[Federal Register Volume 67, Number 246 (Monday, December 23, 2002)]
[Rules and Regulations]
[Pages 78179-78181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32129]



[[Page 78179]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA087-7215a; A-1-FRL-7418-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Low Emission Vehicle Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Massachusetts on August 9, 2002 and 
August 26, 2002. The SIP revision amends the Massachusetts Low Emission 
Vehicle (LEV ) program that is currently contained in the federally-
approved SIP by replacing it with a revised version of the LEV program 
adopted on December 24, 1999. EPA proposed to approve this on October 
15, 2002 (67 FR 63583), and received comments from five parties, four 
of which supported the action fully and one of which outlined some 
concerns. The regulations adopted by Massachusetts now include the 
California LEV II motor vehicle emission standards effective in model 
year 2004, the California LEV I medium-duty standards effective in 
model year 2003 and the smog index label specification effective in 
model year 2002. Massachusetts has adopted these revisions to reduce 
emissions of volatile organic compounds (VOC) and nitrogen oxides 
(NOX) in accordance with the requirements of the Clean Air 
Act (CAA). In addition, Massachusetts has worked to ensure that its 
motor vehicle emission program is identical to California's, as 
required by section 177 of the CAA. EPA is approving the revised 
version Massachusetts LEV program adopted on December 24, 1999, with 
the exception of the zero emission vehicle (ZEV) program. This action 
is being taken under section 110 of the Clean Air Act.

EFFECTIVE DATE: This rule will become effective on January 22, 2003.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA-New England, One Congress Street, 11th floor, 
Boston, MA and the Division of Air Quality Control, Department of 
Environmental Protection, One Winter Street, 8th Floor, Boston, MA 
02108.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045, or 
[email protected].

SUPPLEMENTARY INFORMATION: On October 15, 2002 (67 FR 63583), EPA 
published a Notice of Proposed Rulemaking (NPR) for the Commonwealth of 
Massachusetts, and received comments that are summarized and responded 
to below. EPA is now approving a SIP revision submitted by the 
Commonwealth of Massachusetts on August 9, 2002 and August 26, 2002 
which amends the Massachusetts LEV I Program that is currently 
contained in the federally-approved SIP by replacing it with a revised 
version of the LEV program. As discussed in the NPR for this action, 
EPA is not taking action on Massachusetts ZEV program at this time.
    Under section 177 of the CAA, States adopting California's motor 
vehicle emission standards must adopt standards that are identical to 
California standards. The ZEV program, which California has intended to 
work in conjunction with the California LEV program, has undergone 
several modifications through the years in California. In response, 
Massachusetts has made several changes to their ZEV program in attempts 
to ensure their program is consistent with California. In fact, the 
Commonwealth has made changes regarding ZEV requirements since the time 
it adopted the rule that is currently before EPA. Nevertheless, the 
Massachusetts revised LEV program is designed to be a comprehensive 
program which will secure those emission reductions that are necessary 
for Massachusetts' attainment demonstration for the one-hour ozone 
NAAQS. For that reason, and since the emission reductions from the 
California program are controlled by the fleet average hydrocarbon 
curve and other similar measures, and can be achieved without any 
specific ZEV sales requirements, we are approving the Massachusetts LEV 
rules adopted on December 24, 1999 without taking action on or 
approving the Massachusetts ZEV program at this time. In the case of 
sections 310 CMR 7.40(2)(a)6, 310 CMR 7.40(2)(c)3, 310 CMR 7.40(10), 
and 310 CMR 7.40(12), EPA was not requested to take action. For section 
310 CMR 7.40(2)(a)5, which establishes ZEV requirements beginning in 
model year 2003, EPA is not taking any action at this time but intends 
to do so in the future through the appropriate rulemaking process as 
the manufacturers' requirements for ZEVs in California, and 
Massachusetts, become clarified. EPA will conduct full notice and 
comment rulemaking on the ZEV portion of the Massachusetts program when 
those requirements become clarified since those provisions have not 
been acted on in this rulemaking, or in the October 15, 2002 proposed 
rulemaking. Other details of EPA's proposed rulemaking were outlined in 
the Federal Register and will not be restated here.

I. Comments on the Proposed Rulemaking

    As stated above, EPA sought public comment on this action and five 
parties submitted comments. First, two members of the general public 
submitted comments by which they expressed support for EPA's action to 
approve the Massachusetts low emission vehicle program as a means to 
get cleaner air. Next, the Appalachian Mountain Club (AMC), which 
comprises some 93,000 members, and the Massachusetts Public Interest 
Research Group (MASSPIRG) provided comments and were supportive of the 
Massachusetts LEV program. Both organizations also expressed support 
for Massachusetts intentions to require ZEVs as a way to advance zero 
emission vehicle technology. AMC explicitly recognized that EPA was not 
acting on ZEV provisions in this rulemaking. Lastly, the Alliance of 
Automobile Manufacturers (``the Alliance'') expressed some concerns and 
sought clarification of the action, particularly as it relates to the 
ZEV requirements of the Massachusetts program.
    The Alliance expressed concern that this action appeared to 
conflict with another EPA proposed action which was published on 
October 15, 2002 (67 FR 63586) and that included a reference to 
approving the California LEV II program that might suggest inclusion of 
the ZEV program. To be clear, as stated in the NPR for this action, EPA 
is approving the Massachusetts LEV program adopted on December 24, 
1999, with the exception of the ZEV program. The emission reductions 
associated with the Massachusetts LEV program that EPA is approving are 
assumed in the Massachusetts demonstration of attainment, and are 
necessary for attainment. These emission reduction estimates are 
determined by the MOBILE6 model for mobile source emission inventory 
estimations, which was peer and publicly reviewed, and represents our 
best estimate of the emission reductions from the program. At this 
time, for reasons outlined in the notice of proposed rulemaking for 
this action, EPA is not taking any action on the Massachusetts ZEV 
program. All portions of the previously federally-

