UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

1650 Arch Street

Philadelphia, Pennsylvania 19103-2029

	DATE:	December 18, 2007

 ADVANCE \x15 SUBJECT:

	Technical Support Document

Virginia; Incorporation of On-board Diagnostic Testing and Other
Amendments to the Motor Vehicle Emissions Inspection Program for the
Northern Virginia Program Area

[EPA-R03-OAR-2007-0185]

	 ADVANCE \x15 FROM:

	Brian Rehn  /S/

Environmental Engineer

Air Quality Planning Branch (3AP21)

 ADVANCE \x15      TO:

	Files

 ADVANCE \x15 THRU:

	Cristina Fernandez, Chief   /S/

Air Quality Planning Branch (3AP21)

I. Background - Federal Enhanced Emissions Inspection & Maintenance
Program Requirements and Virginia’s Enhanced I/M Program

Federal Requirements for Highway Motor Vehicle Emissions Testing

The Clean Air Act of 1990 (CAA) required states to adopt either (basic(
or (enhanced( motor vehicle emissions testing programs for areas not in
attainment of ozone or carbon monoxide ambient air pollution standards.
These vehicle emissions testing programs, also referred to as inspection
and maintenance (I/M) programs are also required in densely populated
metropolitan statistical areas (MSAs) in the Northeastern US ( in MSAs
having populations over 100,000 persons.  The purpose for establishing
these I/M programs, within this statutory-defined Ozone Transport Region
(OTR), was to address the regional transport of ozone pollution. The I/M
program requirement continues to apply in these subject OTR MSAs even if
these MSAs are in attainment of CAA air quality standards for ozone and
carbon monoxide.

Mandatory testing and repair of motor vehicles emissions systems is
intended to identify vehicles having excessive tailpipe or evaporative
emissions (i.e., emissions that grossly exceed standards to which a
particularly vehicles was manufactured).  Vehicles failing I/M tailpipe,
evaporative, or on-board diagnostics tests are required to be repaired
(up to a federally mandated maximum repair spending limit) and are then
retested to confirm the success of the performed repairs in passing the
same emissions test the vehicle had previously failed.  Enhanced I/M is
required for areas designated as significant air pollution problem areas
(i.e., areas not in attainment of federal ozone or carbon monoxide
National Ambient Air Quality Standards)  and also in densely populated
portions of the Clean Air Act-established Ozone Transport Region (OTR) (
regardless of air quality designation.  Enhanced I/M testing, as defined
by the CAA of 1990, employs more sophisticated testing methods to better
find high-emitters and have additional administrative oversight features
to better ensure that vehicles are properly identified and effectively
repaired.

In addition to tailpipe and evaporative emissions testing, the Clean Air
Act requires states to incorporate diagnostic checks of vehicle on-board
computers, for vehicles equipped with advanced on-board diagnostic
systems, referred to hereafter as OBDII or simply OBD.  Newly
manufactured light-duty cars and trucks were required to have OBDII
systems in place beginning in model year 1994.  However, the program was
phased in so it was not until the 1996 model year that all subject
vehicles were sold with fully operations OBDII systems.  Since
requirements for OBDII systems did not exist when EPA issued
requirements for I/M programs, incorporation of OBD testing into state
I/M programs was delayed beyond the date by when I/M programs under the
CAA of 1990 were to begin operation.

The CAA requires that OBDII system checks be performed on I/M-subject
vehicles equipped with these second generation OBDII systems.  The
concept of OBDII testing as part of an I/M program is straightforward.
Since engines in newer vehicles are largely electronically controlled,
with their operation overseen by a computerized control unit, the
operation of the engine and its supporting systems can be monitored by
the on-board computer using the proper software.  The vehicle(s OBDII
computer monitors the operation of critical systems and components for
malfunctions, and stores information related to any such problem in its
memory ( triggering a dashboard warning light, if necessary, to alert
the driver of a system problem.  Such OBD-monitored malfunctions may
impact air pollution emissions from the vehicle.  The Clean Air Act
incorporates checks of these advanced OBD systems as a basic element of
an I/M program.  Diagnostic information provided by these systems
provides for more accurate diagnosis of emission-related malfunctions
than can otherwise be obtained from tailpipe emissions testing or visual
inspection of the emissions system components.

When EPA adopted its I/M requirements rule (or I/M requirements rule) in
November of 1992, federal OBDII certification standards for new cars and
trucks hat not yet been developed.  EPA amended its I/M requirements
rule in August 1996 to establish testing standards for I/M-program based
checks of OBDII-equipped vehicles.  On May 4, 1998, and again on April
5, 2001, EPA again revised its I/M requirements rule to require OBD
checks to be performed as an element of operating I/M programs.  In
order to implement OBDII testing as part of its I/M program, a state
would typically need to amend its emission inspection regulations to
incorporate OBD testing and would then submit its revised regulation to
EPA as a formal SIP revision.

Revisions to EPA(s I/M program requirements rule were published in the
Federal Register, and are codified at 40 CFR Part 51, Subpart S.  These
requirements serve as the regulatory framework under which states
modified their I/M programs to meet the statutory requirements set forth
in sections 182 and 184 of Title 1of the Clean Air Act.

B.  Virginia’s Prior Approved Enhanced I/M Program and Related EPA SIP
Rulemakings

Virginia revised its I/M program regulations in the 1990s to meet the
enhanced I/M requirements of the CAA and EPA’s I/M requirements rule,
at 40 CFR Part 51.  The Commonwealth of Virginia submitted the its I/M
regulation, as adopted in 1997, (codified at 9-VAC 5-91, effective
January 24, 1997) to EPA, along with supporting materials, for
incorporation into Virginia’s State Implementation Plan (SIP).  EPA
published a final rulemaking action granting full approval to
Virginia’s enhanced program in the September 1, 1999 edition of the
Federal Register (64 FR 47670); hereafter referred to as EPA(s September
1999 SIP approval, or simply as the September 1999 SIP approval.
EPA’s 1999 approval was codified at 40 CFR (52.2420(c)(134), which was
later recodifed to a tabular format at 40 CFR 52.2420(c) that lists the
approved portions of Chapter 91 of 9 VAC 5.

For a more information regarding the Commonwealth(s prior approved
enhanced I/M SIP, please refer to the Background section of EPA(s
September 1999 final approval action (64 FR 47670).

II. Summary of the Commonwealth(s December 18, 2002, April 2, 2003, and
June 18, 2007 SIP Revisions

In order for Virginia to implement OBDII on-board diagnostic test
requirements as part of its Northern Virginia emissions inspection
program, the Commonwealth amended its vehicle emission inspection
regulations and submitted them to EPA as a revised I/M program SIP.
Virginia submitted a SIP revision on December 18, 2003 to incorporate
OBD (amongst other revisions) to the emissions inspection program
approved by EPA in September 1999.  On April 2, 2003, Virginia submitted
a SIP revision to make a technical clarification to the regulation
submitted as part of its December 18, 2003 SIP revision.

On June 18, 2007, Virginia revised submitted another I/M program SIP
revision.  This revision contained rule revisions published in the
Virginia Register of Regulations on May 30, 2005 (Volume 21, Issue 19).
The primary purpose of this rulemaking was to revise existing state
regulatory provisions affecting on-road testing of emissions from motor
vehicles as an element of the I/M program.  Some regulatory provisions
covered under the December 18, 2003 SIP revision have been revised again
as part of the June 2007 SIP revision, and therefore, the June 2007
version of the regulation is being given precedence in EPA’s review
and rulemaking action.

The counties and cities in Virginia affected by this SIP revision
include: Arlington, Fairfax, Loudon, Prince William, and Stafford
Counties and the cities of Alexandria, Fairfax, Falls Church, Manassas,
and Manassas Park.

A.  Virginia’s December 18, 2002 and April 2, 2003 SIP Revisions

Virginia published a final rule revising its I/M program regulation on
June 17, 2002 in the Virginia Register of Regulations (Volume 18, Issue
20).  Virginia’s proposed regulatory change was published October 8,
2001 edition of the Virginia Register of Regulations (Volume 18, Issue
2).   This regulation enacted numerous changes to the Northern Virginia
I/M program.

