[Federal Register Volume 69, Number 185 (Friday, September 24, 2004)]
[Proposed Rules]
[Pages 57241-57244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21497]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. R02--OAR-2004--NY-0002, FRL-7818-3]


Approval and Promulgation of Implementation Plans; New York; Low 
Emission Vehicle Program

AGENCY: Environmental Protection Agency.

ACTION: Proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a New York State State Implementation Plan (SIP) revision which 
adopts California's second generation low emission vehicle program for 
light-duty vehicles, (LEV II). Clean Air Act Section 177 allows states 
to adopt motor vehicle emissions standards that are identical to 
California's and New York meets this requirement. Specifically, the 
State's SIP revision adopts changes to its existing LEV rule by 
incorporating a non-methane hydrocarbon standard and various 
administrative and grammatical changes to make its existing LEV rule 
identical to California's LEV II program.

DATES: Comments must be received on or before October 25, 2004.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R02-OAR-2004-NY-0002 by one of the following 
methods:
    I. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    II. Agency Web site: http://docket.epa.gov/rmepub/ Regional

[[Page 57242]]

Material in EDocket (RME), EPA's electronic public docket and comment 
system, is EPA's preferred method for receiving comments. Once in the 
system, select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    III. E-mail: [email protected].
    IV. Fax: (212) 637-3901.
    V. Mail: ``RME ID Number R02-OAR-2004-NY-0002,'' Raymond Werner, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    VI. Hand Delivery or Courier. Deliver your comments to: Raymond 
Werner, Chief, Air Programs Branch, Environmental Protection Agency, 
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.
    Instructions: Direct your comments to Regional Material in EDocket 
ID Number R02-OAR-2004-NY-0002. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at http://docket.epa.gov/rmepub/, including 
any personal information provided, unless the comment includes 
information claimed to be Confidential Business Information or other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be Confidential Business Information 
or otherwise protected through Regional Material in EDocket, 
regulations.gov, or e-mail. The EPA Regional Material in EDocket Web 
site and the federal regulations.gov Web site are ``anonymous access'' 
systems, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through Regional 
Material in EDocket or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Material in EDocket index at http://docket.epa.gov/rmepub/. 
Although listed in the index, some information is not publicly 
available, i.e., Confidential Business Information or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in Regional Material in 
EDocket or in hard copy at the Air Programs Branch, Environmental 
Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, 
New York 10007-1866. EPA requests that if at all possible, you contact 
the contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Andrew A. Bascue, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4249 or [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Description of the SIP Revision
    A. Background
    B. What are the relevant EPA and CAA requirements?
    C. What is the California LEV Program?
    D. What is the History and Current Content of the New York LEV 
Program?
II. Proposed EPA Action
III. Statutory and Executive Order Reviews

I. Description of the SIP Revision

A. Background

    Under the Clean Air Act (CAA) Amendments of 1990, the New York-
Northern New Jersey-Long Island Nonattainment Area was designated as 
severe nonattainment of the 1-hour ozone National Ambient Air Quality 
Standards (NAAQS). The New York counties that are part of the 
Nonattainment Area include Bronx, Kings, Nassau, New York, Putnam, 
Queens, Richmond, Rockland and Westchester and the lower Orange County 
towns of Chester, Minisink, Monroe, Tuxedo, Warwick and Woodbury, which 
for the purposes of this proposed rulemaking will be referred to as the 
New York Metropolitan NAA. The ozone attainment deadline for this area 
is November 15, 2007.
    To bring the New York Metropolitan NAA into attainment New York 
adopted, among other measures, a Clean Fuel Fleet program, which was 
later replaced by a low emission vehicle (LEV) program identical to 
California's LEV I program. New York first adopted its LEV program in 
1994 and EPA issued a direct final rule to approve the New York LEV 
program effective as of February 6, 1995 (60 FR 2025). Since that time 
New York has modified its LEV program to be consistent with and to 
maintain identicality to California's LEV program, which has undergone 
several changes over the years. The current version of the New York LEV 
program is intended to be identical to California's current LEV 
program.

B. What Are the Relevant EPA and CAA Requirements?

    Section 209(a) of the CAA preempts states from adopting or 
enforcing standards relating to the control of emissions from new motor 
vehicles or new motor vehicle engines. However, under section 209(b) of 
the CAA, EPA may grant a waiver to the State of California to adopt its 
own motor vehicle emissions standards. Section 209(b) of the CAA states 
that California must show that its standards will be: ``* * * in the 
aggregate, at least as protective of public health and welfare as 
applicable Federal standards * * *''. Section 209(b) goes on to state 
that EPA will grant a waiver unless it finds that: (1) The State's 
determination is arbitrary and capricious, (2) the State ``does not 
need such State standards to meet compelling and extraordinary 
conditions,'' or (3) the State's standards and accompanying enforcement 
procedures are not consistent with section 202(a) of the CAA.
    Section 177 of the CAA allows other states to adopt and enforce 
California motor vehicle emission standards. The state must show that 
the standards are identical to California's and must adopt such 
standards at least two years prior to the commencement of the model 
year to which the standards will apply. New York has met both of these 
requirements.

