Approval and Promulgation of Air Quality Implementation Plans; New Jersey; Approval of National Low Emission Vehicle Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NJ35-2-195a FRL-6461-7]

Approval and Promulgation of Air Quality Implementation Plans;

New Jersey; Approval of National Low Emission Vehicle Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a State

Implementation Plan (SIP) revision submitted by the State of New Jersey

on February 22, 1999. That revision committed that the State will

accept compliance with the National Low Emission Vehicle (National LEV)

program requirements as a compliance option for new motor vehicles sold

in the State. New Jersey has previously adopted the California Low

Emission Vehicle (CAL LEV) program, but the State has made clear that

National LEV is the preferred motor vehicle control program. Auto

manufacturers have agreed to sell cleaner vehicles meeting the National

LEV standards throughout New Jersey for the duration of the

manufacturers' commitments to the National LEV program. This SIP

revision is required as part of the agreement between states and

automobile manufacturers to ensure the continuation of the National LEV

program to supply clean cars throughout most of the country, beginning

with 1999 model year vehicles in Northeastern states and extending to

other states beginning with 2001 model year vehicles.

DATES: This rule is effective on January 3, 2000 without further

notice, unless EPA receives adverse comment by December 3, 1999. If we

receive such comment, EPA will publish a timely withdrawal of the

direct final rule in the Federal Register informing the public that

this rule will not take effect.

ADDRESSES: Comments may be mailed to: Raymond Werner, Acting Chief, Air

Programs Branch, Environmental Protection Agency, Region 2, 290

Broadway, 25th Floor, New York, NY 10007-1866.

Copies of the State submittal are available for public inspection

during normal business hours, by appointment, at the following

addresses:

Environmental Protection Agency, Region 2, Air Programs Branch, 290

Broadway, 25th Floor, New York, NY 10007-1866.

New Jersey Department of Environmental Protection, Bureau of Air

Quality Planning, 401 East State Street, CN027, Trenton, New Jersey

08625

FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Air Programs

Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New

York, NY 10007-1866, (212) 637-3710.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What action is EPA taking today?

2. What is the National Low Emission Vehicle program?

3. What is New Jersey's role in the National LEV program?

4. Final Action

5. Administrative Requirements

1. What Action Is EPA Taking Today?

The EPA is approving New Jersey's State Implementation Plan (SIP)

revision, submitted on February 22, 1999, which fulfills the State's

obligation to incorporate its commitment to the National Low Emission

Vehicle (National LEV) program in the SIP. The submittal contains

amendments, adopted on February 3, 1999, to the State's ``Ozone

Transport Commission--Low Emission

[[Page 59639]]

Vehicle'' (OTC-LEV) program rules at N.J.A.C. 7:27-26. These changes

complete New Jersey's process of agreeing to participate in, or

``opting into'' the National LEV program.

The State's commitment to opt into the National LEV program was

stated by Governor Christine Todd Whitman in her January 28, 1998

letter to the EPA Administrator. New Jersey's regulations now provide

that the National LEV program is an acceptable compliance option, in

addition to the California low emission vehicle (CAL LEV) program, for

new motor vehicles sold in the State.

New Jersey had previously adopted the CAL LEV program, but had also

specified that National LEV would be the State's preferred motor

vehicle control program if it became effective. Based on the opt-ins

and commitments of the auto manufacturers and the Northeastern states,

on March 2, 1998, EPA determined that National LEV is in effect. New

Jersey's SIP revision is required as part of the agreement between

states and automobile manufacturers to ensure the continuation of this

program to bring clean cars throughout the country, beginning with 1999

model year vehicles in the Northeast.

The final National LEV rule stated that if states submitted SIP

revisions containing language substantively identical to the language

in the National LEV regulations without additional conditions, and if

the submissions met the Clean Air Act requirements for approvable SIP

submissions, we would not need to go through notice-and-comment

rulemaking to approve the SIP revisions. In the National LEV

rulemaking, we provided full opportunity for public comment on the

language for the SIP revisions. Thus, as discussed in more detail in

the final rule, the requirements for EPA approval are easily verified

objective criteria. See 63 FR 936 (January 7, 1998). While we believe

that we could have appropriately approved the New Jersey submittal

without providing for additional notice and comment, we nonetheless

decided to take this action as a direct final rulemaking, which allows

an opportunity for further public comment. Here, we are not under a

timing constraint that would support a shorter rulemaking process, and

thus we decided there was no need to deviate from EPA's usual

procedures for SIP approvals.