The significant changes to Virginia’s program regulation include:

Incorporation of on-board diagnostic testing for OBD-II compliant
vehicles, subjecting OBD-II equipped 1997 and newer diesel-powered
vehicles to the program for the first time;

Revision of program model year coverage to exempt vehicles 25-years old
and older at the time of testing (in lieu of the previous exemption of
1968 and older model vehicles;

Revision of acceleration-simulation mode (ASM) emission standards for
vehicles subject to that test, and removal of ASM test procedure
procedural screening requirements for increased flexibility;

Tightened two-speed idle emission test standards, to reflect advanced
technology and related lower emission levels of 1990 and newer vehicles;

Relaxation of roadside remote sensing standards, and greater flexibility
for VA DEQ in use of various pollutants as road side screening criteria;

Repeal of requirement for evaporative system purge testing;

Revision of reporting requirements for federal and private fleets, and
repeal of requirement that federal fleets remit a $2 per vehicle annual
fee for vehicles not registered with VA DMV.  Repeal of provisions for
federal facilities to comply with EPA requirements;

Modification of reporting requirements for fleet inspection stations, in
accordance with EPA requirements for reporting by fleets of emission
testing;

Revision of visible emissions standards, to include a standard for
diesel-powered vehicles now subject to OBD testing;

Elimination of deadlines for waiver limit increases that have already
passed;

Modification of regulation where necessary to align with software
specifications for emissions test procedures;

Repeal of requirements limiting warranty eligibility for certain
emissions short tests;

Modification of penalty schedule table for major violations to reflect
additional flexibility regarding test procedures; and

Revision of a number of definitions to reflect related regulatory
changes, and repeal others that are no longer needed to support the
Commonwealth’s regulations.

Of these changes, the most significant is the addition of on-board
diagnostic system testing as an element of the emission test performed
under this program, applicable to vehicles equipped with 1996-and-newer
OBDII diagnostics systems.  On-board diagnostic systems are comprised of
sensors, computer diagnostic programming, and a warning light to alert
the motorist of any OBD-monitored emissions problems.  An OBD emission
inspection consists of a scan of the OBD computer for stored fault
information and a check of the dashboard indicator light.  Failure of
the OBD portion of the test results in a failure requiring mandatory
repairs, even if other portions of the emission test are passed.

The other significant program change made by Virginia was a change in
program model year coverage.  Instead of exempting pre-1968 vehicles
from emission testing, as had been the case since the program’s
inception, Virginia’s regulation now exempts only vehicles 25 years
and older, on a rolling basis. This results in a slight decrease in the
number of tested vehicles, as each year another model year (i.e., the
oldest) is exempted from the program.  This results in a slight savings
in test fee, repair and other costs to motorists and a slight cost in
terms of lost fuel economy improvement associated with older, exempted
vehicles (those that would have failed) if they had been tested and
repaired.

Other minor revisions to Virginia’s I/M regulation were made by the
Commonwealth to conform to changes in Virginia law and to Federal
regulations, and to address operational corrections and to improve state
oversight and enforcement of the program.

In addition to the regulatory changes described above that are part of
Virginia’s December 18, 2002 SIP revision, Virginia also submitted a
SIP revision on April 2, 2003 to correct a technical error in their
regulation concerning emission inspector identification numbers.
Virginia published a final rule in the October 21, 2002 edition of the
Virginia Register of Regulations to adopt this regulatory change.

Due to the extensive nature of the revisions to the program resulting
from the December 2002 SIP revision, a more detailed description and
EPA’s analysis of those changes is described in further detail in
Section III of this TSD, entitled “EPA Review of Virginia’s Enhanced
I/M Program SIP Revisions”.

B. Virginia’s June 18, 2007 SIP Revision

Virginia’s June 18, 2007 SIP revision contains regulatory updates made
by the Commonwealth since the June 2002 version of the Commonwealth’s
regulation contained in the December 18, 2002 SIP revision.  The June
18, 2007 SIP revision revised provisions related to on-road testing of
vehicles (i.e., remote sensing) operating primarily in Northern Virginia
to ensure motorist compliance and to supplement state enforcement
activities.

Virginia revised its I/M program regulations (9 VAC Chapter 91) again in
a final rule published in the Virginia Register of Regulations on May
30, 2005 (Volume 21, Issue 19).  Virginia submitted this latest version
of its I/M regulation (9 VAC 5-91) as part of the June 18, 2007 SIP
revision submitted to EPA.  The submitted portions of this more recent
version of the Commonwealth’s I/M regulation supersede earlier
versions of those same portions of 9-VAC 5-91 submitted to EPA in the
December 18, 2002 SIP revision.  Where Virginia has submitted the same
regulatory provisions in separate SIP revisions, EPA is proposing to act
upon the later version of the regulation.

The Commonwealth’s May 2005 regulatory amendment makes a number of
changes to Virginia’s roadside testing program (e.g., remote sensing)
provisions of the regulation.  The remote sensing program is a roadside
test to ensure that vehicles primarily operated in the I/M program area
do not grossly exceed emissions limits set by the I/M program.  The
program serves both to identify high emitting vehicles subject to
regular I/M checks, and to monitor vehicles that are either not subject
to regular testing, vehicles which have been high emitters since their
last regular biennial emission inspection, and those vehicles which are
subject to I/M, but are noncompliant.  Roadside remote sensing
observations could require additional “off cycle” inspections of
motor vehicles that exceed established remote sensing standards.

The Commonwealth amended the regulation to reflect new remote sensing
emissions standards, and the criteria for conducting random, roadside
“off-cycle” testing of motor vehicle emissions, as well as protocols
for testing and procedure to notify owners of test results.

The Commonwealth’s regulatory changes relate primarily to:

1) Changes to regulatory definitions;

2) Changes in remote sensing applicability, relating to vehicles subject
to remote sensing;

3) Changes to remote sensing test procedures;

4) Changes to remote sensing test standards;

5) Protocols for determination of gross polluters and clean car
screening; and

6) Changes in enforcement and compliance procedures.

A summary of these changes made by Virginia under the May 2005 final
rule are detailed below:

Changes in Remote Sensing Applicability

Virginia amended its regulation to reflect, in order to comply with
changes to the Code of Virginia.  Model year coverage, with respect to
remote sensing under 9 VAC 5-91-180, was expanded to include vehicles of
model year 1968 and newer.  Previously, applicability for remote sensing
was limited to those “affected vehicles” subject to I/M testing
(i.e., 25 most recent model years).  The Commonwealth also revised their
definition of “operate primarily”, for purposes of remote sensing,
to include a vehicle observed by roadside remote sensing equipment at
least three times in a two-month period (with no less than 30 days
between the first and last readings). Vehicles exceeding the standards
twice in any 120-day period (as opposed to the previously required
90-day observation period requirement) will be determined by VA DEQ to
have violated the standards, and will require a confirmation test (ASM
or OBD test) at an emission inspection station.

Changes to Remote Sensing Test Procedures

Virginia has amended its exhaust emissions standards for its remote
sensing program.  Beginning July 1, 2005, motor vehicles determined to
exceed roadside remote sensing standards after two or more measurements
in any 120-day period, shall be considered to have violated emissions
standards and shall be subject to an off-cycle, confirmation test.  Any
vehicle exceeding the remote sensing standards a single time that is
also determined by the VA DEQ to have a “high emitter index” greater
than 75 will be subject to an off-cycle, confirmation test.

Vehicles subject to confirmation testing may be subject to the
applicable emissions test for their vehicle, and vehicles 1996 and newer
may be subject to exhaust testing, in addition to an OBD system test.  A
confirmation inspection ordered by VA DEQ due to an on-road test failure
that results in a failure will be a chargeable inspection, while a
passing confirmation test will not result in a test fee.

Changes to Remote Sensing Test Standards

Virginia has revised its remote sensing exhaust emission standards to
establish separate standards for light-duty gasoline vehicles (i.e.,
passenger cars), light-duty gasoline trucks, and heavy-duty gasoline
vehicles.  Additionally, Virginia has established standards that apply
in the case where two or more on-road, remote sensing measurements are
gathered for an applicable vehicle over a 120-day period.  Separate
standards apply in the case of a single on-road measurement, where a
vehicle is also determined by VA DEQ to have a “high emitter index”
of 75 or more.

Virginia has also established nitric oxide (NO) remote sensing
standards, in addition to standards for hydrocarbons (HC) and carbon
monoxide (CO).

All remote sensing measurements are to be measured based upon vehicle
specific power (VSP), which is a means of utilizing vehicle speed, drag
coefficient, tire rolling resistance and roadway grade to characterize
the load under which a vehicle is operating at the time a remote
measuring measurement is taken.  Only valid remote sensor measurements
with a VSP between 3 and 22 shall be used to determine if a vehicle
violates the remote sensing standards.

Finally, Virginia amended its 2-speed idle exhaust emissions test
standards to add standards for 1968-1974 model year vehicles.  These
vehicles were no longer subject to regular, biennial emissions testing
under Virginia’s June 2002 regulatory amendments, but are now affected
motor vehicles subject to roadside remote sensing tests, and , if
necessary, follow-up, two-speed idle confirmation testing.

