Commonwealth was what enhanced I/M program to implement, consistent with section 4706 of the Vehicle Code. Air quality monitoring results from the summer of 1995, establish that the Commonwealth cannot wait until OBD is here to upgrade its current I/M program. However, the Commonwealth did not want to require test-and-repair facilities to spend an exorbitant amount of money for test-and-repair equipment that the EPA estimates might very well be obsolete within the next decade. Thus, given that the structure of any enhanced I/M system may change over time, the IM 240 was rejected as unfeasible.

   These proposed amendments contain the starting point to meet enhanced I/M program requirements with a totally decentralized test-and-repair network. The program outlined in these proposed amendments will affect approximately 5.9 million vehicles. Under the program, all test and repairs will be conducted on an annual basis, in conjunction with the existing annual safety inspections. A monetary cap for repairs will be phased in, beginning at $150, for the first 2 years of the program. Many private garages will be available for testing, not just the limited number of 86 stations as originally proposed under the centralized testing program. The schedule for emissions inspections will be coordinated with annual safety inspections rather than with vehicle registration renewals. An emission inspection must be completed prior to undergoing a safety inspection. A certificate of emission inspection or sticker will be prominently displayed on the vehicle's windshield which can be readily observed by police officers as an enforcement measure.

   The decentralized test-and-repair program will be phased in. Under the NHS Act, the enhanced I/M program must begin no later than 12 months after the EPA has approved the Commonwealth's I/M SIP, a decision on which the EPA expects to issue in July or August, 1996. EPA is requiring that the program be implemented in at least 9 counties by July or August, 1997. The counties that would be required to implement the program in 1997, are Beaver, Allegheny, Washington, Westmoreland, Bucks, Montgomery, Philadelphia, Delaware and Chester. The Department believes that it will have a test-and-repair network in place in time for those counties to have a program that meets the EPA requirements because these areas have an ongoing I/M program operating now. The counties of Lehigh and Northampton will continue with the current emissions program until 1999, when an enhanced system of emissions testing will be required to be implemented. The remaining 14 counties, which do not now have an emission program operating, also will have a program in 1999.

   Counties which must meet the high enhanced performance standard are Philadelphia, Bucks, Montgomery, Chester and Delaware. The test procedure proposed to be used in those counties will be the Acceleration Simulation Mode (ASM) test procedure. The remaining 20 counties which must meet the low-enhanced performance standard are Allegheny, Beaver, Berks, Blair, Cambria, Centre, Cumberland, Dauphin, Erie, Lackawanna, Lancaster, Lebanon, Lehigh, Lycoming, Luzerne, Mercer, Northhampton, Washington, Westmoreland and York.

   The Department is proposing that there be no cap on the test fee that test-and-repair stations can charge for the enhanced emissions test. While a cap on the test fee serves the purpose of ensuring that the fee is affordable to motorists, the Department believes that a cap artificially lowers the fee and may unintentionally encourage emissions facilities to fail vehicles that should pass just so that the station can recover the costs of performing the test. The safety inspection program, another inspection program managed by the Department, operates successfully without a cap on the fee that stations can charge for performing the safety inspection. As in the safety inspection program, the fee would not be set by the State but rather would be market-driven, and motorists would be able to select their preferred facility using criteria that are important to that particular motorist, such as location, price, and/or service. The Department expects market competition to keep the emissions test fee low.

   The Department is not proposing that all vehicles be repaired until they pass the emissions test. Rather, as in the ongoing I/M program, a vehicle can be waived from passing the emissions test if it spends a minimum amount on emission-related repairs. The waiver amount in the current emission program is $50 or $25, depending on the age of the vehicle. However, there are few, if any, emissions related repairs that can be performed at these amounts. Since the purpose of the enhanced emissions program is to identify the vehicles that need repairs and have those repairs made, the Department is proposing that the waiver amount be set at $150, for the first 2 years of the enhanced program. Thereafter, the waiver amount will be the minimum amount required by the EPA.

   In addition, the Department intends to issue requests for proposals for data collection, quality assurance/audits, inspector /mechanic training, remote sensing and an overall program manager. These requests will be drafted to ensure that EPA requirements will be met.

   An issue raised with the previously proposed centralized testing program was the lack of public input into the structure of the program. The Department and the Department of Environmental Protection have established ozone stakeholder groups in the southeast and the southwest parts of the state to work on specific solutions to the ozone problems in those regions. Accordingly, the Department expects and seeks significant public input into the final form of the program.