2. What Is the National Low Emission Vehicle Program?

The National Low Emission Vehicle (National LEV) program is a

voluntary nationwide clean car program, designed to reduce smog and

other pollution from new motor vehicles. On January 7, 1998, (63 FR

926) EPA published a final rule outlining the National LEV program. The

National LEV regulations allow auto manufacturers to commit to meet

tailpipe standards for cars and light light-duty trucks that are more

stringent than EPA can mandate. The regulations provided that the

program would come into effect only if Northeastern states and the auto

manufacturers voluntarily signed up for it. On March 9, 1998 (63 FR

11374), EPA published a notice finding that nine Northeastern states

(New Jersey, New Hampshire, Rhode Island, Connecticut, Pennsylvania,

Maryland, Virginia, Delaware and the District of Columbia) and 23

manufacturers had opted into the National LEV program and that the

program is in effect. Now that it is in effect, National LEV is

enforceable in the same manner as any other federal new motor vehicle

program.

National LEV will achieve significant air pollution reductions

nationwide. In addition, the program provides substantial harmonization

of federal and California new motor vehicle standards and test

procedures, which enables manufacturers to design and test vehicles to

one set of standards nationwide. The National LEV program demonstrates

how cooperative, partnership efforts can produce a smarter, cheaper

program that reduces regulatory burden while increasing protection of

the environment and public health.

The National LEV program will result in substantial reductions in

non-methane organic gases (NMOG) and nitrous oxides (NOX),

which contribute to unhealthy levels of smog in many areas across the

country. National LEV vehicles are 70% cleaner than today's model

requirements under the Clean Air Act. This voluntary program provides

auto manufacturers flexibility in meeting the associated standards as

well as the opportunity to harmonize their production lines and make

vehicles more efficiently.

National LEV vehicles were estimated to cost an additional $76

above the price of vehicles otherwise required today, but it is

expected that due to factors such as economies of scale and historical

trends related to emission control costs, the per vehicle cost will be

even lower. This incremental cost is less than 0.5% of the price of an

average new car. In addition, the National LEV program will help ozone

nonattainment areas across the country improve their air quality as

well as reduce pressure to make further, more costly emission

reductions from stationary industrial sources.

Because it is a voluntary program, National LEV was set up to come

into effect, and will remain in effect, only if the Northeastern state

and auto manufacturer participants commit to the program and abide by

their commitments. The states and manufacturers initially committed to

the program through opt-in notifications to EPA, which were sufficient

for EPA to find that National LEV had come into effect. The National

LEV regulations provide that the second stage of the state commitments

is to be made through SIP revisions that incorporate the state

commitments to National LEV in state regulations, which EPA will

approve into the federally-enforceable SIPs. The National LEV

regulations laid out the elements to be incorporated in the SIP

revisions, the timing for such revisions, and the language (or

substantively similar language) that needs to be included in a SIP

revision to allow EPA to approve the revision as adequately committing

the state to the National LEV program. In today's action, EPA is

approving the National LEV SIP revision for New Jersey as adequately

committing the State to the program. EPA expects to take similar action

for the other states that have elected to join the National LEV program

in the future.

3. What Is New Jersey's Role in the National LEV Program?

Along with eight other Northeast states, New Jersey has chosen to

participate in and accept National LEV as an alternative motor vehicle

control program. New Jersey has adopted state clean vehicle rules which

include provisions for a program identical to the California low

emission vehicle (CAL LEV) program, pursuant to section 177 of the

Clean Air Act. The motor vehicle program rules, originally adopted on

November 22, 1995, are titled ``Ozone Transport Commission--Low

Emission Vehicle program'' (OTC-LEV) and are codified at N.J.A.C. 7:27-

26. These rules explicitly provide that motor vehicle manufacturers

could comply with a national program as an alternative to the CAL LEV

program in New Jersey.

