Approval and Promulgation of Air Quality Implementation Plans; Delaware, Maryland, Pennsylvania, and Virginia; Approval of National Low Emission Vehicle Programs

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE 047-1024a, MD 089-3042a, PA 140-4092a, VA 104-5043a; FRL-6483-9]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware, Maryland, Pennsylvania, and Virginia; Approval of National

Low Emission Vehicle Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve State

Implementation Plan (SIP) revisions submitted by the Commonwealths of

Pennsylvania and Virginia, and by the States of Maryland and Delaware.

These SIP revisions formalize each of the respective State's

commitments to accept sales of motor vehicles that comply with the

requirements of the National Low Emission Vehicle (National LEV)

program. Delaware originally submitted its National LEV SIP revision to

EPA on February 25, 1999, but later revised the SIP on September 1,

1999 to supercede the prior submittal. Maryland submitted its National

LEV SIP revision to EPA on March 3, 1999, and amended the plan on March

24, 1999. Pennsylvania submitted its National LEV SIP revision to EPA

on January 8, 1999. Virginia submitted its National LEV SIP revision to

EPA on May 27, 1999.

Delaware, Maryland, Pennsylvania, and Virginia have agreed to the

sale of National LEV compliant vehicles within their borders, in lieu

of implementing a California LEV program. Under the National LEV

Program, auto manufacturers have agreed to sell cleaner vehicles

meeting the National LEV standards throughout these states for the

duration of the manufacturers' commitments to the National LEV Program.

A SIP revision from each participating state 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. The sale of vehicles complying with

National LEV program standards began with 1999 model year vehicles in

Northeast states, and will extend to other states outside the Northeast

beginning with 2001 model year vehicles.

DATES: This rule is effective on February 28, 2000 without further

notice, unless EPA receives adverse comment by January 27, 2000. 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: Written comments should be mailed to David L. Arnold, Chief,

Ozone and Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental

Protection Agency, Region III, 1650 Arch Street, Philadelphia,

Pennsylvania 19103. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

1650 Arch Street, Philadelphia, Pennsylvania 19103; or at the Air and

Radiation Docket and Information Center, U.S. Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460. Copies of state-

specific materials may be reviewed at each respective state's offices,

at: the Delaware Department of Natural Resources & Environmental

Control, 89 Kings Highway, Dover, Delaware 19903; the Maryland

Department of the Environment, 2500 Broening Highway, Baltimore,

Maryland, 21224; the Pennsylvania Department of Environmental

Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street,

Harrisburg, Pennsylvania 17105; or at the Virginia Department of

Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Brian K. Rehn, (215) 814-2176, or by

e-mail at Rehn.B[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

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

voluntary, nationwide clean car program, designed to reduce ground

level ozone (or smog) and other air pollution emitted from newly

manufactured motor vehicles. On June 6, 1997 (62 FR 31192) and on

January 7, 1998 (63 FR 926), the Environmental Protection Agency (EPA)

promulgated rules outlining the framework for the National LEV program.

These National LEV regulations allow auto manufacturers to commit to

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

stringent than EPA could otherwise mandate under the authority of the

Clean Air Act. The regulations provided that the program would come

into effect only if Northeast states and auto manufacturers agreed to

participate. On March 9, 1998 (63 FR 11374), EPA published a finding

that the program was in effect. Nine northeastern states (Connecticut,

Delaware, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode

Island, Virginia, and the District of Columbia) and 23 auto

manufacturers (BMW, Chrysler, Fiat, Ford, General Motors, Honda,

Hyundai, Isuzu, Jaguar, Kia, Land Rover, Mazda, Mercedes-Benz,

Mitsubishi, Nissan, Porsche, Rolls-Royce, Saab, Subaru, Suzuki, Toyota,

Volkswagon, and Volvo) had opted to participate in the National LEV

program. Once in effect, the National LEV Program became enforceable in

the same manner as any other Federal new motor vehicle emission control

program. The National LEV Program 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 move