Protocols for Determination of High Emitting Vehicles and Clean
Screening

Virginia has amended is protocols for determining whether a vehicle is a
gross polluter.  Virginia’s “high emitter index” is a means of
categorizing probable emission failure rates of engine families.  The
index is determined by calculating the historical emissions inspection
failure rate (by vehicle model year, make, model, and engine size) to
the historical emissions inspection failure rate of all the engine
families in that same group.  Failure rates are based on the most recent
full year of emissions inspection test data.  Vehicles with a high
emitter index of greater than 75 are deemed high emitters.

Beginning January 1, 2005, motor vehicles that exceed the Virginia’s
remote sensing emissions standards on two separate days in any 120-day
period shall be considered to have violated the emissions standards. In
addition, the department may use the high emitter index as a screening
requirement.  Beginning July 1, 2005, based on analysis of remote
sensing failure rates and confirmation test results, the department may
determine that an affected vehicle is a high emitter if the vehicle
exceeds remote sensing standards a single time and has a high emitter
index of greater than 75.

Beginning July 1, 2005, clean screening will be used by Virginia to
identify affected vehicles eligible for an exemption from their next
scheduled emissions test.  Up to five percent of the total vehicles
measured by on-road testing (i.e., remote sensing) during any 30-day
period may be identified as “clean screen vehicles”.   At the
discretion of VA DEQ, vehicles identified as such may receive a
“pass” for their next scheduled emissions test, without undergoing a
regular, biennial emissions inspection.

Financial Assistance Provisions

Virginia’s amended regulation establishes a financial assistance
program to subsidize repair costs of some vehicles determined to be in
violation of roadside remote sensing standards.  Qualified individuals
may receive up to fifty percent of the cost of emission-related repairs
or up to fifty percent of the waiver amount (after a co-payment of
$100).  To qualify, an individual must be the registered owner of the
vehicle (registered in the program area), have a household income less
than 133% of federal poverty guidelines, and the vehicle must have a
valid safety inspection.  Only individual vehicle owners are eligible
for assistance – commercial, non-profit, and government vehicles are
ineligible.

Remote sensing roadside testing has been expanded to include vehicles
previously not subject to remote sensing.  These affected vehicles
include those newer than model year 1968 (versus the previous coverage
of vehicles twenty-five model years old, or newer).

Changes to Enforcement and Compliance Procedures

Upon determination by VA DEQ that a roadside, remote sensing violation
occurred, motorists will be informed in writing by that department of
such failure.  Motor vehicle owners that receive a notice of violation
of roadside, remote sensing standards will be required to furnish proof
that their vehicle passed a confirmation test or received a waiver
within 30 days of a notice of violation of remote sensing standards.  At
that time, civil charges will be assessed (unless the vehicle is due for
its regularly scheduled biennial emissions test within 3 months of the
date of the measured violation of the remote sensing standard).

Civil charges assessed for failure to pass (or receive a waiver) from a
confirmation test are to be based upon the degree by which the vehicle
exceeds the remote sensing standards.  Violations up to 150% of the
applicable standard will result in a charge of no more than 50% of the
cost of a program waiver (i.e., $450, adjusted annually by the 1990
Consumer Price Index).  Violations over 150% of the applicable remote
sensing standard will result in a civil charge no more than 100% of a
program waiver.

Changes to Regulatory Definitions

Virginia revised several definitions in 9 VAC 5-91-120 in its May 30,
2005 regulatory amendment.  The definitions of the following terms were
revised: “affected motor vehicle”, “light duty truck (LDT)”,
“light duty truck (LDT1), “light duty truck (LDT2)”, “light duty
vehicle”, and “operated primarily”.

Definitions for the following terms were added to 9 VAC 5-91-120:
“confirmation test”, “heavy duty gasoline vehicle (HGDV)”,
“high emitter index (HEI)”, “light duty gasoline vehicle
(LDGV)”, “light duty gasoline truck (LDGT1)”, “light duty
gasoline truck (LDGT2)”, and “vehicle specific power (VSP).

III. EPA Review of Virginia(s Enhanced I/M SIP Revisions

EPA issued a rule to establish I/M requirements (which has been revised
on several occasions) to guide states in the adoption and submission of
I/M programs.  This rule is codified at 40 CFR Part 51, Subpart S
(((51.350-51.373 and Appendices to Subpart S, and is hereafter referred
to as EPA’s I/M rule, or simply the I/M rule.

This I/M rule guides EPA(s approvability review of state I/M program SIP
submissions. I have therefore ordered this technical support document in
the same format as that of the Federal I/M rule.  The format of the
Commonwealth’s regulation is set by state administrative procedure, so
EPA’s review of the regulation does not necessarily follow the order
in which the Commonwealth presented its SIP revisions (i.e., the order
of 9 VAC 5-91).

These SIP revisions by Virginia constitute relatively small changes to
Virginia’s overall emissions inspection program (9 VAC 5 Chapter 91),
which EPA approved as a SIP revision on September 1, 1999.  Therefore,
EPA treats this as an amendment to that approved SIP revision, and is
our review herein focuses only upon these sections of 9 VAC 5-91 that
have been revised under these latest SIP revisions.

_________

EPA’s Review of Virginia’s December 18, 2002, April 2, 2002, and
June 18, 2007 SIP Revisions For Compliance with:

40 CFR Part 51 Subpart S – Inspection Maintenance Program Requirements

( 51.350 Applicability

Not Applicable

Virginia has made no changes in terms of applicability of the Northern
Virginia enhanced I/M geographic program area.  The program continues to
apply in the following areas: the Counties of Arlington, Fairfax,
Loudon, Prince William, and Stafford and the Cities of Alexandria,
Fairfax, Falls Church, Manassas, and Manassas Park.  The
Commonwealth’s program continues to have no sunset date.

(51.351  Enhanced I/M Performance Standard

EPA’s I/M rule established a performance standard by which states
could model their program design, with states provided the flexibility
to vary their program design from that of EPA’s defined model program
if it can be demonstrated to match reductions in  emissions from the
performance standard.

The federal enhanced performance standard requires testing of 1968 and
newer light-duty cars and trucks an annual basis.  Test methods under
the performance standard range from idle testing of pre-1981 vehicles
and 2-speed idle testing of 1981-1985 vehicles, to transient testing of
1985 and newer vehicles and on-board diagnostic inspection of 1996 and
newer vehicles.   Evaporative system function checks and emission
control device visual inspections are also part of the federal
performance standard.

As mentioned above, a state may vary its program design as long as a
modeling demonstration shows that the state’s program meets the
federal performance standard.  In practice this entails a modeling
demonstration comparing the state’s program design against EPA’s
model program defined by the performance standard.  This demonstration
is performed for the pollutants volatile organic compounds (VOCs) and
nitrogen oxides (NOx), using EPA’s highway mobile emissions factor
model, MOBILE.

Model Year Coverage

Virginia has modified its program’s vehicle model year coverage by
amending the definitions of “affected motor vehicle” and “motor
vehicle, as defined in 9 VAC 5-91, in its June 2002 rule that was
submitted as part of the December 2002 SIP revision.  Vehicles less than
25 model years old from the present model year are now covered by this
definition, where previously it more broadly included 1968 and newer
model year vehicles.  This has the effect of the exempting the oldest
model year of vehicles from testing with each new year the program is in
effect (e.g., in calendar year 2008, vehicles older than 1984 would not
be subject to emissions testing).  Virginia did not submit a revised I/M
performance standard modeling test as part of its SIP revision, per the
requirements of 40 CFR 51.351(d), which meets the enhanced standard
described in 40 CFR 51.351(f).

Virginia again amended the definition of “affected motor vehicle” in
9 VAC 5-91 in its May 2005 regulatory revisions submitted with the June
2007 SIP revision.  The Commonwealth revised its regulation to subject
vehicles 1968 and newer to roadside testing using remote sensing, with a
requirement that vehicles failing those standards be subjected to
off-cycle emissions inspection tailpipe testing.

On-board Diagnostics Testing

As part of the December 2002 SIP revision, Virginia added provisions to
its regulation for conducting on-board diagnostic inspections for 1996
and newer model year gasoline and diesel-powered vehicles, replacing ASM
or idle tailpipe testing that previously applied to these vehicles.
Diesel vehicles were not previously tested, but are now subject to OBD
testing.  Virginia’s OBD inspection procedure is described in detail
at 9 VAC 5-91-420.  Virginia’s regulation required OBD testing to
begin on October 1, 2002 [October 1, 2004 for diesel powered vehicles],
however it provided the Director of VA DEQ discretion to delay
implementation pending availability of OBD test equipment.  Virginia
exercised that discretion and commenced mandatory OBD testing under its
regulations in November 2005.  The Commonwealth’s regulations also
allow DEQ director discretion in exempting vehicle models with know OBD
system or testing problems.

