[Federal Register Volume 70, Number 81 (Thursday, April 28, 2005)]
[Rules and Regulations]
[Pages 21959-21962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8528]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R01-OAR-2004-ME-0004; A-1-FRL-7900-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; 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 State of Maine on February 25, 2004 and December 9, 
2004 which includes the Maine Low Emission Vehicle (LEV) Program. It 
was proposed for approval on January 24, 2005 (70 FR 3335). EPA 
received an adverse comment on the proposal, which is addressed in this 
action. The regulations adopted by Maine include the California LEV I 
light-duty motor vehicle emission standards beginning with model year 
2001, the California LEV II light-duty 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. The Maine LEV regulation 
submitted does not include any zero emission vehicle (ZEV) 
requirements. Maine 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, they have worked to ensure that their program is identical to 
California's, as required by section 177 of the CAA. The intended 
effect of this action is to approve the Maine LEV program. This action 
is being taken under section 110 of the Clean Air Act.

DATES: Effective Date: This rule will become effective on May 31, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) Docket ID Number R01-OAR-2004-ME-0004. All 
documents in the docket are listed in

[[Page 21960]]

the Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/, once in the system, select ``quick search,'' then key in the 
appropriate RME Docket identification number. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
CBI 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 Office of 
Ecosystem Protection, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, Suite 1100, Boston, MA. 
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.
    Copies of the documents relevant to this action are also available 
for public inspection during normal business hours, by appointment at 
the Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room B-108, 1301 Constitution Avenue, NW., 
Washington, DC; and the Bureau of Air Quality Control, Department of 
Environmental Protection, First Floor of the Tyson Building, Augusta 
Mental Health Institute Complex, Augusta, ME 04333-0017.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, Air Quality Unit, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, (617) 
918-1045, [email protected].

SUPPLEMENTARY INFORMATION: EPA is approving a State Implementation Plan 
(SIP) revision submitted by the State of Maine on February 25, 2004 and 
December 9, 2004 which includes the Maine Low Emission Vehicle (LEV) 
Program. It was proposed for approval on January 24, 2005 (70 FR 3335). 
EPA received an adverse comment on the proposal from PretiFlaherty, a 
law firm representing the Maine Automobile Dealers Association (MADA) 
by letter dated February 22, 2005. MADA had two comments.
    First, MADA argued that ``Maine's LEV program is not consistent 
with the requirement of the Clean Air Act because Maine's program does 
not contain a denial of registration provision.'' And as a result, this 
effects the level of emission reductions from the program and as such 
is not identical to California's program as required by section 177 of 
the Clean Air Act. Second, MADA takes exception to our reference to 
Executive Order 13132, where we assert that this will not affect the 
distribution of power between Maine and EPA under the Clean Air Act, 
because, in MADA's opinion, the fact that it is approved into the SIP 
``gives EPA veto power/approval control over any subsequent amendments 
* * *'' to Maine's regulations.
    On the first point, MADA contends that Maine's enforcement scheme 
is less effective than one which denies registration to new vehicles 
which are not LEV certified. EPA and Maine agree, which is why Maine 
suggested and EPA proposed that Maine should achieve 90 percent of the 
benefit that a program which does deny registration to a vehicle which 
is not certified as LEV. However, the Clean Air Act does not require 
that these LEV programs include registration denial for new vehicles in 
a given State which are not LEV certified. In order to achieve the full 
environmental benefits of the LEV program, California did not and does 
not allow new vehicles which are not LEV certified to be registered in 
their State. When Massachusetts and New York adopted their versions of 
the California LEV program, they enforced it the same way. EPA approved 
those programs into the SIP, and provided those States with emission 
reduction credit assuming all newer vehicles in those States would be 
California certified. Since Maine is not assured of that same fact, it 
was not proposed to be awarded the same amount of credit. (As stated in 
the NPR , EPA currently estimates that a registration-based California 
LEV program will provide about 1 percent additional reductions in 
mobile source VOC and 2 percent in air toxics over the Federal Tier 2 
program in 2020 with the program beginning in 2004. We expect no 
discernible NOX benefit. As such, Maine would achieve about 
a 0.9% VOC and 1.8% air toxic by its implementation of the LEV 
program.)
    Section 177 of the Clean Air Act requires any State which is 
adopting a new motor vehicle emissions program, to adopt standards 
which are identical to those in California. This section does not 
require the adopting State to incorporate all the provisions contained 
in California's emissions program. Enforcement provisions, for example, 
need not be identical. However, section 177 prohibits States from 
adopting any standards which could have the effect of creating a third 
vehicle. As Maine's program is enforced, no such ``third vehicle'' 
would be created by the fact that new Federal tier 2 vehicles might be 
registered in Maine based on their enforcement scheme. It does not 
establish a new standard for vehicle manufacturers to meet. It is also 
instructive to note that, in the cases of California, Massachusetts and 
New York, used vehicles which have more than 7,500 miles on the 
odometer, may be registered in these States, regardless of whether or 
not they are LEV certified. Because of the fact that used vehicles may 
be sold into these States at different rates could effect each 
programs' actual benefits. Further, even minor differences in each 
State's ability to ensure that only California-certified new vehicles 
are registered could also effect each programs' benefits. However, we 
do not believe that this in any way creates a third car or violates the 
intent of section 177 of the CAA regarding identicality.
    It is instructive to note that no automobile manufacturer or 
association supported MADA's contention regarding this issue of 
creating a ``third car.'' EPA does believe that the Federal tier 2 
program is an effective pollution control strategy, achieving most of 
the reductions that the California program achieves. We agree with MADA 
that the Maine LEV program would be more effective in Maine at 
achieving pollution reductions if such a registration-based program 
were implemented. However, EPA does not believe that Maine's lack of 
such an enforcement scheme in any way violates section 177 of the CAA.
    On the second point, we do not agree. EPA is approving an existing 
state rule, and EPA's approval of that rule does not in any way effect 
the rule that has been promulgated by the State. Chapter 127 is 
presently in effect in Maine, and EPA's approval does not impact the 
distribution of power between EPA and Maine, as discussed in Executive 
Order 13132. It is true that if, in the future, Maine utilizes the 
emission reductions from this program as part of its strategy to ensure 
clean air for its citizens as part of its State Implementation Plan 
(SIP), EPA may object to subsequent State-initiated changes to this 
rule which relax the level of pollution reductions from the strategy. 
But EPA would only do so if the State were not replacing the emission 
reductions which were incorporated into the SIP. In all cases, except 
when the Clean Air Act prescribes a specific control measure, States 
are free to modify their air quality strategies in the SIP as long as 
they maintain the level of reductions necessary to achieve its clean 
air

