MTV-19-11-00002-A Approval of Applications for Inspection Station License
7/13/11 N.Y. St. Reg. MTV-19-11-00002-A
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 28
July 13, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF MOTOR VEHICLES
NOTICE OF ADOPTION
I.D No. MTV-19-11-00002-A
Filing No. 590
Filing Date. Jun. 29, 2011
Effective Date. Jul. 13, 2011
Approval of Applications for Inspection Station License
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 79 of Title 15 NYCRR.
Statutory authority:
Vehicle and Traffic Law, sections 215(a), 301(a), (d)(1), 302(a), (e), 303(a)(1) and (d)(1)
Subject:
Approval of applications for inspection station license.
Purpose:
Regulates the approval process relating to inspection stations in New York State.
Text or summary was published
in the May 11, 2011 issue of the Register, I.D. No. MTV-19-11-00002-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Monica J Staats, NYS Department of Motor Vehicles, Legal Bureau, Room 526, 6 Empire State Plaza, Albany, NY 12228, (518) 474-0871, email: monica.staats@dmv.ny.gov
Assessment of Public Comment
On May 10, 2011, the Department of Motor Vehicles notified the trade associations listed below that the regulation was being formally published in the New York State Register. On May 23, 2011, the Department of Motor Vehicles held a briefing session to provide any needed clarifications so that these parties could formally comment. This session was attended by some of these associations.
New York State Automobile Dealers Association
Greater New York Automobile Dealers Association
Eastern New York Coalition of Automotive Retailers
Syracuse Automobile Dealers Association
Rochester Automobile Dealers Association
Niagara Frontier Automobile Dealers Association
American Automobile Association
New York State Association of Service Stations & Repair Shops
Service Station Dealers of Greater New York
Service Station Operators of Southern New York
Long Island Gasoline Retailers Association
Service Station & Repair Shop Operators of Upstate New York
The Department has received written comments from the New York State Association of Service Stations & Repair Shops, Inc. (NYSASSRS), the Greater New York Automobile Dealers Association (GNYADA), and the American Automobile Association (AAA)
Comment: NYSASSRS comments that they "agree to the limitation of stations per county...", but since the proposed 79.7(f) does not define the terms "materially and substantially," such terms should either be deleted or better explained.
Response: The Department appreciates NYSASSRS' endorsement of the limitation of stations per county.
The Department understands NYSASSRS' concern about the phrase "materially and substantially." This phrase gives the Department the needed flexibility to revise the criteria to establish the cap on the number of inspection stations in a given county. It does not relate to criteria the Department would use in relation to a specific application (original, renewal or amendment) for a license.
Comment: NYSASSRS comments that there is a contradiction between 79.7(f) that allows the Commissioner to refuse to approve an application for a license or a license amendment and 79.7(f)(4) which provides that the Commissioner will accept an application for review if, "a licensee submits an amendment application for a change of location, and the change of location is within the same county, or within five (5) miles of the current location."
Response: There is no contradiction between these two provisions in the proposed rule. Section 79.7(f)(4) contains an exception to 79.7(f). If an existing licensee wants to move an existing business, the amendment would not be accepted for review if the cap for the destination county had been reached. However, under section 79.7(4), if the new location is in the current county or within five miles of the current location, the existing licensee could move its business. Therefore, the amendment application would be accepted for review if the new location is in the same county (regardless of the cap). If business were moving five miles and the location were in a different county, the amendment application would be accepted for review (regardless of the cap).
Comment: NYSASSRS objects to the language in 79.7(3) that a party shall be deemed in good standing if, "the facility has no hearings or appeals pending before the Department; and the facility has no litigation pending in which the Department is a named party." NYSASSRS states that it would be unfair, for example, to penalize a licensee who is suing the Department regarding an inspection fee increase.
Response: The Department recognizes NYSASSRS' concern. This language, however, provides a necessary public protection tool. As noted in the Regulatory Impact Statement, the Department has had a continuing problem protecting the public from the inspection station "revolving door." All too often, as the Department begins an administrative action, a business will simultaneously begin the process of selling/transferring the business to another individual to circumvent enforcement.
The language regarding litigation refers to matters related to the Department's enforcement action against the business due to violations of the Vehicle and Traffic Law and/or the Commissioner's regulation. It would not pertain to litigation regarding the inspection fee.
Comment: NYSASSRS requests that the Department publicize the number of inspections stations allowed in each county. In addition, an applicant for a license should be notified of its position on the "waiting list."