Virginia made minor revisions to definitions for “on-board diagnostic
system” and “on-board diagnostic vehicle” in 9 VAC 5-91-20, in
order to make these definitions applicable to diesel-powered vehicles
and to remove restrictions limiting OBD testing to light-duty vehicles.
OBD testing now applies to all “affected motor vehicles” subject to
Virginia’s emission inspection program.

Evaporative Pressure/Purge Testing

Virginia has repealed requirements in its I/M for evaporative system
purge testing, previously codified at 9 VAC 5-91-200.D, and its test
methods for purge testing, which were codified at 5-91-460.  This also
included repealing definitions for “evaporative systems purge test”
and “alternative evaporative systems purge test” from 9-VAC5-91-20.
Virginia no longer intends to implement evaporative system purge testing
as an element of its emission inspection procedure.

EPA issued policy memos on November 5, 1996 and December 23, 1996
regarding emissions credit claims from purge testing.  At that time,
many states had planned to implement purge testing.  EPA’s policy
memos stated that producing an effective purge test had been
problematic, but that EPA continued to study alternatives.  EPA’s
December 23, 1996 memo entitled “I/M Evaporative Emission Tests – An
Addendum” cautioned that states that removed purge testing from their
SIPs would be accorded no modeled benefits from purge testing.  Even if
purge testing was being implemented, EPA granted states 100% of purge
testing credit as long as purge testing remained in the SIP.  EPA’s
most recent emissions model, MOBILE6 affords no evaporative purge
testing benefits for purge testing in an I/M program, so removal of this
requirement from the SIP does not contribute to a reduction in emissions
benefits attributable to the emissions inspection program.

(51.352 Basic Performance Standard

Not Applicable

Virginia’s December 2002 and April 2003 SIP revisions relate only to
the Northern Virginia Enhanced Emissions Inspection Program, and
therefore Federal requirements applicable to basic I/M programs do not
apply to these SIP revisions.

(51.353 Network Type and Program Evaluation

Not Applicable

The emissions testing network and method of program evaluation have not
been revised as part of this SIP revision compared to those established
within the program SIP-approved by EPA on September 1, 1999 (64 FR
47670).

(51.354 Adequate Tools and Resources

Not Applicable

Virginia has not made changes to its emissions program rules that would
affect its resources or that would place additional burden upon
oversight of the program as part of the December 2002, April 2003, and
June 2007 SIP revisions.

(51.355 Test Frequency and Convenience

Not Applicable

Virginia has not made changes to its rules that affect the frequency of
emissions testing under its I/M program or motorist convenience as part
of the December 2002, April 2003, and June 2007 SIP revisions.

(51.356 Vehicle Coverage

Virginia has made several changes in its December 2002 SIP revision that
effect vehicle in terms of vehicle types and model years subject to the
program, and treatment of fleet vehicles and fleet inspection stations.

Model Year Coverage

Virginia has revised its emissions inspection rules as it applies to
vehicles model year subject to testing.  Under the June 2002 regulatory
revisions submitted as part of the December 2002 SIP, I/M program model
year coverage that had previously applied to 1968 and newer affected
motor vehicles was changed so that only vehicles less than 25 model
years old are subject to the emission inspection program.  The effect is
that with each new calendar year, one model year of vehicles (i.e., the
oldest) is dropped from Virginia’s program.

The increased number of exempted vehicles from this change in model year
coverage will result in a net increase in HC and CO emissions.  In its
October 2001 proposed I/M rule change, Virginia estimated HC would
increase by 0.55 tons per day in 2002 (or 201 tons per year).  This
equates to a loss of roughly 3.5% of the total HC benefits of the
program before the change.  The Commonwealth did not have a recent CO
inventory available, and could not estimate the impact on CO emissions
at that time.

It should be noted that Virginia again revises its regulation in May
2005 (which was submitted as part of the June 2007 SIP revision) in
order to subject 1968 and newer vehicles to remote sensing roadside
testing, and if necessary follow-up emission inspection tailpipe testing
at an inspection station.  However, this does not constitute inspection
testing in the conventional sense, and Virginia did not submit modeling
demonstrating emission benefits of the substitution of roadside testing
for regular, biennial tailpipe emission inspection of vehicles ranging
from 1968 and newer to those up to 25 model years old.  While there is
obviously some benefit for using remote sensing to identify high
emitting vehicles inside this model year range (and to subject them to
follow-up emissions testing, a performance standard demonstration has
not been submitted with Virginia’s SIP revisions.).

Fleet Inspection Stations

Virginia has revised its rules in June 2002 to make minor changes to
reporting requirements for fleet emission inspection stations (59 VAC
5-91-370).  This change is included as part of the December 2002 SIP
revision.  Virginia also added an additional category of inspection
stations that may be permitted by the Department to include “sensitive
mission vehicle emissions fleet inspection station” (5-91-260.A.3)

Federal Fleet Inspection Requirements

Virginia revised provisions in its June 2002 I/M regulation (at 9 VAC
5-91-370) submitted with the December 2002 SIP revision to address
federal fleet inspection requirements.  For the first time, Virginia’s
June 2002 regulation treats federal fleets the same as private fleets.
There is no longer a separate regulatory section setting requirements
specific to federal fleets.  Some additional reporting requirements for
non-federal fleets have also been added.

Diesel-powered and Non-Light Duty Powered Vehicle OBD Testing

Virginia amended its regulation in June 2002 to require on-board
diagnostic testing of OBDII-equipped diesel vehicles and light and
medium-duty “affected motor vehicles”.  At the same time, Virginia
amended its definition of “on-board diagnostic system test” and
“on-board diagnostic vehicle” in 9 VAC 5-91-20.  Where OBD testing
under the regulation previously applied to light duty affected vehicles
and light-duty trucks, the regulation now applies to all affected
vehicles.   This means that all affected vehicles (up to 10,000 pounds
gross vehicle weight rating) are now subject to OBD testing.

The definition of “on-board diagnostic vehicle” in 9 VAC 5-91-20 was
also revised by Virginia to remove prior limitations of that definition
to gasoline-powered affected motor vehicles.

These changes were submitted as part of the December 2002 SIP revision.

( 51.357 Test Procedures and Standards

On-Board Diagnostic System Testing Implementation / Revision of Testing
Provisions for Affected Gasoline and Diesel-powered OBDII-Equipped
Vehicles

Virginia amended its I/M rule in June 2002 to implement on-board
diagnostic testing as part of its regular inspection process, for I/M
affected vehicles equipped with second generation OBD systems.  OBD
testing is now being performed on vehicles 1996 and newer vehicles.

OBD testing will take the place of ASM or two-speed idle tailpipe
testing that was performed in past emission inspections (per the prior
EPA-approved SIP) on these OBD-II equipped vehicles.  Virginia amended 9
VAC 5-91-410 to allow the VA DEQ director to require exhaust emissions
testing of certain OBD tested vehicles (in addition to the OBD test) if
he determines that the expected fail rate of such testing would exceed
5%, and if additional reductions could be achieved through such testing.

Virginia also amended some of its OBD test procedure criteria in the
June 2002 regulatory revision, including testing procedures for
situations where not all OBD monitors are ready for testing.

Although the regulations state that OBD testing was to begin in January
2002, VA DEQ exercised director discretion to defer testing until
November 2005.  Virginia also requires OBD testing of 1997 and newer
affected diesel-fueled vehicles, using the same OBD testing equipment as
that used for gasoline-powered vehicles.  Diesel OBD testing was
required beginning October 1, 2004, per 9 VAC 5-91-420(G)(3).  However,
VA DEQ exercised director discretion to defer diesel OBD testing until
July 2007.

Although Virginia’s actual OBD implementation dates occurred beyond
the federal deadlines specified at 40 CFR 51.357, EPA believes that
Virginia’s implementation schedule reflects the soonest practicable
deadline by which VA DEQ could incorporate mandatory OBD testing into
the Virginia program.

Revision of ASM Exhaust Emissions Test Standards

As part of the June 2002 regulatory revisions included with the December
2002 SIP, Virginia amended 9 VAC 5-91-170 to allow VA DEQ the
flexibility to set its ASM test standards less stringent than EPA final
ASM standards.  The VA DEQ director may determine (after review of
emission inspection results and in consultation with EPA and vehicle
manufacturers), that less stringent, interim ASM standards shall remain
in place for selected vehicle models, model years, or weight classes.

EPA issued a policy memo on August 16, 2002 from Greg Green to EPA
Regional Air Division Directors that allowed states to implement either
EPA’s original final or revised final ASM test standards, or
cutpoints.  This policy was reiterated by EPA when it issued final ASM
Technical Guidance entitled, “Acceleration Simulation Mode Test
Procedures, Emission Standards, Quality Control Requirements, and
Equipment Specification” (EPA420-B-04-011, July 2004).  Virginia’s
provision allowing VA DEQ’s director discretion (under 9 VAC 5-91-170)
to allow use of interim ASM standards in lieu of required final ASM
standards does not comport with EPA guidance on this matter.

