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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-33155

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 22, 1999
- **Citation:** 64 FR 71705

## Text

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

[[Page 71706]]

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]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-33155. Public record. Not legal advice.