[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Rules and Regulations]
[Pages 9639-9642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5735]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI64-01-7148a; FRL-5416-8]


Approval and Promulgation of State Implementation Plan; 
Wisconsin; Clean-Fuel Fleet Program

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: In this action, U.S. Environmental Protection Agency (USEPA) 
is approving a revision to the Wisconsin State Implementation Plan 
(SIP) for the purpose of establishing a Clean-Fuel Fleet Program. 
Wisconsin submitted the SIP revision request to satisfy a federal 
mandate, found in the Clean Air Act, requiring certain states to 
establish Clean-Fuel Fleet Programs. This revision establishes and 
requires the implementation of a Clean-Fuel Fleet Program in the 
Milwaukee ozone nonattainment area.

DATES: This ``direct final'' rule is effective May 10, 1996, unless 
USEPA receives adverse or critical comments by April 10, 1996. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Comments may be mailed to: Carlton T. Nash, United States 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
Air Programs Branch (AP-18J), 77 West Jackson Boulevard, Chicago, 
Illinois, 60604.
    Copies of the documents relevant to this action are available at 
the above address for public inspection during normal business hours.

FOR FURTHER INFORMATION CONTACT: Brad J. Beeson at (312) 353-4779.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 15, 1990, Congress enacted amendments to the 1977 Clean 
Air Act (CAA), codified at 42 U.S.C. 7401-7671q. The Clean-Fuel Fleet 
Program (CFFP) is contained under Part C, entitled ``Clean Fuel 
Vehicles,'' of Title II of the Clean Air Act. Part C was added to the 
CAA to establish two programs, a clean-fuel vehicle pilot program in 
the state of California (the California Pilot Test Program) and a 
federal CFFP in certain ozone and carbon monoxide (CO) nonattainment 
areas.
    The CFFP will introduce lower pollution emitting vehicles, ``clean-
fuel vehicles'' (CFVs), into centrally-fueled fleets by requiring 
covered fleet operators to include a percentage of CFVs in their new 
fleet purchases. The goal of the CFFP is to reduce emissions of non-
methane organic gasses (NMOG), oxides of nitrogen (NOx), and CO through 
the introduction of CFVs into the covered areas. Both NMOG and NOx are 
precursors of ozone and, in most areas, their reduction will reduce the 
concentration of ozone in covered ozone nonattainment areas. Reductions 
of vehicular CO emissions will reduce the 

[[Page 9640]]
concentration of CO in covered CO nonattainment areas.
    Congress chose centrally-fueled fleets because operators of these 
fleets have more control over obtaining fuel than the general public. 
Additionally, the control that operators maintain over their fleets 
simplifies maintenance and refueling of these vehicles. Finally, 
because fleet vehicles typically travel more miles on an annual basis 
than do non-fleet vehicles, they provide greater opportunity to improve 
air quality on a per vehicle basis.
    Section 182(c)(4) of the CAA allows states to opt-out of the CFFP 
by submitting, for EPA approval, a SIP revision consisting of a 
substitute program resulting in as much or greater long term emission 
reductions in ozone producing and toxic air emissions as the CFFP. The 
EPA may approve such a revision ``only if it consists exclusively of 
provisions other than those required under the [CAA] for the area.''

II. Program Requirements

    Unless a state chooses to opt-out of the CFFP under section 
182(c)(4) of the CAA, section 246 of the CAA directs a state containing 
covered areas to revise its SIP, within 42 months after enactment of 
the CAA, to establish a CFFP. The CFFP shall require a specified 
percentage of all newly acquired vehicles of covered fleets, beginning 
with model year (MY) 1998 and thereafter, to be CFVs and such vehicles 
shall use the fuel on which the vehicle was certified to be a CFV (or 
to use a fuel that will result in even fewer emissions than the fuel 
that was used for certification), when operating in the covered area.

III. State Submittal

    The state of Wisconsin did not choose to opt-out of the CFFP 
pursuant to section 182(c)(4) of the CAA and, therefore, submitted a 
SIP revision on May 12, 1994, to implement a CFFP. However, because 
this submittal did not include a fully adopted rule establishing a 
CFFP, EPA deemed the submittal incomplete. On June 7, 1995, the state 
made a supplemental submittal that included a fully adopted CFFP rule. 
On July 20, EPA determined that the state's SIP submittal for a CFFP 
was complete.