Modification of Two-Speed Idle Emissions Test Standards

As part of the June 2002 regulatory amendments submitted with the
December 2002 SIP revision, Virginia revised its emission test standards
for vehicles subject to two-speed idle testing (9 VAC 5-91-160).

Virginia eliminated two-speed idle standards for vehicles older than
1979 from 9 VAC 5-91-160, as these vehicles were exempted from testing
at the time the SIP was submitted in December 2002 under the revised
model year coverage that eliminated testing requirements for vehicles
over 25 model years old.

Virginia tightened standards for model year 1990 and later vehicles
subject to two-speed idle testing to reflect the advanced technology and
resilience of 1990 and newer vehicles.  VA DEQ determined by an analysis
of fail rates in the Virginia program and a review of other states data
that their prior standards were insufficiently stringent.  As a result,
1996 and later light-duty vehicles two-speed idle HC standards were
reduced from 220 ppm to 110 ppm.  Model Year 1990-1995 light-duty
standards were lowered from 220 ppm to 125 ppm of HC.  Standards for
vehicles between 8500-10000 lbs. GVWR were lowered from 220 ppm to 125
ppm HC for vehicles model year 1997 and newer, and from 220 ppm to 150
ppm HC for vehicles model year 1991-1996.  Carbon monoxide two-speed
idle standards were also tightened for all applicable vehicles from 1.2%
to 0.75% for 1996 and newer light-duty vehicles, and for 1997 and newer
heavy duty vehicles up to 10,000 lbs. GVWR.

These revised standards for 1990 and newer vehicles are more stringent
than federal short test standards listed in 40 CFR Part 51, Appendix C
to Subpart S.

Repeal of Evaporative System Test Procedure

Virginia’s June 2002 rule that is part of the December 2002 SIP
revision repeals evaporative system test procedures that were an element
of the prior approved SIP.  Virginia amended evaporative system pressure
testing requirement language in 9 VAC 5-91-200, so that such testing
will only be required provided such testing is mandated by EPA for
appropriate SIP credits, and then only at the discretion of the director
of the VA DEQ.  The repealed fuel inlet evaporative test was a physical
test to measure fuel evaporation between the fuel tank and the engine,
as measured at the underhood, evaporative emissions canister.

Virginia repealed 9 VAC 5-91-460 that formerly described the evaporative
test procedure, as well as any references to that procedure in the
remainder of the I/M regulation.  Virginia amended 9 VAC 5-91-450 to
amend their evaporative system test procedure to include only a gas cap
pressure test and a fuel inlet pressure decay test.

At the same time, Virginia repealed evaporative purge testing standards
from 9 VAC 5-91-200 and the evaporative purge test procedure from 9 VAC
5-91-460.  Virginia had never implemented the prior SIP-approved purge
test procedure.

EPA issued several policy memos on November 5, 1996, December 23, 1996,
and May 14, 1998. EPA has not taken further action to develop an
alternative test to the evaporative test being repealed by Virginia, and
since Virginia has never implemented such testing, EPA does not believe
repeal of these related requirements will result in lost emission
reductions to Virginia’s I/M program.

Modify Emissions Standards For Remote-Sensing Roadside Testing

Virginia amended its remote sensing standards for roadside testing (9
VAC 5-91-180) in its June 2002 regulatory revision, submitted as part of
the December 2002 SIP revision to EPA.  However, Virginia subsequently
revised these remote sensing standards in its May 2005 regulatory
revision that was submitted as part of the June 18, 2007 SIP revision.
EPA considers the remote sensing provisions in the June 2007 SIP
revision to have superseded any changes to 9 VAC 5-91-180 made as part
of the December 2002 SIP, and is thus our review does not address this
element of the 2002 SIP revision.

The amendments to the remote sensing standards from the June 2007 SIP
revision are described in detail in Section II.B of this Technical
Support Document.  Virginia is using remote sensing as a clean screening
tool and as a means to capture noncompliant vehicles and off-cycle gross
emitters (i.e., vehicles that have passed regular testing but that are
measured via remote sensing off-cycle from their regular test to be
gross emitters).  Virginia’s use of remote sensing exceeds federal
requirements for roadside testing under 40 CFR 51.371.  Although VA DEQ
maintains director’s discretion to revise or scale back its remote
sensing program, EPA does not object if the emissions goals of the
program continue to be met and if minimally, Virginia continues to
operate a roadside testing program at levels that meet the requirements
at 40 CFR 51.371for on-road testing.

Revision of ASM Test Procedure to Provide More Flexibility

Virginia revised its ASM test procedures as part of its June 2002 I/M
rule revision submitted with the December 2002 SIP.  These changes
eliminate or simplify certain procedural requirements applicable to
inspectors during emission inspection testing.  Virginia revised 9 VA
5-91-4330 to make these changes which include:

elimination of the requirement that the parking brake be set for front
wheel drive vehicles before the start of the ASM test;

repeal of default ASM horsepower settings for use when a load setting is
not automatically selected by the test analyzer;

VA DEQ discretion to eliminate second chance ASM testing in certain
situations, such as when a vehicle already failed a component check

Virginia believes these minor procedural changes do not affect the
outcome of the emissions test, and that the eliminated requirements were
burdensome to inspectors.

Visible Smoke Inspection For Diesel-Powered Vehicles

Virginia added provisions for visible exhaust standards for
diesel-powered vehicles as part of its regulatory revisions of June 2002
that were submitted as part of the December 2002 SIP revision. The
diesel opacity standard is set such that using Reference Method 9, no
diesel-powered vehicle shall emit greater than 20% opacity for longer
than 10 consecutive seconds after the engine is brought to operating
temperature.

EPA does not specify visible smoke emission standards as federal
requirement of an I/M program.  Virginia currently claims no emissions
benefits for reduction of particulate matter from this (or any) element
of its I/M program.  Therefore, EPA takes no position on this provision
of Virginia’s program.

( 51.358 Test Equipment

Not Applicable

Virginia has not made changes to its rules that alter the test equipment
requirements for its I/M program as part of the December 2002, April
2003, and June 2007 SIP revisions.  However, the Commonwealth did modify
its regulatory language in 9 VAC 5-91-440 to more closely reflect
software specifications for test procedures as part of its June 2002
regulatory changes submitted with the December 2002 SIP revision.

(51.359 Quality Control

Not Applicable

Virginia has not made changes to its rules that alter the quality
control requirements for its I/M program as part of the December 2002,
April 2003, and June 2007 SIP revisions.

(51.360 Waivers and Compliance via Diagnostic Inspection

Virginia made minor changes to its regulation (9 VAC 5-91-420) in June
2002 to eliminate provisions setting program waiver phase-in limits for
dates that had already passed by the time the regulation was amended
(and the SIP revision was submitted to EPA, in December 2002).

Virginia made minor changes to the wording of the waiver criteria in 9
VAC 5-91-240 in June 2002 in order to clarify their regulation.

The Commonwealth made no changes to the waiver limits or to the actual
criteria by which waivers are issued.  Virginia’s waiver limits
continue to comply with federal requirements at 40 CFR 51.360.

(51.361 Motorist Compliance Enforcement

Not Applicable

Virginia has not made changes to its rules that alter motorist
compliance enforcement for its I/M program as part of the December 2002,
April 2003, and June 2007 SIP revisions.

(51.362 Motorist Compliance Enforcement Oversight

Not Applicable

Virginia has not made changes to its rules that alter motorist
compliance enforcement oversight for its I/M program as part of the
December 2002, April 2003, and June 2007 SIP revisions.

Some of the remote sensing program changes made as part of the June 2007
SIP may be used by the Commonwealth to address motorist compliance
enforcement oversight, however, EPA is not considering the remote
sensing program for those purposes at this time.

(51.363 Quality Assurance

Not Applicable

Virginia has not made changes to its rules that alter the quality
assurance provisions of its I/M program as part of the December 2002,
April 2003, and June 2007 SIP revisions.

(51.364 Enforcement Against Contractors, Stations, and Inspectors

As part of the June 2002 revised rule submitted to EPA in the December
2002 SIP revision, Virginia revised its penalty schedule (at 9 VAC
5-91-620) for major violations.  The purpose in doing so was to reflect
the additional flexibility for test procedures that Virginia
incorporated in the regulatory language.  Major violations can now be
levied against any person or facility, whether or not they are
permitted, licensed, or certified under the I/M program.    Virginia
also made use of alcohol or illegal substances by inspectors performing
emission inspection grounds for revocation of a license, permit, or
certification.  The revised penalty schedule table can be found in June
2002 version of the regulation submitted with the December 2002 SIP
revision (at 9 VAC 5-91-620.B).