towards the design and testing of vehicles to satisfy one set of

nationwide standards. The National LEV Program demonstrates how

cooperative partnership efforts can produce a smarter, cheaper

emissions control program, which 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 the actual per vehicle cost is now expected to be even lower, due

to factors such as economies of scale and historical trends related to

emission control costs. This predicted 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 take

effect, and will remain in effect, only if the

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participating auto manufacturers and Northeastern States 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 are to be made through SIP revisions that

incorporate those state commitments to National LEV into state

regulations. EPA will then take rulemaking action to approve each

state's regulation into its respective federally-enforceable SIP. 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 that revision as adequately committing

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

approving the National LEV SIP revisions for Delaware, Maryland,

Pennsylvania and Virginia as adequately committing those states to the

program. In the near future, EPA expects to take similar actions for

the remaining Northeast states that have elected to join the National

LEV Program.

II. EPA's Evaluation of the States' Submittals

At present, Delaware, Maryland, and Virginia have not exercised

their option, pursuant to section 177 of the Clean Air Act, to adopt

state standards to regulate new motor vehicles identical to

California's LEV program. Pennsylvania has adopted California's LEV

program concurrently with its National LEV Program regulation. Adopted

by the Commonwealth under section 177 of the Clean Air Act and entitled

the ``Pennsylvania's Clean Vehicle program'', this program serves as a

``backstop'' measure to the National LEV Program. Pennsylvania's Clean

Vehicle program would take effect in the event that the National LEV

program terminates due to opt-out by auto manufacturers or

participating states, or at the conclusion of the NLEV program.

Delaware, Maryland, Pennsylvania, and Virginia have each adopted

National LEV regulations that provide that for the duration of each

respective State's participation in the National LEV program,

manufacturers may comply with National LEV or equally stringent

mandatory Federal standards in lieu of compliance with any state-

adopted California LEV program pursuant to section 177 of the Clean Air

Act. Delaware, Maryland, Pennsylvania, and Virginia have each adopted

regulations that accept National LEV as a compliance alternative for

requirements applicable to passenger cars, light-duty trucks, and

medium-duty trucks designed to operate on gasoline. Each state's

regulation provides for participation in National LEV extends until

model year 2006. However, if by December 15, 2000, EPA does not adopt

mandatory national standards at least as stringent as the National LEV

standards that apply to new motor vehicles beginning in model year

2004, 2005 or 2006, the states' participation in the National LEV

Program would extend only until model year 2004. Through their

regulations, which were submitted to EPA as SIP revisions, Delaware,

Maryland, Pennsylvania, and Virginia have adequately committed to the

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

EPA's final National LEV rule stated that if states submit SIP

revisions containing regulatory language substantively identical to the

language in EPA's regulation without additional conditions, and if such

submissions otherwise meet the Clean Air Act requirements for

approvable SIP submissions, EPA would not need to conduct notice-and-

comment rulemaking to approve those SIP revisions. In its National LEV

rulemaking, EPA provided full opportunity for public comment on the

language to be contained in each state's subsequent SIP revision. Thus,

as discussed in more detail in the EPA National LEV final rule, the

requirements for EPA approval are easily verified objective criteria

(see 63 FR 936, January 7, 1998). While we could appropriately approve

the submissions from Delaware, Maryland, Pennsylvania, and Virginia

without providing for additional notice and requesting comments, we

have nonetheless decided to take this action in the form of a direct

final rulemaking, which allows an opportunity for further public

comment. In this instance, EPA is not under a timing constraint that

would support a shorter rulemaking process, and thus we have decided

there was no need to deviate from the Agency's usual procedures for SIP

approvals.