IV. EPA's Analysis of the State's Clean Fuel Fleet Program

    EPA has reviewed the state's submittal for consistency with the 
requirements of EPA regulations. A summary of EPA's analysis is 
provided below. More detailed support for approval of the state's 
submittal is contained in a Technical Support Document (TSD), dated 
September 6, 1995, which is available from the Region 5 Office, listed 
above.

A. Covered Areas

    The SIP revision needs to list those areas where the CFFP will be 
implemented, as required by section 246(a)(2) of the CAA. In Wisconsin, 
the applicable areas defined by section 246(a)(2) include Kenosha, 
Milwaukee, Ozaukee, Racine, Washington, and Waukesha counties.
    Section NR 487.01(1) of the Wisconsin Administrative Code defines 
the covered area to include Kenosha, Milwaukee, Ozaukee, Racine, 
Washington, and Waukesha counties. These are the same counties as 
required by the CAA.

B. Definitions

    Sections 241(1) to (7) of the CAA, and 40 CFR 88.302-94, define 
specific terms that are to be used in the state regulations.
    NR 487.02 contains definitions of the terms used by Wisconsin in 
the CFFP rule. The revision's definitions are consistent with section 
241(1) to (7) of the CAA as well as 40 CFR 88.302-94.

C. Covered Fleets

    Section 241(5) of the CAA defines a ``covered fleet'' as 10 or more 
motor vehicles that are owned or operated by a single person.
    NR 487.01(1) and 487.02, taken together, identify the vehicles/
fleets that are included in Wisconsin's CFFP, and are consistent with 
section 241(5) of the CAA.

D. Vehicles Classes Covered

    Sections 242 and 243 of the CAA and 40 CFR part 88, subpart C, 
define the vehicle classes covered by the CFFP. Additionally, section 
245(a) of the CAA exempts from the CFV standards vehicles having a 
Gross Vehicle Weight Rating (GVWR) of more than 26,000 pounds.
    NR 487.02(6) and (7) define the vehicle classes covered by the 
Wisconsin CFFP. The classes of vehicles included in the Revision are 
identical to those set forth in sections 242 and 243 of the CAA and 40 
CFR part 88, subpart C, including the 26,000 pound GVWR exemption.

E. Clean-Fuel Vehicles (CFVs)

    Section 241(7) of the CAA defines a CFV to mean a vehicle in a 
class or category of vehicles that has been certified to meet for any 
model year the applicable CFV standards. 40 CFR 88.104-94 and 40 CFR 
88.306-94 establish three categories of increasingly stringent CFV 
standards, which are referred to as low-emission vehicle (LEV) 
standards, ultra low-emission vehicle (ULEV) standards, and zero-
emission vehicle (ZEV) standards. In addition, a vehicle certified by 
the EPA to meet the inherently low-emission vehicle (ILEV) standard, 
found in 40 CFR 88.311-93, is also considered a CFV.
    NR 487.02(6) defines a CFV as a vehicle which has been certified to 
meet, for any model year, a set of emission standards, contained in 
Table I of the CFFP rule. The standards specified in the rule are the 
same as those established in 40 CFR 88.104-94, 40 CFR 88.311-93, and 40 
CFR 88.306-944.

F. Percentage Requirements

    Section 246(b) of the CAA establishes phase-in requirements for 
covered fleets applicable to new vehicle acquisitions.
    NR 487.03 contains the CFV purchase requirements for the 
Wisconsin's CFFP. The phase-in schedule in Wisconsin's rule is 
identical to the schedule in the CAA.