   Section 4706(g)(3) of the Vehicle Code provides the necessary statutory authority to implement a totally decentralized test-and-repair enhanced I/M program. However, the Department will be seeking amendments to allow a visual component to the inspection, coordinate the emissions inspection to the safety inspection, as well as to permit the Department to charge certain fees: application fees to facilities and technicians, and a sticker fee to motorists. These fees would be remitted to the Department to enable the enhanced program to be self-supporting. These portions of the enhanced emissions program will not be implemented until enactment of the statutory amendments.

   The following represents a summary of the significant provisions which are contained in these proposed amendments. Although the Department realizes that there is keen public interest in the arena of emission inspection and certainly wanted to canvas a broad cross-section of affected persons for their input in developing these proposed amendments, under the time constraints imposed upon the Commonwealth by the EPA and the National Highway System Designation Act of 1995, as part of the Commonwealth's SIP the Department must submit an accompanying published, proposed rulemaking not later than March 27, 1996. Accordingly, the Department was not able to have the diversity of discussion and participation that is desired and felt necessary for proposing regulations of this magnitude. The Department, however, in an effort to alert a portion of the affected industry to the Department's proposed program and to solicit comment, met informally with the Service Station Dealers and Automotive Repair Association, and the Automotive Service Association of Pennsylvania. Further, the Department strenuously and earnestly invites comment on these proposed amendments.

   Proposed §§ 177.21--178.23 (relating to implementation of the enhanced I/M program) explain the implementation procedure for the new I/M program. These sections provide for the current test program to cease as of the date specified by the Secretary of the Department by notice in the Pennsylvania Bulletin, and the enhanced emission inspection program to begin on a date designated by the Secretary by notice in the Pennsylvania Bulletin, or 60 days after the Secretary has certified the effective date of the commencement of the program by notice in the Pennsylvania Bulletin.

   Proposed § 177.51 (relating to program requirements) provides an outline of the proposed enhanced I/M program. The program includes the establishment of a decentralized emission inspection network of privately owned and operated, Department-certified facilities. Subject vehicles and exhaust emission test types are established, including a visual inspection of the emission control devices or an antitampering inspection. The geographical areas subject to emission inspection are to be established by certification by the Secretary and are to be published in the Pennsylvania Bulletin.

   Section 177.51(i) provides for the on-road or roadside testing of vehicles outside the normal enhanced I/M procedure and establishes that subject vehicle owners shall comply with all emission related recall notices concerning their vehicles as a prerequisite to completing the emission inspection and registration process. Federal regulations require that enhanced areas are required to use on-road testing to evaluate the in-use performance of at least 0.5% of the vehicles subject to testing each year, and owners of vehicles found to be high emitters are to be required to pass an out-of-cycle follow-up inspection. Moreover, the EPA has stated that it intends to grant extra emission credit for an enhanced I/M program that is designed to obtain significant reductions over and above those already achieved by other aspects of the program. Section 4706(g)(3) of the Vehicle Code requires the Department to ''utilize the newest and most efficient technologies, including, but not limited to, remote roadside testing, identification and targeting of gross polluting vehicles and alternative equipment to existing inspection technology.''

   The Commonwealth also intends to seek statutory authority to have visual inspections performed as part of the emissions test. In the 1992 Rule, the EPA had exempted older vehicles from the IM240, visual inspections and evaporative systems checks. The EPA also had stated its intent to not enforce the requirement for visual inspections. Section 9 of the act of February 10, 1994 (P. L. 10, No. 2) deleted the Department's authority to require visual inspections. However, under the opinion of the Court of Appeals for the District of Columbia Circuit, Natural Resource Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir. 1994), the EPA was required to establish an enhanced I/M performance standard that was ''the product of two different kinds of testing,'' including a visual and an emission test. Since EPA's 1992 Rule included only one test, a steady-state, idle-based tailpipe test on vehicle model years 1968 through 1983 and did not require a visual inspection of those cars, the Court found that the 1992 Rule fell short of complying with the letter of Clean Air Act for those model years. The EPA amended the enhanced I/M performance standard to include the required visual checks, and these proposed amendments are drafted to be consistent with the visual inspection requirements.

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