III. Final Action

EPA has evaluated the SIP revisions submitted by Delaware,

Maryland, Pennsylvania, and Virginia, the Agency has determined that

these SIP revisions are consistent with the EPA National LEV

regulations and satisfy the general SIP approval requirements of

section 110 of the Clean Air Act. Therefore, EPA is approving the

Delaware low emission vehicle rule submitted on September 1, 1999 into

the Delaware SIP. EPA is approving the Maryland low emission vehicle

rule submitted on March 3, 1999 (as amended on March 24, 1999) into the

Maryland SIP. EPA is approving the Pennsylvania's National LEV rule

that was submitted to EPA on January 8, 1999 into the Pennsylvania SIP.

Finally, EPA is approving Virginia's low emission vehicle rule

submitted to EPA on May 27, 1999 into the Virginia SIP.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment 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 if adverse

comments are filed. This rule will be effective February 28, 2000

without further notice, unless the Agency receives adverse comment by

January 27, 2000.

If EPA receives adverse comment, we 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.

Nothing in this action should be construed as permitting or

establishing a precedent for any future request for revision to any

State implementation plan. Each request for revision to the State

implementation plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from review under Executive Order 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Orders 12612 (Federalism) and 12875 (Enhancing the

Intergovernmental Partnership). Executive Order 13132 requires EPA to

develop an accountable process to ensure ``meaningful and timely input

by State and local officials in the development of regulatory policies

that have federalism implications.'' ``Policies that have

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federalism implications'' is defined in the Executive Order to include

regulations that have ``substantial direct effects on the 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.'' Under Executive Order 13132, EPA may not issue a

regulation that has federalism implications, that imposes substantial

direct compliance costs, and that is not required by statute, unless

the Federal government provides the funds necessary to pay the direct

compliance costs incurred by State and local governments, or EPA

consults with State and local officials early in the process of

developing the proposed regulation. EPA also may not issue a regulation

that has federalism implications and that preempts State law unless the

Agency consults with State and local officials early in the process of

developing the proposed regulation. This final rule will not have

substantial direct effects on the 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 13132. Thus, the requirements of section 6

of the Executive Order do not apply to this rule.

C . Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997), applies to any rule that the EPA determines (1) is

``economically significant,'' as defined under Executive Order 12866,

and; (2) the environmental health or safety risk addressed by the rule

has 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 final

rule is not subject to Executive Order 13045 because it does not

involve decisions intended to mitigate environmental health and safety

risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly affects or 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 Office of Management and Budget, 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 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. This action does not involve or impose any requirements

that affect Indian Tribes. Accordingly, the requirements of section

3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

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 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 a 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 Section 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 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

the approval action promulgated 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. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so

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would be inconsistent with applicable law or otherwise impractical. The

EPA believes that VCS are inapplicable to this action. Today's action

does not require the public to perform activities conducive to the use

of VCS.

I. Petitions for Judicial Review

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

judicial review of this approval action for four states' National Low

Emission Programs must be filed in the United States Court of Appeals

for the appropriate circuit by February 28, 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: November 18, 1999.

Alvin R. Morris,

Acting Regional Administrator, Region III.

40 CFR part 52 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 I--Delaware

2. In Sec. 52.420, the entry for Regulation 40, Delaware's National

Low Emission Program, in the table in paragraph (c) is added in

numerical order to read as follows:

Sec. 52.420 Identification of plan.

* * * * *

(c) EPA approved regulations.

EPA-Approved Regulations in the Delaware SIP

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State effective

State citation Title subject date EPA approval date Comments

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* * * * * *

*

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Regulation No. 40--National Low Emission Vehicle Program

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Section 1...................... Applicability.... October 11, 1999. December 28, 1999 Issued on September 1,

1999, by Secretary's

Order No. 99-A-0046.

Section 2...................... Definitions...... October 11, 1999. December 28, 1999 Issued on September 1,

1999, by Secretary's

Order No. 99-A-0046.

Section 3...................... Program October 11, 1999. December 28, 1999 Issued on September 1,

Participation. 1999, by Secretary's

Order No. 99-A-0046.

