Approval and Promulgation of Air Quality Implementation Plans; New Hampshire and Rhode Island; Approval of National Low Emission Vehicle Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH043-7170B; A-1-FRL-6514-1]

Approval and Promulgation of Air Quality Implementation Plans;

New Hampshire and Rhode Island; Approval of National Low Emission

Vehicle Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP)

revisions submitted by both the States of New Hampshire and Rhode

Island on August 16, 1999 and November 17, 1999, respectively,

providing that the national low emission vehicle (National LEV) be an

acceptable compliance option for new motor vehicles sold in each State.

In New Hampshire's case, they are providing a commitment by rule to

remain part of the National LEV program, and not adopt a California low

emission vehicle (CAL LEV) program for the duration of National LEV. In

the case of Rhode Island, they have modified their CAL LEV rule to

allow the national low emission vehicle program to be a compliance

alternative under their rule. Auto manufacturers have agreed to sell

these cleaner vehicles throughout each of these States for the duration

of the National LEV program. These SIP revisions are 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.

EPA is soliciting public comments on the issues discussed in this

proposal or on other relevant matters. These comments will be

considered before EPA takes final action. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the EPA Regional office listed in the ADDRESSES section of

this action.

DATES: Written comments must be received on or before January 21, 2000.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,

Office of Ecosystem Protection (mail code CAA), U.S. Environmental

Protection Agency, Region I, One Congress Street, Suite 1100, Boston,

MA 02114. Copies of the State submittal and EPA's technical support

document are available for public inspection during normal business

hours, by appointment, at the Office of Ecosystem Protection, U.S.

Environmental Protection Agency, Region I, One Congress Street, 11th

floor, Boston, MA, and Air and Radiation Docket and Information Center,

U.S. Environmental Protection Agency, 401 M Street, S.W., (LE-131),

Washington, D.C. 20460. In addition, the information for each

respective State is available at the Air Resources Division, Department

of Environmental Services, 6 Hazen Drive, P.O. Box 95, Concord, NH

03302-0095, and Division of Air and Hazardous Materials, Department of

Environmental Management, 291 Promenade Street, Providence, RI 02908-

5767.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045.

SUPPLEMENTARY INFORMATION:

I. Background

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

(EPA) published a final rule outlining a voluntary nationwide clean car

program, designed to reduce smog and other pollution from new motor

vehicles. The National LEV regulations allow auto manufacturers to

commit to meet tailpipe standards for cars and light-duty trucks that

are more stringent than EPA can mandate for the model years affected.

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 found that nine

northeastern States and

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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 nitrogen 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 are 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

proposing to approve the National LEV SIP revisions for New Hampshire

and Rhode Island as adequately committing each State to the program.

EPA expects to take similar actions for the other States that have

elected to join the National LEV program in the future.

Rhode Island has adopted a State clean vehicle program identical to

the CAL LEV program (without the zero emission vehicle requirements)

pursuant to section 177 of the Clean Air Act. The State has also

modified that regulation accepting compliance with National LEV as an

alternative for auto manufacturers to comply with the CAL LEV

requirements. Rhode Island's regulation now provides that for the

duration of the State's participation in National LEV, manufacturers

may comply with National LEV or equally stringent mandatory federal

standards in lieu of compliance with a State program adopted pursuant

to section 177. The regulation accepts National LEV as a compliance

alternative for requirements applicable to passenger cars, light-duty

trucks, and medium-duty trucks designed to operate on gasoline. The

regulation further provides that the State's participation in National

LEV extends until model year 2006, if by December 15, 2000, EPA adopts

mandatory standards at least as stringent as the National LEV standards

and 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 these rules, and an earlier February 22, 1999

submittal, Rhode Island has adequately committed to the National LEV

program, as provided in the final National LEV rule.

New Hampshire did not adopt a State clean vehicle program identical

to the CAL LEV program pursuant to section 177 of the Clean Air Act.

Instead, the State adopted a regulation accepting compliance with

National LEV as the State's clean vehicle program, and forgoing their

right to adopt a CAL LEV program. New Hampshire's regulation provides

that for the duration of the State's participation in National LEV,

manufacturers may comply with National LEV or equally stringent

mandatory federal standards in lieu of compliance with any State

program adopted pursuant to section 177. The regulation accepts

National LEV as a compliance alternative for requirements applicable to

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

operate on gasoline. The regulation further provides that the State's

participation in National LEV extends until model year 2006, if by

December 15, 2000, EPA adopts mandatory standards at least as stringent

as the National LEV standards and 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 these

regulations, New Hampshire has adequately committed to the National LEV

program, as provided in the final National LEV rule.

The final National LEV rule also stated that if States submitted

SIP revisions containing language substantively identical to the

language in the regulations without additional conditions, and if the

submissions met the Clean Air Act requirements for approvable SIP

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

rulemaking to approve the SIP revisions. In the National LEV

rulemaking, EPA already 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 EPA

believes that it could have appropriately approved the New Hampshire

and Rhode Island submissions without providing for additional notice

and comment, EPA nonetheless decided to propose approval of this

action, which allows an opportunity for further public comment. Here,

EPA is not under a timing constraint that would support a shorter

rulemaking process, and thus EPA decided there was no need to deviate

from the Agency's usual procedures for SIP approvals.

Proposed Action

EPA has evaluated the submitted SIP revisions submitted by New

Hampshire and Rhode Island and has determined that they are consistent

with the EPA National LEV regulations and meet the section 110

requirements for SIP approvals. Therefore, EPA is proposing approval of

the New Hampshire and Rhode Island low emission vehicle rules as

submitted on August 16, 1999 and November 17, 1999, respectively, into

the New Hampshire and Rhode Island SIP.

[[Page 71707]]

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.

II. Administrative Requirements

A. Executive Order 12866

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

regulatory action from 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 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 proposed 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,

because it merely approves a state rule implementing a voluntary

standard, and does not alter the relationship or the distribution of

power and responsibilities established in the Clean Air Act. Thus, the

requirements of section 6 of the Executive Order do not apply to this

rule.

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

Executive Order 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

Executive Order 13045 because it does not involve decisions intended to

mitigate environmental health or 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, or EPA consults

with those governments. If EPA complies by consulting, Executive Order

13084 requires EPA to 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 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. 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

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 proposed 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

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 the approval action proposed does not

include a Federal mandate that may result in estimated 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

[[Page 71708]]

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

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

Dated: December 14, 1999.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 99-33155 Filed 12-21-99; 8:45 am]

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