[Federal Register Volume 82, Number 67 (Monday, April 10, 2017)]
[Rules and Regulations]
[Pages 17144-17146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07035]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2013-0772; FRL-9960-94-Region 4]


Air Plan Approval; North Carolina; Motor Vehicle Emissions 
Control Program; Correcting Amendment

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: This direct final action, taken under the authority of the 
Clean Air Act (CAA or Act), corrects an error in previously promulgated 
rules approving certain elements of the North Carolina state 
implementation plan (SIP). The error relates to the North Carolina 
SIP's Motor Vehicle Emissions Control Standard rules and the correction 
removes a provision of the State's otherwise federally-enforceable 
regulations that could result in infringement upon the sovereign 
immunity of Federal facilities. The intended effect is to ensure that 
the North Carolina SIP is correctly identified in the applicable part 
of the Code of Federal Regulations and to eliminate the possibility of 
such infringement.

DATES: This direct final rule is effective June 9, 2017 without further 
notice, unless EPA receives adverse comment by May 10, 2017. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2013-0772 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Mrs. Sheckler can be reached via phone at (404) 562-9992 or 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Section 182(b)(4) of the CAA requires areas that are designated as 
moderate, serious, or severe ozone nonattainment to establish a motor 
vehicle inspection and maintenance (I/M) program to ensure that 
specified gasoline-fueled motor vehicles do not exceed prescribed 
emissions thresholds by requiring that vehicles undergo periodic 
emissions testing, including mandatory repairs for vehicles found to 
exceed these thresholds. This emissions testing ensures that vehicles 
are well maintained and operating as designed.
    The North Carolina I/M program began in 1982 in Mecklenburg County 
utilizing a ``tail-pipe'' emissions test. From 1986 through 1991 the 
program expanded to include eight additional counties (Wake, Forsyth, 
Guilford, Durham, Gaston, Cabarrus, Orange and Union County). In 1999, 
the North Carolina General Assembly passed legislation to expand the 
coverage area for the I/M program in order to gain additional emission 
reductions to achieve the 1997 8-hour ozone national ambient air 
quality standards in the State. This legislation expanded the I/M 
program from nine counties to 48 counties by adding several counties 
approximately every six months from July 1, 2003, to July 1, 2006. The 
I/M program in the expanded coverage area used on-board diagnostic 
(OBD) rather than tail-pipe testing. On August 7, 2002, North Carolina 
submitted a SIP revision to amend the I/M regulations included in the 
SIP at that time to, among other things, expand the counties subject to 
the I/M program as discussed above, require OBD in the subject counties 
for all model year (MY) 1996 and newer light duty gasoline vehicles, 
and terminate the tail-pipe testing program on January 1, 2006, for the 
nine counties subject to continued tail-pipe testing of MY 1995 and 
older vehicles.
    EPA approved these changes to North Carolina's I/M program into the 
SIP on October 30, 2002. See 67 FR 66056. North Carolina submitted 
additional SIP revisions related to the State's I/M program on January 
31, 2008, May 24, 2010, October 11, 2013, and February 11, 2014. EPA 
approved North Carolina's January 31, 2008, May 24, 2010, October 11, 
2013, and February 11, 2014, SIP revisions pertaining to state rule 
changes to the State's I/M program on February 5, 2015. See 80 FR 6455.

II. Error Correction

    The CAA sets forth requirements for Federal facilities which are 
located in I/M program areas. These requirements in section 118(c) and 
(d) apply to both Federal fleet and Federal employee vehicles. Congress 
intended in that section that Federal facilities located in I/M program 
areas demonstrate compliance with certain local and State I/M 
requirements. When EPA published the I/M rule in 1992, see 57 FR 52950, 
the Agency interpreted CAA section 118(c) and (d) as a partial waiver 
of the Federal government's sovereign immunity, thereby allowing States 
to regulate Federal facilities in their I/M programs.\1\ Accordingly, 
EPA established certain SIP requirements for Federal facilities in the 
I/M rule. Since that time, the Department of Justice (DOJ) has found 
that sections 118(c) and (d) do not waive sovereign immunity for the 
Federal government and thus states are without authority to enforce the 
section 118(c) and (d) requirements for Federal facilities.\2\ Further, 
DOJ found that the express waiver of sovereign immunity in section 
118(a) extends only to nondiscriminatory requirements (i.e., each 
agency and employee of the Federal government ``shall be subject to, 
and comply with, all Federal, State, interstate, and local 
requirements, administrative authority, and process and sanctions 
respecting the control and abatement of air pollution in the same