(51.365 Data Collection / (51.366 Data Analysis and Reporting

Not Applicable

Virginia has not made changes to its rules that alter the data
collection or data analysis and reporting provisions of its I/M program
as part of the December 2002, April 2003, and June 2007 SIP revisions.

(51.367 Inspector Training and Licensing or Certification

Not Applicable

Virginia has not made changes to its rules that alter the inspector
training and licensing provisions of its I/M program as part of the
December 2002, April 2003, and June 2007 SIP revisions.

(51.368 Public Information and Consumer Protection

Not Applicable

Virginia has not made changes to its rules that alter the public
information and consumer protection provisions of its I/M program as
part of the December 2002, April 2003, and June 2007 SIP revisions.

(51.369 Improving Repair Effectiveness

Not Applicable

Virginia has not made changes to its rules that alter the repair
effectiveness of its I/M program as part of the December 2002, April
2003, and June 2007 SIP revisions.

(51.370 Compliance with Recall Notices

Not Applicable

Virginia has not made changes to its rules that alter the data analysis
and reporting provisions of its I/M program as part of the December
2002, April 2003, and June 2007 SIP revisions.

(51.371 On-Road Testing

Virginia revised its on-road testing program to comply with state law in
both the December 2002 and again in the June 2007 SIP revisions.  EPA
considered the June 2007 SIP revision to supersede the changes made to
the same regulatory provisions of the December 2002 SIP revision.

The changes made by the Commonwealth to the remote sensing roadside
testing program are described in Section II.B of this Technical Support
Document, and will not be restated here.

These changes go beyond the minimum federal requirements established
under 40 CFR 51.371, and therefore are not relevant to this rulemaking.
Virginia granted discretion to the VA DEQ director to modify the remote
sensing program in light of information gathered during operation of
that program.  EPA deems the requirement to be met as long as Virginia
continues to meet requirements of 40 CFR 51.371 with regard to the
minimum number of roadside measurements and the type and quality of
those checks.

(51.372 State Implementation Plan Submissions

Not Applicable

Virginia has met the relevant SIP requirements for SIP submissions in
prior I/M submittals.  Virginia submitted this SIP revision to update
its program to reflect changes made to satisfy changing state law and
federal I/M requirements, as well as to incorporate revised OBD testing
implementation deadlines and changes to I/M test procedures and
standards.

(51.373 Implementation Deadlines

As part of the December 2002 SIP revision, Virginia submitted revised
rules to amend its OBD test procedure and its implementation deadlines
for mandatory OBD checks as part of its I/M program in the Northern
Virginia I/M program area.  Under 40 CFR (51.374 and 40 CFR 51.373(g),
OBD I/M testing was to be implemented as part of a state(s I/M program
by January 1, 2002 (or by January 2003 if a state requested and EPA
granted an extension), per 40 CFR 51.357(a)(12).

Virginia did not meet the federal implementation deadlines related to
OBD testing, but did implement OBD in as timely a manner as the VA DEQ
felt was practicable.  Mandatory OBD testing of subject gasoline
vehicles began in November 2005 and OBD testing of subject diesels began
in July 2007.  Virginia’s implementation of the I/M program, including
mandatory OBD testing and all other I/M provisions adopted at the state
level as of May 2005, is now complete.  Although Virginia missed the
federal deadline in implementing OBD testing, EPA considers testing to
have been instituted in the earliest manner practicable, and therefore
that the requirement under 40 CFR 51.373 has been satisfied.

III. Conclusion

Virginia(s amended I/M program regulation for the Northern Virginia I/M
program area meets, with a few minor exceptions, Federal requirements
for enhanced I/M programs established under sections 182 and 184 of the
Clean Air Act, and the federal I/M requirements rule at 40 CFR Part 51,
Subpart S.  The Commonwealth did not perform an enhanced I/M performance
standard demonstration to demonstrate that the revised program design
meets the performance standard requirements of 40 CFR 51.351, nor did
the Commonwealth demonstrate noninterference by the  revised I/M program
design with achievement of the ozone standard, per the requirements of
section 110(l) of the Clean Air Act.  EPA has not yet issued guidance on
what constitutes an appropriate 110(l) demonstration for areas areas
that were required to adopt enhanced I/M to address 1-hour ozone
standard.  EPA issued a policy memo on May 12, 2004 to address areas
that met the 1-hour ozone standard that have a maintenance plan with a
basic I/M program -- but that guidance is not relevant to Virginia’s
situation. EPA encouraged areas to retain all measures included in their
1-hour ozone SIPs to aid in development of future 8-hour SIPs.  It is
EPA’s understanding that Virginia 8-hour ozone SIPs reflect the I/M
program design that is the subject of this rulemaking.

IV.  Recommended EPA Rulemaking Action

I recommend we propose approval of Virginia’s December 18, 2002, April
2, 2003, and June 18, 2007 SIP revisions to modify the Commonwealth(s
prior EPA-approved I/M SIP.  This recommendation constitutes approval of
the Commonwealth(s revised OBD I/M testing procedures and standards.
This approval recommendation extends to updates to the I/M program to
reflect updated state law and federal I/M requirements, amended test
procedures and standards, revised model year coverage and applicability
of OBD to diesel vehicles,  a revised penalty schedule for inspection
stations and inspectors, and a revised on-road testing program utilizing
remote sensing.  Where the state regulatory provisions of the December
2002 SIP revision overlap with those of the June 2007 SIP revision, I
recommend we approve the June 2007 provisions as superseding those of
the December 2002 SIP.

Printed on 100% recycled/recyclable paper with 100% post-consumer fiber
and process chlorine free.

 PAGE  2


[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Notices]
[Pages 31348-31349]
[FR Doc No: 2012-12709]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. ER12-678-000; ER12-679-000]

Midwest Independent Transmission System Operator, Inc.;
Supplemental Notice Concerning Post-Technical Conference Comments

    As announced in the Notice of Technical Conference issued on April
4, 2012, and as required in the Commission's March 30, 2012 order in
these dockets,\1\ Commission staff convened a technical conference in
these proceedings on May 15, 2012 at the Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC, Room 3M-2A&B. In
light of the discussion therein, Commission staff posed questions to
the conference participants. Staff requests that parties who choose to
file post-technical conference take these questions into account, and
respond to them as appropriate, in the course of formulating their
written submissions. Post-conference comments need not be limited to
the subject matter of these questions, but may address any topic
discussed at the conference.
---------------------------------------------------------------------------

    \1\ Midwest Independent Transmission System Operator, Inc., 138
FERC ] 61,235 (2012).
---------------------------------------------------------------------------

Questions Directed to Midwest Independent Transmission System Operator,
Inc.

    1. Please explain in depth each step of the commitment process with
special

emphasis on when and how VLR commitments are made as part of the SCUC
process. In your response please explain why such VLR commitments are
made at that time in the process instead of waiting until after the
day-ahead market closes. Explain the difference between modeling VLR
for planning and VLR commitments.
    2. Please provide a simple example of how to calculate proxies for
voltage limits.
    3. Please explain the assertion that all low-voltage transmission
facilities are presumed to have significant market power and should be
designated for Voltage and Local Reliability (VLR) commitments. Please
supplement the record with additional materials as appropriate.
    4. With regard to your written answer to pre-conference question 3,
it appears that some units were not economically dispatched in hours
when they had zero unit headroom. Why? Is it possible to have EcoMax
equal EcoMin?
    5. Please provide a numerical example to illustrate how you perform
the calculations detailed in Tab B of your pre-conference comments.
    6. Please explain why the word ``or'' that previously conjoined
bullets (a) through (c) in proposed tariff section 64.1.3.a.i has been
changed to ``and.''

Questions Directed to Potomac Economics, Ltd.

    7. Your exhibit refers to units with incremental energy offer
prices at half their reference level, as MISO proposes to mitigate
through proposed Tariff Section 64.1.3.a.i(a). How could a market
participant benefit by offering in this way?
    8. Please explain your assertions that market power mitigation is
necessary for any generation unit on a line rated less than 100 kV, and
that constraints on facilities rated less than 100 kV are unlike
constraints on facilities rated above 100 kV. Why are all low-voltage
transmission facilities presumed to be locations for the exercise of
significant market power? Please supplement the record with additional
materials as appropriate.
    9. With regard to the slide you presented from the 2010 State of
the Market Report, please explain why reference levels have been
rising.
    10. Please explain why the word ``or'' that previously conjoined
bullets (a) through (c) in proposed tariff section 64.1.3.a.i has been
changed to ``and.''

