[Federal Register: April 28, 2005 (Volume 70, Number 81)]
[Rules and Regulations]
[Page 21959-21962]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap05-9]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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, judge.robert@epa.gov.
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
[[Page 21962]]
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date adopted by Date approved by Federal Register
State Title/subject State EPA citation 52.1020
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
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.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
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