[[Page 21961]]

objectives for its citizens, as provided by section 110(l) of the CAA. 
This is true of the Low Emission Vehicle Program. If the State so chose 
in the future, it may modify this program, subject to the limitation 
described above. But it does not give EPA veto power or approval 
control over subsequent changes to the program, including the entire 
program's repeal.
    Other specific requirements of Maine's program and the rationale 
for EPA's proposed action are explained in the NPR and will not be 
restated here.
    Final Action: EPA is approving a SIP revision at the request of the 
Maine DEP. This version of the rule entitled ``Chapter 127: New motor 
Vehicle Emission Standards'' was adopted by Maine with an effective 
date of December 31, 2000. It was submitted to EPA for approval on 
February 25, 2004. That submittal was later clarified on December 9, 
2004 to justify the level of emission reductions expected from this 
program. This approves the State achieving 90 percent of the credit 
achieved by States that implement the California LEV program through a 
registration-based enforcement system. The regulation adopted by Maine 
includes the LEV I light-duty program beginning with model year 2001 in 
Maine, the California LEV II light-duty 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. EPA is approving the Maine low 
emission vehicle program requirements into the SIP because EPA has 
found that the requirements are consistent with the CAA.

Statutory and Executive Order Reviews

    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 June 27, 2005. 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.

    Dated: April 7, 2005.
Robert W. Varney,
Regional Administrator, EPA New England.

0
Part 52 of chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart U--Maine

0
2. Section 52.1020 is amended by adding paragraph (c)(58) to read as 
follows:


Sec.  52.1020  Identification of plan.

* * * * *
    (c) * * *
    (58) Revisions to the State Implementation Plan submitted by the 
Maine Department of Environmental Protection on February 25, 2004 and 
December 9, 2004 submitting Maine's Low Emission Vehicle Program.
    (i) Incorporation by reference.
    (A) Chapter 127 of the Maine Department of Environmental Protection 
rules entitled ``New Motor Vehicle Emission Standards'' with an 
effective

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date of December 31, 2000, including the Basis Statements and Appendix 
A.

0
3. In Sec.  52.1031 Table 52.1031 is amended by adding a new state 
citation for Maine Chapter 127; ``New Motor Vehicle Emission 
Standards'' to read as follows:


Sec.  52.1031--EPA--approved  Maine regulations.

* * * * *

                                                   Table 52.1031.--EPA-Approved Rules and Regulations
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                                                         Date adopted by      Date approved by     Federal Register
              State                  Title/subject            State                 EPA                citation           52.1020
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                                                                      * * * * * * *
127.............................  New Motor Vehicle    December 31, 2000..  April 28, 2005.....  [Insert FR                  (c)(58)  Low emission
                                   Emission Standards.                                            citiation                            vehicle program,
                                                                                                  published date.                      with no ZEV
                                                                                                                                       requirements.
                                                                                                                                       Program achieves
                                                                                                                                       90% of full LEV
                                                                                                                                       benefits.
 
                                                                     * * * * * * *
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Note.--1. The regulations are effective statewide unless stated otherwise in comments section.

[FR Doc. 05-8528 Filed 4-27-05; 8:45 am]
BILLING CODE 6560-50-P