Response: 79.7(f) provides that, "The Department shall post on its public website a summary of its findings regarding the number of public inspection stations that shall be permitted in each county." The number of stations permitted in each county will be published on the Department website when the regulation is adopted and updated annually thereafter. In addition, the Department shall notify each applicant in writing of its position on the waiting list when the Department responds to an application.
Comment: NYSASSRS comments that an applicant for a license should be able to challenge the Department's "denial" of a license via an administrative hearing.
Response: An applicant for a license may pursue any remedy afforded by the Vehicle and Traffic Law and the Civil Practice Law and Rules.
Comment: NYSASSRS expresses concern about the "termination of the current OBDII emissions inspection program."
Response: The OBDII emissions inspection program will not be affected by this regulation. Further, the OBDII program is not being terminated. The Department's contract with SGS Testcom, the vendor that provides OBDII emissions equipment to inspection stations, is scheduled to terminate on November 30, 2011, but it may be extended until November 30, 2013 via a contract amendment. When the Department begins the process to contract with a new vendor, the Department will conduct outreach to the trade associations and the industry about this matter.
Comment: AAA, a not-for-profit organization, maintains that the proposal is anti-competitive and will be detrimental to its 2.7 million New York members. AAA explains that its services are "intended to enhance every aspect of vehicle ownership by providing members with reliable solutions to their automotive needs." AAA states that its members deserve high quality, affordable repairs. AAA suggests that if DMV maintains the cap, it should grant an exemption for not-for -profit organizations.
Response: The Department appreciates AAA's concern about this proposed rule, particularly that it is "anti-competitive." The Department maintains that this proposal represents a fair balance of the needs of the industry versus the Department's need to comply with federal law.
The Department is constrained by the mandates imposed by the federal Clean Air Act and its accompanying regulations. As explained in the Regulatory Impact Statement, the Department is obligated to perform three audits of each inspection station annually in the New York Metropolitan Area and 1.5 audits of each inspection station upstate. Due to attrition, early retirements and workforce reductions, the Department has insufficient staff to perform the number of required audits. A cap on the number of inspection stations is the only reasonable means to control the growth of inspection stations so that the Department is able to substantially comply with federal law and, consequently, minimize the risk of losing federal highway funding and/or sanctions affecting New York State businesses.
The Department declines to exempt not-for-profits from the cap. This would only open the door to other requests for exemptions, which the Department cannot grant if it hopes to comply with its audit obligations.
Comment: AAA comments that the regulation limits "consumer access to high quality automotive repair services."
Response: This regulation will have no affect on the public's ability to obtain high quality repairs. This proposal does not limit the number of repair shops or impose any new requirements on existing repair shops.
Comment: GNYADA comments that the association "supports that part of the proposed regulations that provides an exemption for registered new motor vehicle dealers from the proposed "cap" on new inspections stations."
Response: The Department appreciates GNYADA's support of this provision of the proposed regulation.
Comment: GNYADA comments that the advisory scan required by the regulation is "essentially the equivalent of full-blown emissions inspections for which dealers are normally compensated at $27 per inspection in the New York Metropolitan Area (NYMA) region."
Response: The Department disagrees that the advisory scan is tantamount to an emissions inspection. Unlike the emissions inspection, the advisory scan can be completed two different ways-in conjunction with the already mandated safety inspection or as a standalone function. This will provide flexibility to the dealer community to implement in the most efficient way.
GNYADA is correct that $27 is the fee for an emissions inspection in the NYMA. However, this fee cannot logically be used for analysis purposes. The fee for the very same emissions inspection upstate is $11. The difference in fees is due to the fact that until January 1, 2011, NYMA inspection facilities were required to acquire and maintain NYTEST tailpipe inspection equipment. Therefore, there has been a significant decrease in the cost of conducting an emissions inspection in the NYMA since the demise of the NYTEST program.
In addition, the advisory scan procedure is not the same as a full emissions inspection procedure. Both procedures require that vehicle information be entered into the NYVIP CVIS (either by using the keyboard or scanning the VIN plate) and that the OBD system be scanned. However, the full OBD emission inspection has requirements far beyond the advisory scan. During a full OBD emissions inspection, a Certified Inspector is required to manually check the following components to make sure they have not removed, disconnected, or rendered inoperable as provided for in regulation. These are not required as part of the advisory scan:
i. Gas cap
ii. Catalytic Converter (CAT)
iii. Exhaust Gas Recirculation valve (EGR)
iv. Positive Crankcase Ventilation system (PCV)
v. Air Injection System (AIS)
vi. Evaporative Emissions Control (EVAP)
vii. Fuel Inlet Restrictor (FIR)
viii. Thermostatic Air Cleaner (TAC)
ix. Malfunction Indicator Lamp (MIL) function
Comment: GNYADA comments that, "individual dealers will, in fact, incur very substantial costs in performing uncompensated advisory scans." GNYADA then lists various items, which are addressed below.