[[Page 17145]]

manner, and to the same extent as any nongovernmental entity.''). As 
explained below, section 118(a)'s immunity waiver does not extend to 
State I/M requirements that, like the North Carolina provision at issue 
here, are imposed upon Federal entities in a different manner or to a 
different extent than nongovernmental entities.
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    \1\ See letter from Gay MacGregor, Director, Regional and State 
Programs Division, EPA Office of Air and Radiation, to Mary Jo 
Leugers, Virginia Office of the Attorney General (August 28, 1998) 
(MacGregor Letter).
    \2\ See letter from Lois J. Schiffer, Assistant Attorney 
General, Department of Justice Environment and Natural Resources 
Division, to Scott Fulton, Acting General Counsel, EPA (July 29, 
1998) (Schiffer Letter).
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    North Carolina's regulation 15A NCAC 02D.1002(a)(3) identifies 
vehicles that are operated on a Federal installation and that meet the 
requirements of 40 CFR 51.356(a)(4) as subject to the State motor 
vehicle emission standard. This North Carolina regulation thus subjects 
certain vehicles operated on Federal installations to State I/M 
requirements that do not apply in the same manner and to the same 
extent to nongovernmental entities, and it is inconsistent with the 
waiver of immunity in section 118(a). As noted in the MacGregor Letter 
addressing the issue, removing Federal facility I/M requirements from 
SIPs will in no way impact the emissions reductions credits the States 
earn for their I/M programs; pursuant to section 118(a), Federal 
agencies are required to comply with air pollution control programs to 
the same extent as nongovernmental entities and thus will continue to 
be subject to programs of general applicability. EPA is therefore 
removing from the federally-approved North Carolina SIP regulation 15A 
NCAC 02D.1002(a)(3) because that regulation does not apply to vehicles 
operated on Federal installations in the same manner and to the same 
extent as vehicles owned or operated by nongovernmental entities.

III. Final Action

    Pursuant to CAA section 110(k)(6), EPA rescinds its previous 
approval of NCAC 02D.1002(a)(3), a provision that sets forth additional 
requirements under the vehicle I/M program for motor vehicles operated 
on Federal installations that do not apply to nongovernmental entities 
and thus is inconsistent with CAA section 118(a). This action will not 
result in increases in emissions that would interfere with attainment 
or maintenance of any NAAQS or with any other applicable requirement of 
the CAA.

IV. 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 corrects North Carolina's EPA-approved SIP by removing the 
State's regulation 15A NCAC 02D.1002 (a)(3), which listed Federal 
facilities as applicable to the state motor vehicle emission standard 
and 40 CFR 51.356(a)(4), by removing it from the federally-approved 
portion of the North Carolina SIP to be consistent with CAA 118. It 
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.). 
Furthermore, this action 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 rule 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). This rule merely removes North Carolina 
regulation 15A NCAC 02D.1002 (a)(3) from the federally approved portion 
of the North Carolina SIP to be consistent with CAA 118; it also 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 addition, this 
rule does not involve technical standards, 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 also 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 9, 2017. 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 CAA 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: March 15, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart II--North Carolina

0
2. Section 52.1770(c) is amended by revising the entry for ``Sect 
.1002'' to read as follows:


Sec.  52.1770  Identification of plan.

* * * * *
    (c) * * *

[[Page 17146]]



                                Table 1--EPA Approved North Carolina Regulations
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                                                            State
         State citation              Title/subject     effective date    EPA approval date       Explanation
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                                Subchapter 2D Air Pollution Control Requirements
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                                                  * * * * * * *
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                             Section .1000 Motor Vehicle Emissions Control Standards
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                                                  * * * * * * *
Sect .1002.....................  Applicability.......        1/1/2014  4/10/2017 [Insert     Paragraph (a)(3) of
                                                                        Federal Register      Section .1002 is
                                                                        citation].            hereby rescinded
                                                                                              as this paragraph
                                                                                              is inconsistent
                                                                                              with the limits on
                                                                                              the waiver of
                                                                                              sovereign immunity
                                                                                              established in
                                                                                              section 118(a) of
                                                                                              the CAA.
 
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[FR Doc. 2017-07035 Filed 4-7-17; 8:45 am]
BILLING CODE 6560-50-P