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Subpart V--Maryland

3. Section 52.1070 is amended by adding paragraph (c)(146) to read

as follows:

Sec. 52.1070 Identification of plan.

* * * * *

(c) * * *

(146) Revisions to the Maryland Regulations, through the addition

of COMAR 26.11.20.04, adopting the National Low Emission Vehicle

Program. This revision was submitted on March 3, 1999 by the Maryland

Department of the Environment, and was amended on March 24, 1999:

(i) Incorporation by reference.

(A) Letter of March 3, 1999 from the Maryland Department of the

Environment transmitting a revision to the Maryland State

Implementation Plan for a National Low Emission Vehicle program.

(B) Letter of March 24, 1999 from the Maryland Department of the

Environment revising Maryland's State Implementation Plan for a

National Low Emission Vehicle program.

(C) Maryland regulation COMAR 26.11.20.04, entitled ``National Low

Emission Vehicle Program'', effective March 22, 1999.

(ii) Additional Material.--Remainder of March 3, 1999 and March 24,

1999 submittals pertaining to COMAR 26.11.20.04.

Subpart NN--Pennsylvania

4. Section 52.2020 is amended by adding paragraph (c)(141) to read

as follows:

Sec. 52.2020 Identification of plan.

* * * * *

(c) * * *

(141) Revisions to the Pennsylvania Regulations for a Clean

Vehicles Program regulation submitted on January 8, 1999 by the

Pennsylvania Department of Environmental Protection:

(i) Incorporation by reference.

(A) Letter of January 8, 1999 from the Department of Environmental

Protection transmitting the National Low Emission Vehicles Program, and

a Pennsylvania Clean Vehicles Program as a ``backstop'' to the National

Low Emissions Vehicle Program.

(B) Amendments to Chapter 121 of Title 21 of the Pennsylvania Code,

effective on December 5, 1998, to include definitions for the following

terms: CARB, CARB Executive Order, California Code of Regulations,

Dealer, Debit, Emergency Vehicle, Fleet Average, GVWR, LDT, LDV, Model

Year, Motor Vehicle, Motor Vehicle Manufacturer, NLEV, NLEV Program,

NMOG, New Motor Vehicle / New Light-Duty Vehicle, Offset Vehicle,

Passenger Car, Ultimate Purchaser, Zero-Emission Vehicle

(C) Amendments to Chapter 126 of Title 21 of the Pennsylvania Code,

effective December 5, 1998, to add new sections: 126.401, 126.402,

126.411, 126.412, 126.413, 126.421, 126.422, 126.423, 126.424, 126.425,

126.431, 126.432, and 126.441.

(ii) Additional Material.--Remainder of January 8, 1999 submittal

pertaining to the National Low Emissions Vehicle Program and the

Pennsylvania Clean Vehicles Program.

Subpart VV--Virginia

5. Section 52.2420 is amended by adding paragraph (c)(135) to read

as follows:

Sec. 52.2420 Identification of plan.

* * * * *

(c) * * *

(135) Revisions to the Virginia Regulations for the adoption of the

National Low Emission Vehicle Program

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submitted on May 27, 1999 by the Department of Environmental Quality:

(i) Incorporation by reference.

(A) Letter of May 27, 1999 from the Department of Environmental

Quality transmitting Virginia's plan for adoption of a National Low

Emission Vehicle Program.

(B) Regulation for a National Low Emission Program, codified at 9

VAC 5-200 of the Virginia Code, effective on April 14, 1999, to add: 9

VAC 5-200-10, Paragraphs A, B, and C; and 9 VAC 5-200-20; and 9 VAC 5-

200-30.

(ii) Additional Material.--Remainder of May 27, 1999 submittal

pertaining to the National Low Emissions Vehicle Program.

[FR Doc. 99-33027 Filed 12-27-99; 8:45 am]

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