[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Rules and Regulations]
[Pages 59638-59642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27793]


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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
 

[[Page 59642]]

 
                   *                  *                  *                  *                  *                  *                  *
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]
BILLING CODE 6560-50-P