C. What Is the California LEV II Program?

    The California Air Resources Board (CARB) adopted the first 
generation low emissions vehicle (LEV I) regulations in 1990, which 
were effective through the 2003 model year. CARB adopted

[[Page 57243]]

California's second generation LEV regulations (LEV II ) following a 
November 1998 hearing. Subsequent to the adoption of the LEV II program 
in February 2000, the U.S. EPA adopted its own standards known as the 
Tier 2 regulations (65 FR 6698). In December 2000, CARB modified the 
LEV II program to take advantage of some elements of the Federal Tier 2 
regulations to ensure that only the cleanest vehicle models would 
continue to be sold in California. EPA granted California a waiver for 
its LEV II program on April 22, 2003 (68 FR 19811).
    The LEV II regulations expand the scope of the LEV I regulations by 
setting strict fleet-average emission standards for light-duty, medium-
duty (including sport utility vehicles) and heavy-duty vehicles. The 
standards would begin with the 2004 model year and increase in 
stringency through 2010 and beyond. The LEV II regulations provide 
flexibility to auto manufacturers by allowing them to certify their 
vehicle models to one of several different emissions standards. The 
different tiers of increasingly stringent LEV II emission standards to 
which a manufacturer may certify a vehicle are: low-emission vehicle 
(LEV), ultra-low-emission vehicle (ULEV), super-ultra low-emission 
vehicle (SULEV), partial zero-emission vehicle (PZEV), advanced 
technology partial zero-emission vehicle (ATPZEV) and zero-emission 
vehicle (ZEV).
    The manufacturer must show that the overall fleet for a given model 
year meets the specified phase-in requirements according to the fleet 
average non-methane hydrocarbon requirement for that year. The fleet 
average non-methane hydrocarbon requirements are progressively lower 
with each model year. The program also requires auto manufacturers to 
include a ``smog index'' label on each vehicle sold, which is intended 
to inform consumers about the amount of pollution coming from that 
vehicle relative to other vehicles.
    In addition to the LEV II requirements, minimum percentages of 
passenger cars and the lightest light-duty trucks marketed in 
California by a large or intermediate volume manufacturer must be ZEVs; 
this is referred to as the ZEV mandate. The ZEV mandate has undergone 
several modifications through the years in California. Most recently, 
CARB has put in place an alternative compliance program (ACP) to 
provide auto manufacturers with several options to meet the ZEV 
mandate. The ACP established ZEV credit multipliers to allow auto 
manufacturers to take credit for meeting the ZEV mandate by selling 
more PZEVs and ATPZEVs than they are otherwise required.

D. What Is the History and Current Content of the New York Low Emission 
Vehicle Program?

    Section 182(c)(4)(A) of the CAA requires certain states, including 
New York, to submit for EPA approval a State Implementation Plan (SIP) 
revision that includes measures to implement the Clean Fuel Fleet 
program (CFFP). Section 182(c)(4)(B) of the CAA allows states to ``opt 
out'' of the CFFP by submitting for EPA approval a SIP revision 
consisting of a program or programs that will result in at least 
equivalent long term reductions in ozone precursors and toxic air 
emissions as achieved by the CFFP. In 1994, New York opted out of the 
CFFP, promulgating its LEV program in New York State Code of Rules and 
Regulations Part 218, ``Emission Standards for Motor Vehicles and Motor 
Vehicle Engines''. EPA approved the light-duty portion of New York's 
LEV program on January 6, 1995 (60 FR 2022), which was identical to 
California's LEV program.
    Most recently, New York has amended its LEV program to be identical 
to California's LEV II program. New York has adopted California's LEV 
II program by reference, which includes provisions for light-duty, 
medium-duty and heavy-duty vehicles and an ACP identical to those in 
California's program. New York has also adopted its own ACP, which is 
specific to New York State and gives auto manufacturers an additional 
level of flexibility in meeting the ZEV mandate beyond the flexibility 
provided by the ACP in California's program.
    In the current action, New York is requesting that EPA take action 
on the light-duty portion of its LEV program without the ZEV mandate or 
the associated ACP segments. The State has already taken emissions 
reduction credit for the light-duty portion of its LEV program; EPA 
approved that credit as part of our approval of New York's attainment 
demonstration SIP revision on February 4, 2002 (67 FR 5170). The State 
showed that its LEV program will meet necessary emissions reductions 
without relying on its ZEV sales mandate (i.e., since the emission 
reductions are already assured by the fleet average emissions 
standard). In the current SIP revision, New York is requesting Federal 
approval of the program regulation. EPA's approval would make the 
program Federally-enforcable--further ensuring that planned emissions 
reductions will continue to take place.

II. Proposed EPA Action

    EPA is proposing to approve the light-duty vehicle portion of New 
York's LEV program without the ZEV mandate or associated ACP segments, 
since the State has sought approval only for the light-duty portion of 
the program. Approval of this program will further ensure that planned 
reductions attributable to this program, as detailed in New York's 1-
hour ozone attainment demonstration, will be achieved. The State 
adopted the program on December 13, 2000, as noticed in the New York 
State Register.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed 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

[[Page 57244]]

Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This proposed 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 CAA. 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 CAA. 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 proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 14, 2004.
Jane M. Kenny,
Regional Administrator, Region 2.
[FR Doc. 04-21497 Filed 9-23-04; 8:45 am]
BILLING CODE 6560-50-P