The State adopted amendments, on February 3, 1999, to its OTC-LEV

program rules. Those amendments, transmitted in the SIP submittal we

are acting on today, modify the OTC-LEV rule to accept compliance with

National LEV, specifically, as the auto manufacturers' alternative to

compliance with the section 177 CAL LEV requirements. The State's

regulations now provide that for the duration of New Jersey's

participation in

[[Page 59640]]

National LEV, manufacturers may comply with National LEV or equally

stringent mandatory federal standards in lieu of compliance with the

CAL LEV program adopted pursuant to section 177. The regulations accept

National LEV as a compliance alternative for requirements applicable to

passenger cars, light light-duty trucks, and light-duty trucks designed

to operate on gasoline. The regulations further provide that New

Jersey's participation in National LEV conditionally extends until

model year 2006. The condition is that by the end of calendar year

2000, EPA must adopt mandatory standards at least as stringent as the

National LEV standards. Such standards would apply to new motor

vehicles beginning in model year 2004, 2005 or 2006. If EPA does not

adopt such standards by that date, the State's participation in

National LEV would extend only until model year 2004. Through this

regulation and its amendments, the State has adequately committed to

the National LEV program, as provided in the final National LEV rule.

4. Final Action

EPA has evaluated the SIP revision submitted by New Jersey and have

determined it is consistent with the EPA National LEV regulations and

meets the Clean Air Act section 110 requirements for SIP approvals.

Therefore, EPA is approving the New Jersey ``OTC-LEV'' program rules as

amended on February 3, 1999, and submitted on February 22, 1999, into

the New Jersey SIP.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial submittal and anticipates no

adverse comments. However, in the ``Proposed Rules'' section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective January 3, 2000

without further notice unless the Agency receives adverse comment by

December 3, 1999.

If EPA receives adverse comment, then EPA will publish a timely

withdrawal in the Federal Register informing the public that the rule

will not take effect. EPA will address all public comments received in

a subsequent final rule based on the proposed rule. EPA will not

institute a second comment period on this action. Any parties

interested in commenting must do so at this time.

5. Administrative Requirements

A. Executive Order 12866

Regulatory Impact Analysis

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Orders on Federalism

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),)

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612 (52 FR 41685 (October 30, 1987)) on federalism

still applies. This rule will not have a substantial direct effect on

states, on the relationship between the national government and the

states, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 12612.

The rule affects only one state, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it is not

``economically significant'' as defined under E. O. 12866, and does not

involve an action that addresses environmental or safety risks.

D. Executive Order 13084

Consultation and Coordination With Indian Tribal Governments

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the OMB, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of E.O. 13084 do not apply to this rule.

E. Impact on Small Entities

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on

[[Page 59641]]

a substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to state, local, or tribal governments in the aggregate,

or to the private sector, of $100 million or more. Under section 205,

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that this final approval action does not include

a Federal mandate that may result in estimated annual costs of $100

million or more to either state, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under state or local law, and imposes no new

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by January 3, 2000. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: September 27, 1999.

William J. Muszynski,

Acting Regional Administrator,

Region 2.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart FF--New Jersey

2. Section 52.1570 is amended by adding new paragraph (c)(67) to

read as follows:

Sec. 52.1570 Identification of plan.

* * * * *

(c) * * *

* * * * *

(67) Revision to the New Jersey State Implementation Plan (SIP) for

ozone, submitting amended New Jersey Ozone Transport Commission--Low

Emission Vehicle (OTC-LEV) program, Opting into the National Low

Emission Vehicle (National LEV) Program, dated February 22, 1999,

submitted by the New Jersey Department of Environmental Protection

(NJDEP).

(i) Incorporation by reference: Title 7, Chapter 27, Subchapter 26,

``Ozone Transport Commission--Low Emission Vehicles Program,''

effective March 1, 1999.

(ii) Additional information: Letter from the New Jersey Department

of Environmental Protection Commissioner Shinn, dated February 22,

1999, submitting a revision to the New Jersey State Implementation Plan

for the National Low Emission Vehicle program.

3. Section 52.1605 is amended by revising the entry for

``Subchapter 26'' under the heading ``Title 7, Chapter 27'' in

numerical order to read as follows:

Sec. 52.1605 EPA-approved New Jersey regulations.

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State regulation State effective date EPA approved date Explanation

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* * * * * * *

Title 7, Chapter 27

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Subchapter 26, ``Ozone Transport March 1, 1999................... Nov. 3, 1999................... Provides that for the duration of New Jersey's

Commission--Low Emission Vehicles participation in National Low Emission Vehicle

Program''. (LEV), manufacturers may comply with National

LEV or equally stringent mandatory federal

standards in lieu of compliance with the

California LEV program adopted pursuant to

section 177. The regulations accept National

LEV as a compliance alternative for

requirements applicable to passenger cars,

light light-duty trucks, and light-duty trucks

designed to operate on gasoline.

* * * * * * *

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[FR Doc. 99-27793 Filed 11-2-99; 8:45 am]

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