[[Page 78180]]

approved Massachusetts LEV I program, including those related to ZEVs, 
are being replaced by this action.
    Although several parties discussed the ZEV program in their 
comments, EPA was clear that no action was being considered for the ZEV 
portions of the Massachusetts LEV program at this time. EPA will take 
action on the ZEV portions of the Massachusetts program in the future 
when Massachusetts adopts and submits to EPA a ZEV program consistent 
with the California ZEV program. Any action in the future on the ZEV 
portion of the Massachusetts program will be through full notice and 
comment rulemaking.
    The Alliance went on to comment that it did not agree with 
Massachusetts', nor presumably California's, plans to mandate advanced 
technology vehicles. Again, EPA is not acting on the ZEV portion of the 
Massachusetts rule, but believes that Massachusetts does have the right 
under section 177, to adopt all portions of a California program which 
is adopted in accordance with the provisions of section 209 of the 
Clean Air Act.

II. Final Action

    EPA is approving a SIP revision at the request of the Massachusetts 
DEP which was adopted on December 24, 1999. It was submitted to EPA for 
approval on August 9, 2002. That submittal was later clarified by 
Massachusetts on August 26, 2002 to exclude certain sections of their 
ZEV program from consideration. In addition, for the reasons outlined 
above, at this time we are not taking action on section 310 CMR 
7.40(2)(a)5 which includes ZEV requirements beginning in model year 
2003. As such, we are approving all of 310 CMR 7.40, the ``Low Emission 
Vehicle Program'' except for 310 CMR 7.40(2)(a)5, 310 CMR 7.40(2)(a)6, 
310 CMR 7.40(2)(c)3, 310 CMR 7.40(10), and 310 CMR 7.40(12). The 
regulations adopted by Massachusetts now include the California LEV II 
motor vehicle emission standards effective in model year 2004, the 
California LEV I medium-duty standards effective in model year 2003, 
and the smog index label specification effective model year 2002. This 
approval will secure all of the emission reductions of the current 
California LEV standards for light and medium duty vehicles. EPA is 
approving Massachusetts' low emission vehicle program requirements into 
the SIP because EPA has found that the requirements are necessary for 
Massachusetts to achieve the NAAQS for ozone and to reduce emissions of 
VOC and NOX from new vehicles in accordance with the 
requirements of the CAA.

III. What Are the Administrative Requirements?

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 February 21, 2003. 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, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.


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    Dated: November 26, 2002.
Robert W. Varney,
Regional Administrator, EPA New England.

    Part 52 of 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 W--Massachusetts

    2. Section 52.1120 is amended by adding paragraph (c)(132) to read 
as follows:


Sec.  52.1120  Identification of plan.

* * * * *
    (c) * * *
    (132) Revisions to the State Implementation Plan regarding the Low 
Emission Vehicle Program submitted by the Massachusetts Department of 
Environmental Protection on August 9 and August 26, 2002.
    (i) Incorporation by reference.
    (A) Letter from the Massachusetts Department of Environmental 
Protection dated August 9, 2002, in which it submitted the Low Emission 
Vehicle Program adopted on December 24, 1999.
    (B) Letter from the Massachusetts Department of Environmental 
Protection dated August 26, 2002 which clarified the August 9, 2002 
submittal to exclude certain sections of the Low Emission Vehicle 
Program from consideration.
    (C) December 24, 1999 version of 310 CMR 7.40, the ``Low Emission 
Vehicle Program'' except for 310 CMR 7.40(2)(a)5, 310 CMR 7.40(2)(a)6, 
310 CMR 7.40(2)(c)3, 310 CMR 7.40(10), and 310 CMR 7.40(12).

    3. In section 52.1167, Table 52.1167 is amended by adding new 
entries to existing state citations for 310 CMR 7.40 to read as 
follows:


Sec.  52.1167  EPA-approved Massachusetts State regulations.

* * * * *

                                                   Table 52.1167.--EPA-Approved Rules and Regulations
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                                                               Date         Date
         State citation                Title/subject        submitted     approved      Federal Register       52.1120(c)        Comments/unapproved
                                                             by State       EPA             citation                                   sections
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                                                                      * * * * * * *
310 CMR 7.40....................  Low Emission Vehicle        12/24/99     12/23/02  [Insert FR citation                132  ``Low Emission Vehicle
                                   Program.                                           from published date].                   Program'' (LEV II) except
                                                                                                                              for 310 CMR 7.40(2)(a)5,
                                                                                                                              310 CMR 7.40(2)(a)6, 310
                                                                                                                              CMR 7.40(2)(c)3, 310 CMR
                                                                                                                              7.40(10), and 310 CMR
                                                                                                                              7.40(12)
 
                                                                     * * * * * * *
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Notes.
1. This table lists regulations adopted as of 1972. It does not depict regulatory requirements which may have been part of the Federal SIP before this
  date.
2. The regulations effective statewide unless otherwise in comments or title section.

[FR Doc. 02-32129 Filed 12-20-02; 8:45 am]
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