Response:
• Paying a fee to send the data for each advisory scan to the State's data aggregator (Currently, SGS Testcom).
Response: This is partially correct. If the advisory scan is completed in conjunction with the safety inspection, the fee for the safety inspection (37.3 cents) will cover both. If the advisory scan is completed alone, there will be a fee (37.3 cents).
• Paying very substantial salaries to skilled employees who perform the scans (inspections must be performed by state-certified inspectors who are required to be trained and experienced, and pass a state-administered examination).
Response: The advisory scan can be carried out during the mandated safety inspection and is not unduly burdensome. Under the existing regulation, NYCCR 79.8(b)(2), the safety inspection must be carried out by a state-certified inspector. The same individual currently doing the safety inspection can complete the advisory scan.
• Utilization of a service bay (real estate, building) of a size and type required by DMV regulations for the purpose of inspections (which bay could be used for other purposes more profitable purposes while it is "tied up" for an advisory scan).
Response: The advisory scan can be carried out during the safety inspection while the bay is being used for such purpose. No new space is needed.
• Purchasing and maintaining equipment specified by DMV for the purpose of inspections (NYVIP CVIS, scanners, printers, paper and other supplies).
Response: Nearly all dealers have this equipment. Out of approximately 1,100 dealers, 50 or so do not currently have a NYVIP CVIS. No dealer will be required to print any receipts for the advisory scan.
• Paying for utilities (light, heat, air conditioning, safety equipment, electrical power for overhead garage doors and the NYVIP CVIS units, including computers, scanners, and printers) and any other equipment necessary to complete the advisory scan.
Response: All of these basic costs are currently integral to carrying out the safety inspection and for that matter, operating a repair facility.
• Costs for other equipment and supplies (including safety equipment, Personal Protective Equipment, exhaust systems, etc.) as required by DMV, OSHA, DOL, etc.
Response: All of these basic costs are currently integral to carrying out the safety inspection and for that matter, operating a repair facility.
Comment: GNYADA comments that the Department could allow affected inspection stations to charge the fee for an emissions inspection to the consumer for the advisory scan.
Response: The Department does not believe that such a fee is warranted at this time.
Comment: GNYADA comments that multiple scans for each vehicle are possible (i.e. when the car first arrives at the dealership, as part of a pre-sale inspection, or during any safety inspection before it is two model years old.)
Response: It is the Department's intent that each vehicle get only one advisory scan. Each NYVIP CVIS will hold the vehicle identification number of any vehicle that receives an advisory scan on that machine for two years. This will automatically block the requirement for an advisory scan for a vehicle if it is presented to that NYVIP CVIS again.
Comment: GNYADA comments that inspection stations in Massachusetts can charge $29 for the advisory scan there.
Response: The Department's reference to Massachusetts was simply an example of the ease of conducting an advisory scan. The fee structures in New York and Massachusetts are completely different. Massachusetts has a flat fee of $29 for ALL inspections-safety only, safety with advisory scan, safety with emissions.
Comment: GNYADA comments that "only DMV benefits from those scans."
Response: The Department disagrees. There is a benefit to dealers and their customers. The Department will work with dealers to develop two ways to carry out the advisory scan. One will be a standalone function. The other will allow the advisory scan to be completed in conjunction with the mandated safety inspection. Further, we will work with dealers to use the advisory scan to provide any available information (i.e. diagnostic trouble codes) extracted from the vehicle to the dealer.
Currently when a new car is sold, the consumer has no assurance that the vehicle will be able to communicate properly for an emissions inspection when presented two years later. When such communications errors occur two years later, Department staff respond to assist the consumer with a problem that may date back to the time of sale. In such situations, the consumer is inconvenienced until a resolution can be found.
The advisory scan will provide a tool to address these problems for the dealer. The consumer currently needs to remedy the problem via the dealer or manufacturer. To avoid this significant inconvenience to the consumer and the additional workload to the dealer network, the advisory scan will allow the Department to address such communication issues with our emissions inspection vendor as we become aware of them. When the consumer has the vehicle emissions tested two years later, the issue will have already been addressed and will be transparent to the consumer and dealer/inspection station network.