G. Credit Program

    Section 246(f) of the CAA and 40 CFR 88.304-94 require the state to 
implement a credit program as part of the CFFP. Briefly, the Clean-Fuel 
Fleet (CFF) credit program establishes a market-based mechanism that 
allows fleet owners some flexibility in complying with the CFF purchase 
requirement. Fleet owners may meet the purchase requirements in any of 
several ways: (1) By the purchase of more CFVs than the minimum 
required by a CFFP; (2) by the purchase of CFVs which meet more 
stringent emission standards than the minimum required by the CFFP; (3) 
by the purchase of CFVs otherwise exempt from the CFFP; and (4) by the 
purchase of CFVs before MY 1998.
    The credits generated may be used by a covered fleet operator to 
satisfy the purchase requirements of a CFFP or may be traded by one 
covered fleet operator to another, provided the credits were generated 
and used in, and both operators are located in, the same nonattainment 
area. Certain restrictions on the trading of the credits between 
classes must be observed. The credits do not depreciate with time and 
are to be freely traded without interference by the state.
    NR 487.09 establishes a credit program that provides credits for 
operators who: (1) acquire more CFVs than the Wisconsin CFFP requires 
in any year; (2) acquire CFVs which meet more stringent emission 
standards than the minimum requirements; (3) acquire 

[[Page 9641]]
CFVs in exempted vehicle categories; or (4) acquire CFVs after November 
15, 1990, but prior to MY 1998. These eligibility requirements are 
consistent with section 246(f) of the CAA.
    NR 487 includes Tables 3, 4, 6, and 7, which set forth the amount 
of credit granted for the various ways of meeting the purchasing 
requirements explained above. These tables are identical to Tables C94-
2, C94-2.2, C94-4, and C94-4.2 of 40 CFR part 88, subpart C.
    The revision requires credits for LDV and HDV to be kept separate. 
Trading of credits between LDV and LDT is permitted. However, trading 
is not allowed between HDV and LDV or LDT or in an upward direction. 
These limitations and restrictions are consistent with those specified 
in section 246(f)(2) of the CAA.

H. Fuel Use

    40 CFR 88.304-94(b)(3) requires that the fuel on which a dual fuel/
flexible fuel CFV was certified to be used at all times when the 
vehicle is in the covered area.
    NR 487.03(3) requires that for any dual-fuel/hybrid electric 
vehicle to be considered a CFV (and therefore capable of generating 
credit), the vehicle must be operated, while in the covered area, on 
the fuel or power source, for which it was certified to meet applicable 
emission standards.

I. Fuel Availability

    Section 246(e) of the CAA requires the SIP revision to require fuel 
providers to make clean alternative fuel available to the covered 
fleets at central locations.
    NR 487.12 requires fuel providers to make clean alternative fuels 
available to covered fleet operators at central locations where 
technically and economically feasible.

J. Consultation

    Section 246(a)(4) of the CAA requires that the SIP revision must be 
developed in consultation with fleet operators, vehicle manufacturers, 
fuel producers, distributors of motor vehicle fuel, and other 
interested parties, taking into consideration operational range, 
specialty uses, vehicle and fuel availability, costs, safety, resale 
values, and other relevant factors.
    The Wisconsin Department of Natural Resources (WDNR) organized a 
consultation committee, called the Clean-Fuel Fleet Committee. The 
Committee met several times and included representatives from fleet 
owners, fleet operators, fuel providers, and environmentalists. The 
Committee took into consideration the factors specified in section 
246(a)(4) of the CAA.

K. Recordkeeping and Monitoring

    No specific recordkeeping and monitoring requirements are found in 
section 246 of the CAA or 40 CFR 88.304-94. However, EPA ensures that a 
number of questions are answered in order to determine the adequacy of 
a CFFP. 60 FR 54305 (Oct. 23, 1995).
    (1) Does the SIP revision provide a reasonable process for the 
state to determine which fleets should report data to the state, 
consistent with the state's approach to ``operated in the covered 
area''?
    (2) Is there a process for updating this list of potentially 
covered fleet operators?
    (3) Does the SIP revision include a process for the state agency to 
receive at least the following data from fleet operators:
    (a) Numbers, categories, and fueling patterns of vehicles in the 
fleet?
    (b) Numbers, engine family names, categories, and fueling patterns 
of new acquisitions?
    (c) Numbers, engine family names, categories, and fueling patterns 
of CFV acquisitions?
    (d) For dual-fuel/flexible-fuel vehicles, data on fuel usage 
sufficient to demonstrate that the proper fuel was used when the 
vehicle was operated in the covered area?
    (4) Does the SIP revision describe how the data will be processed, 
maintained, updated, and used to confirm compliance by fleets?
    (5) Does the SIP revision provide for oversight of the data 
acquisition process?
    Information and actions responsive to these questions are provided 
as follows:
    NR 487.05 requires any person who operates a fleet of 10 or more 
CFVs to register with the WDNR.
    NR 487.05 also requires the registration to include some 
information responsive to the questions above. In addition, NR 487.06 
requires covered fleet operators to submit annual compliance plans to 
WDNR. All information required in 3(a) to 3(d) above, as well as other 
information, is included in these requirements. The information is 
reported on balance sheets and item sheets which allows the WDNR to 
monitor the performance of the operators. WDNR will review the annual 
compliance plans for approval or disapproval in keeping with NR 487.08.