Questions Directed to All Conference Participants

    11. In light of the discussion at the conference, are changes to
the definition of Voltage and Local Reliability Commitment (proposed
tariff section 1.697a) necessary, and if so, what should those changes
be?
    12. There was discussion at the conference of whether it is
possible to build a voltage component into locational marginal prices
(LMP), and dispatching units for VLR via the Security-Constrained
Economic Dispatch (SCUC). Please discuss the competing concerns of
accurately constructing locational marginal prices and accurately
allocating costs. For example, if it was possible to dispatch VLR units
through the SCUC, could this be done on a purely economic basis? What
would be the effect on Revenue Sufficiency Guarantee cost incurrence?
    13. Conference participants discussed two competing methodologies
to address cost causation for resolving voltage limits. The first
methodology was allowing the market to resolve such voltage limits by
sending a price signal to behind-the-meter generation. The second
method was MISO's methodology of uplifting the cost of VLR commitments
to local loads.
    a. Please explain the advantages and disadvantages of each
methodology and explain how a finding of justness and reasonableness
could be made for each methodology.
    b. Please explain how to take such behind-the-meter generation into
account in system models and send price signals.
    c. Is it possible to provide incentives for behind-the-meter
generation to respond to market forces in such a way as to address
voltage issues, and if so, what is the best way to achieve this?
    Parties wishing to file comments on the matters discussed at the
technical conference, and wishing to reply to comments filed by others,
should do so on the following schedule:
    Comments: Due on or before June 5, 2012.
    Reply comments: Due on or before June 19, 2012.

    Dated: May 18, 2012.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2012-12709 Filed 5-24-12; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 86, Number 61 (Thursday, April 1, 2021)]
[Notices]
[Pages 17223-17226]
[FR Doc No: 2021-06673]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91420; File No. SR-ISE-2021-04]

Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend ISE's
Pricing Schedule at Options 7, Section 9, Part C To Reduce the Options
Regulatory Fee

March 26, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 16, 2021, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed with
the Securities and Exchange Commission (``SEC'' or ``Commission'') the
proposed rule change as described in Items I and II, below, which Items
have been prepared by the Exchange. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend ISE's Pricing Schedule at Options 7,
Section 9, Part C to reduce the Options Regulatory Fee or ``ORF''.
    While the changes proposed herein are effective upon filing, the
Exchange has designated the amendments become operative on April 1,
2021.
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/ise/rules, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Currently, ISE assesses an ORF of $0.0020 per contract side as
specified in ISE's Pricing Schedule at Options 7, Section 9, Part C.
The Exchange proposes to reduce the ORF from $0.0020 per contract side
to $0.0018 per contract side as of April 1, 2021, in order to help
ensure that revenue collected from the ORF, in combination with other
regulatory fees and fines, does not exceed the Exchange's total
regulatory costs.
Collection of ORF
    Currently, ISE assesses its ORF for each customer option
transaction that is either: (1) Executed by a member on ISE; or (2)
cleared by an ISE member at The Options Clearing Corporation (``OCC'')
in the customer range,\3\ even if the transaction was executed by a
non-member of ISE, regardless of the exchange on which the transaction
occurs.\4\ If the OCC clearing member is an ISE member, ORF is assessed
and collected on all cleared customer contracts (after adjustment for
CMTA \5\); and (2) if the OCC clearing member is not an ISE member, ORF
is collected only on the cleared customer contracts executed at ISE,
taking into account any CMTA instructions which may result in
collecting the ORF from a non-member.\6\
---------------------------------------------------------------------------

    \3\ Participants must record the appropriate account origin code
on all orders at the time of entry in order. The Exchange represents
that it has surveillances in place to verify that members mark
orders with the correct account origin code.
    \4\ The Exchange uses reports from OCC when assessing and
collecting the ORF.
    \5\ CMTA or Clearing Member Trade Assignment is a form of
``give-up'' whereby the position will be assigned to a specific
clearing firm at OCC.
    \6\ By way of example, if Broker A, an ISE member, routes a
customer order to CBOE and the transaction executes on CBOE and
clears in Broker A's OCC Clearing account, ORF will be collected by
ISE from Broker A's clearing account at OCC via direct debit. While
this transaction was executed on a market other than ISE, it was
cleared by an ISE member in the member's OCC clearing account in the
customer range, therefore there is a regulatory nexus between ISE
and the transaction. If Broker A was not an ISE member, then no ORF
should be assessed and collected because there is no nexus; the
transaction did not execute on ISE nor was it cleared by an ISE
member.
---------------------------------------------------------------------------

    In the case where a member both executes a transaction and clears
the transaction, the ORF is assessed to and collected from that member.
In the case where a member executes a transaction and a different
member clears the transaction, the ORF is assessed to and collected
from the member who clears the transaction and not the member who
executes the transaction. In the case where a non-member executes a
transaction at an away market and a member clears the transaction, the
ORF is assessed to and collected from the member who clears the
transaction. In the case where a member executes a transaction on ISE
and a non-member clears the transaction, the ORF is assessed to the
member that executed the transaction on ISE and collected from the non-
member who cleared the transaction. In the case where a member executes
a transaction at an away market and a non-member clears the
transaction, the ORF is not assessed to the member who executed the
transaction or collected from the non-member who cleared the
transaction because the Exchange does not have access to the data to
make absolutely certain that ORF should apply. Further, the data does
not allow the Exchange to identify the member executing the trade at an
away market.
ORF Revenue and Monitoring of ORF
    The Exchange monitors the amount of revenue collected from the ORF
to ensure that it, in combination with other regulatory fees and fines,
does not exceed regulatory costs. In determining whether an expense is
considered a regulatory cost, the Exchange reviews all costs and makes
determinations if there is a nexus between the expense and a regulatory
function. The Exchange notes that fines collected by the Exchange in
connection with a disciplinary matter offset ORF.
    Revenue generated from ORF, when combined with all of the
Exchange's other regulatory fees and fines, is designed to recover a
material portion of the regulatory costs to the Exchange of the
supervision and regulation of member customer options business
including performing routine surveillances, investigations,
examinations, financial monitoring, and policy, rulemaking,
interpretive, and enforcement activities. Regulatory costs include
direct regulatory expenses and certain indirect expenses in support of
the regulatory function. The direct expenses include in-house and third
party service provider costs to support the day to day regulatory work
such as surveillances, investigations and examinations. The indirect
expenses

include support from such areas as Office of the General Counsel,
technology, and internal audit. Indirect expenses are estimated to be
approximately 42% of the total regulatory costs for 2021. Thus, direct
expenses are estimated to be approximately 58% of total regulatory
costs for 2021.
    The ORF is designed to recover a material portion of the costs to
the Exchange of the supervision and regulation of its members,
including performing routine surveillances, investigations,
examinations, financial monitoring, and policy, rulemaking,
interpretive, and enforcement activities.
Proposal
    Based on the Exchange's most recent review, the Exchange is
proposing to reduce the amount of ORF that will be collected by the
Exchange from $0.0020 per contract side to $0.0018 per contract side.
The Exchange issued an Options Trader Alert on February 8, 2021
indicating the proposed rate change for April 1, 2021.\7\
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    \7\ See Options Trader Alert 2021-9.
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    The proposed decrease is based on recent options volumes which
included an increase in retail investors. With respect to options
volume, the Exchange experienced a significant increase particularly in
the fourth quarter of 2020. For example, total options contract volume
in November 2020 was 71% higher than the total options contract volume
in November 2019.\8\ Below is industry data from OCC \9\ which
illustrates the significant increase in volume during the fourth
quarter of 2020.
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    \8\ See data from OCC at: https://www.businesswire.com/news/home/20201202005584/en/OCC-November-2020-Total-Volume-Up-71-Percent-From-a-Year-Ago.
    \9\ See data from OCC at: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Volume-by-Account-Type.

