[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Proposed Rules]
[Pages 71705-71708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33155]


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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