L. Enforcement

    The state must be able to adequately enforce the requirements of 
the regulations adopted for implementation of the CFFP. 60 FR 54305 
(Oct. 23, 1995).
    NR 487.14 is the enforcement section of the Wisconsin CFFP. This 
section states that fleet operators are subject to WDNR enforcement 
procedures and penalties if they fail to comply with any requirement of 
NR 487.

M. Transportation Control Measure Exemptions

    40 CFR 88.307-94(a) requires states to exempt any CFV, required by 
law to participate in a CFFP, from temporal-based (e.g., time-of-day or 
day-of-week) transportation control measures (TCM) existing for air 
quality reasons as long as the exemption does not create a clear and 
direct safety hazard. In the case of high occupancy vehicle (HOV) 
lanes, this exemption only applies to CFVs that are certified to be 
ILEVs pursuant to 40 CFR 88.313-93.
    NR 487.10 exempts CFVs from temporal based TCMs as long as the CFV 
is in compliance with applicable emission standards. In addition, NR 
487.10(3) specifically exempts ILEVs from HOV restrictions. These TCM 
restrictions are consistent with those provided for in 40 CFR 88.307-94 
and 40 CFR 88.313-93.

N. Concluding Statement

    The EPA has reviewed the Wisconsin CFFP SIP revision submitted to 
the EPA as described above. The materials contained in the SIP revision 
represent an acceptable approach to the CFFP requirements and meet all 
the criteria required for approvability.

V. Action

    The EPA approves Wisconsin's CFFP SIP submittal. With this action, 
EPA incorporates Wisconsin's CFFP SIP revision into the SIP, making it 
federally enforceable.
    Because EPA considers this action noncontroversial and routine, we 
are approving it without prior proposal. This action will become 
effective on May 10, 1996. However, if we receive significant adverse 
comments by April 10, 1996, EPA will publish a document that modifies 
or withdraws this action.

VI. Miscellaneous

A. Applicability to Future SIP Decisions

    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The EPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements. 

[[Page 9642]]


B. Executive Order 12866
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    This approval does not create any new requirements. Therefore, I 
certify that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the federal-
state relationship under the Act, preparation of the regulatory 
flexibility analysis would constitute federal inquiry into the economic 
reasonableness of the state action. The Act forbids EPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976).
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 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, the 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 the EPA to establish a 
plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    The EPA has determined that the approval action promulgated today 
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 under state 
or local law, and imposes no new federal requirements. Accordingly, no 
additional costs to state, local, or tribal governments, or the private 
sector, result from this action.
D. Petitions for Judicial Review
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 10, 1996. 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Ozone, Motor 
vehicle pollution, Reporting and recordkeeping requirements.

    Dated: January 17, 1996.
Valdas V. Adamkus,
Regional Administrator.
    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. 7401-7671q.
Subpart YY--Wisconsin
    2. Section 52.2570 is amended by adding paragraph (c)(87) to read 
as follows:


Sec. 52.2570  Identification of plan.

* * * * *
    (c) * * *
    (87) The state of Wisconsin requested a revision to the Wisconsin 
State Implementation Plan (SIP). This revision is for the purpose of 
establishing and implementing a Clean-Fuel Fleet Program to satisfy the 
federal requirements for a Clean Fuel Fleet Program to be part of the 
SIP for Wisconsin.
    (i) Incorporation by reference.
    (A) Chapter 487 of the Wisconsin Administrative Code, effective 
June 1, 1995.
    (B) Wisconsin Statutes, section 144.3714, enacted on April 30, 
1992, by Wisconsin Act 302.

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[FR Doc. 96-5735 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P