----------------------------------------------------------------------------------------------------------------
                                                      October        November        December         Q4 2020
----------------------------------------------------------------------------------------------------------------
Total...........................................     633,365,184     673,660,858     753,568,354   2,060,594,396
Customer........................................     587,707,301     630,297,252     708,037,956   1,926,042,509
Total ADV.......................................   28,789,326.55   33,683,042.90   34,253,107.00   32,196,787.44
Customer ADV....................................   26,713,968.23   31,514,862.60   32,183,543.45   30,094,414.20
----------------------------------------------------------------------------------------------------------------

    With respect to customer options volume across the industry, total
customer options contract average daily volume in December 2020 was
88.6% higher than total customer average daily volume in December
2019.\10\
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    \10\ See data from OCC at: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Volume-by-Account-Type.
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    There can be no assurance that the Exchange's final costs for 2021
will not differ materially from these expectations and prior practice,
nor can the Exchange predict with certainty whether options volume will
remain at the current level going forward. The Exchange notes however,
that when combined with regulatory fees and fines, the revenue being
generated utilizing the current ORF rate results in revenue that is
running in excess of the Exchange's estimated regulatory costs for the
year.\11\ Particularly, as noted above, the options market has seen a
substantial increase in volume in 2020, due in large part to the
extreme volatility in the marketplace as a result of the COVID-19
pandemic. This unprecedented spike in volatility resulted in
significantly higher volume than was originally projected by the
Exchange (thereby resulting in substantially higher ORF revenue than
projected). The Exchange therefore proposes to decrease the ORF in
order to ensure it does not exceed its regulatory costs for the year.
Particularly, the Exchange believes that decreasing the ORF when
combined with all of the Exchange's other regulatory fees and fines,
would allow the Exchange to continue covering a material portion of its
regulatory costs, while lessening the potential for generating excess
revenue that may otherwise occur using the current rate.\12\
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    \11\ The Exchange notes that notwithstanding the excess ORF
revenue collected to date, it has not used such revenue for non-
regulatory purposes.
    \12\ The Exchange notes that its regulatory responsibilities
with respect to member compliance with options sales practice rules
have largely been allocated to FINRA under a 17d-2 agreement. The
ORF is not designed to cover the cost of that options sales practice
regulation.
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    The Exchange will continue to monitor the amount of revenue
collected from the ORF to ensure that it, in combination with its other
regulatory fees and fines, does not exceed regulatory costs. If the
Exchange determines regulatory revenues exceed regulatory costs, the
Exchange will adjust the ORF by submitting a fee change filing to the
Commission and notifying \13\ its members via an Options Trader
Alert.\14\
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    \13\ The Exchange will provide members with such notice at least
30 calendar days prior to the effective date of the change.
    \14\ The Exchange notes that in connection with this proposal,
it provided the Commission confidential details regarding the
Exchange's projected regulatory revenue, including projected revenue
from ORF, along with a projected regulatory expenses.
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\15\ Specifically, the
Exchange believes the proposed rule change is consistent with Section
6(b)(4) of the Act,\16\ which provides that Exchange rules may provide
for the equitable allocation of reasonable dues, fees, and other
charges among its members, and other persons using its facilities.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \17\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(4).
    \17\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes the proposed fee change is reasonable because
customer transactions will be subject to a lower ORF fee than the
current rate. Moreover, the proposed reduction is necessary in order
for the Exchange to not collect revenue in excess of its anticipated
regulatory costs, in combination with other regulatory fees and fines,
which is consistent with the Exchange's practices.
    The Exchange had designed the ORF to generate revenues that would
be less than the amount of revenue collected from the ORF of the
Exchange's regulatory costs to ensure that it, in combination with its
other regulatory fees and fines, does not exceed regulatory costs,
which is consistent with the view of the Commission that regulatory
fees be used for regulatory purposes and not to support the Exchange's
business operations. As discussed above, however, after review of its
regulatory costs and regulatory revenues, which includes revenues from
ORF and other regulatory fees and fines, the Exchange determined that
absent a

reduction in ORF, it may be collecting revenue in excess of its
regulatory costs. Indeed, the Exchange notes that when taking into
account the recent options volume, which included an increase in
customer options transactions, it estimates the ORF will generate
revenues that may cover more than the approximated Exchange's projected
regulatory costs. Moreover, when coupled with the Exchange's other
regulatory fees and revenues, the Exchange estimates ORF to generate
over 100% of the Exchange's projected regulatory costs. As such, the
Exchange believes it's reasonable and appropriate to decrease the ORF
amount from $0.0020 to $0.0018 per contract side.
    The Exchange also believes the proposed fee change is equitable and
not unfairly discriminatory in that it is charged to all members on all
their transactions that clear in the customer range at the OCC.\18\ The
Exchange believes the ORF ensures fairness by assessing higher fees to
those members that require more Exchange regulatory services based on
the amount of customer options business they conduct. Regulating
customer trading activity is much more labor intensive and requires
greater expenditure of human and technical resources than regulating
non-customer trading activity, which tends to be more automated and
less labor-intensive. For example, there are costs associated with main
office and branch office examinations (e.g., staff expenses), as well
as investigations into customer complaints and the terminations of
registered persons. As a result, the costs associated with
administering the customer component of the Exchange's overall
regulatory program are materially higher than the costs associated with
administering the non-customer component (e.g., member proprietary
transactions) of its regulatory program. Moreover, the Exchange notes
that it has broad regulatory responsibilities with respect to
activities of its members, irrespective of where their transactions
take place. Many of the Exchange's surveillance programs for customer
trading activity may require the Exchange to look at activity across
all markets, such as reviews related to position limit violations and
manipulation. Indeed, the Exchange cannot effectively review for such
conduct without looking at and evaluating activity regardless of where
it transpires. In addition to its own surveillance programs, the
Exchange also works with other SROs and exchanges on intermarket
surveillance related issues. Through its participation in the
Intermarket Surveillance Group (``ISG'') \19\ the Exchange shares
information and coordinates inquiries and investigations with other
exchanges designed to address potential intermarket manipulation and
trading abuses. Accordingly, there is a strong nexus between the ORF
and the Exchange's regulatory activities with respect to customer
trading activity of its members.
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    \18\ If the OCC clearing member is an ISE member, ORF is
assessed and collected on all cleared customer contracts (after
adjustment for CMTA); and (2) if the OCC clearing member is not an
ISE member, ORF is collected only on the cleared customer contracts
executed at ISE, taking into account any CMTA instructions which may
result in collecting the ORF from a non-member.
    \19\ ISG is an industry organization formed in 1983 to
coordinate intermarket surveillance among the SROs by cooperatively
sharing regulatory information pursuant to a written agreement
between the parties. The goal of the ISG's information sharing is to
coordinate regulatory efforts to address potential intermarket
trading abuses and manipulations.
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. This proposal does not create
an unnecessary or inappropriate intra-market burden on competition
because the ORF applies to all customer activity, thereby raising
regulatory revenue to offset regulatory expenses. It also supplements
the regulatory revenue derived from non-customer activity. The Exchange
notes, however, the proposed change is not designed to address any
competitive issues. Indeed, this proposal does not create an
unnecessary or inappropriate inter-market burden on competition because
it is a regulatory fee that supports regulation in furtherance of the
purposes of the Act. The Exchange is obligated to ensure that the
amount of regulatory revenue collected from the ORF, in combination
with its other regulatory fees and fines, does not exceed regulatory
costs.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \20\ of the Act and subparagraph (f)(2) of Rule
19b-4 \21\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(3)(A).
    \21\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \22\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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    \22\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File No. SR-ISE-2021-04 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File No. SR-ISE-2021-04. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml.)
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE,

Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change. Persons submitting
comments are cautioned that we do not redact or edit personal
identifying information from comment submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File No. SR-ISE-2021-04, and should be
submitted on or before April 22, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-06673 Filed 3-31-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 87, Number 194 (Friday, October 7, 2022)]
[Notices]
[Page 61014]
[FR Doc No: 2022-21908]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

[FRL-10241-01-OMS]

Good Neighbor Environmental Board

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of meeting.

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SUMMARY: Under the Federal Advisory Committee Act, the Environmental
Protection Agency (EPA) gives notice of a public meeting of the Good
Neighbor Environmental Board (GNEB or Board). The purpose of this
meeting is to discuss and approve the integrated text of the GNEB's
advice letter to the President and Congress, focusing on water and
wastewater infrastructure issues and challenges along the U.S.-Mexico
border region.

DATES: November 7, 2022, from 2:00 p.m.-6:00 p.m. (EST). A copy of the
agenda will be posted at www.epa.gov/faca/gneb.
    The meeting will be conducted virtually and is open to the public
with limited access available on a first-come, first-served basis.
Members of the public wishing to participate in the video/
teleconference, should contact Eugene Green at [email protected] by
October 31st. Requests to make oral comments or submit written public
comments to the Board, should also be directed to Eugene Green at least
five business days prior to the video/teleconference. Requests for
accessibility and/or accommodations for individuals with disabilities
should be directed to Eugene Green at the email address or phone number
listed above. To ensure adequate time for processing, please make
requests for accommodations at least 10 days prior to the video/
teleconference.

SUPPLEMENTARY INFORMATION: The GNEB is an independent federal advisory
committee. Its mission is to advise the President and Congress of the
United States on good neighbor practices along the U.S. border with
Mexico. Its recommendations are focused on environmental infrastructure
needs within the U.S. states contiguous to Mexico. The Board is a
federal advisory committee chartered under the Federal Advisory
Committee Act, Public Law 92-463.

FOR FURTHER INFORMATION CONTACT: Eugene Green in the Federal Advisory
Committee Division in the Office of Mission Support (1601M),
Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; email address:
[email protected].

    Date: September 29, 2022.
Eugene Green,
Program Analyst.
[FR Doc. 2022-21908 Filed 10-6-22; 8:45 am]
BILLING CODE 6560-50-P