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###### Environmental Protection Agency

          - 40 CFR Part 52 
          - [Docket No. EPA-R02-OAR-2006-0920, FRL-8290-1] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Proposed rule. 

# SUMMARY:

The Environmental Protection Agency is proposing to approve a New Jersey state implementation plan revision that adopts California's second generation low emission vehicle program for light-duty vehicles, LEV II. Clean Air Act section 177 sets forth requirements by which other states may adopt new motor vehicle emissions standards that are identical to California's standards. Specifically, the State's implementation plan revision adopts changes to its existing light duty vehicle rule by incorporating California's LEV II program. The intended effect of this action is to approve, as consistent with section 110(a)(2) of the Clean Air Act, a control strategy that will help New Jersey achieve attainment of the National Ambient Air Quality Standard for ozone. 

# DATES:

Comments must be received on or before April 20, 2007. 

# ADDRESSES:

                        Submit your comments, identified by Docket ID No. EPA-R02-OAR-2006-0920, by one of the following methods:                         *http://www.regulations.gov*: Follow the on-line instructions for submitting comments.                     

*E-mail:**Werner.Raymond@epa.gov*.                     

*Fax:*                         212-637-3901.                     

*Mail:*                         Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.                     

*Hand Delivery:*                         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 Docket ID No. EPA-R02-OAR-2006-0920. 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://www.regulations.gov*, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through                         *http://www.regulations.gov*                         or e-mail. The                         *http://www.regulations.gov*                         Web site is an “anonymous access” system, 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                         *http://www.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. For additional information about EPA's public docket visit the EPA Docket Center homepage at                         *http://www.epa.gov/​epahome/​dockets.htm*.                     

# FOR FURTHER INFORMATION CONTACT:

                        Matthew Laurita,                         *laurita.matthew@epa.gov*                         at the Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866, telephone number (212) 637-3895, fax number (212) 637-3901.                     

Copies of the State submittals are available at the following addresses for inspection during normal business hours: 

Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. 

New Jersey Department of Environmental Protection, Public Access Center, 401 East State Street 1st Floor, Trenton, New Jersey 08625. 

# 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 Jersey 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, all 21 counties in New Jersey were designated as nonattainment with respect to the former 1-hour ozone National Ambient Air Quality Standard (NAAQS). The counties were divided into four separate nonattainment areas with ozone attainment deadlines varying by area; however, no counties in New Jersey were redesignated to attainment prior to the revocation of the 1-hour ozone standard on June 15, 2005. On June 15, 2004 all 21 counties in New Jersey were designated as nonattainment with respect to the 8-hour ozone NAAQS as part of either the New York-Northern New Jersey-Long Island, NY-NJ-CT or the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE moderate nonattainment areas. Both of these areas have attainment dates of no later than June 2010. 

                    To bring the state into attainment New Jersey adopted, among other measures, the National Low Emission                           ( print page 13228)                        Vehicle (NLEV) program on February 3, 1999. The NLEV program was a voluntary agreement between EPA, vehicle manufacturers, and the states to introduce vehicles that met emission standards that were more stringent than the Federal Tier 1 standards in effect at the time. The NLEV program would only take effect after all auto manufacturers and a sufficient number of states “opted-in” to the program. EPA made an NLEV in-effect finding on March 2, 1998 (63 FR 11374), after which participating states submitted state implementation plan (SIP) revisions to ensure continuation of the program. New Jersey submitted an NLEV SIP revision on February 22, 1999, and EPA issued a direct final rule to approve New Jersey's NLEV program on November 3, 1999 (64 FR 59638).                 

In January 2004 the New Jersey Legislature passed legislation requiring the New Jersey Department of Environmental Protection to adopt the California low emission vehicle (LEV) program, known as the LEV II program. Pursuant to this legislation, New Jersey promulgated regulations to adopt a LEV program identical to California's LEV II program. New Jersey's regulations became effective on January 27, 2006. On June 2, 2006, New Jersey submitted a SIP revision to EPA, seeking federal approval of the regulations. New Jersey's LEV program will affect light-duty motor vehicles manufactured in model year 2009 and later. 

### B. What are the relevant EPA and CAA requirements? 

Section 209(a) of the CAA prohibits 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 of the section 209(a) prohibition to the State of California, thereby allowing California to adopt its own motor vehicle emissions standards. Section 209(b) of the CAA requires California to 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) further provides 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 CAA section 202(a). 

Section 177 of the CAA allows other states to adopt and enforce California's standards relating to the control of emissions from new motor vehicles, provided that, among other things, such state standards are identical to the California standards for which a waiver has been granted under CAA section 209(b). In addition to the identicality requirement, the state must adopt such standards at least two years prior to the commencement of the model year to which the standards will apply. New Jersey has met the requirements of section 177. 

### C. What is the California LEV II program? 

The California Air Resources Board (CARB) adopted the first generation LEV regulations in 1990, which were effective through the 2003 model year. CARB adopted 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 separate Federal 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 began with the 2004 model year and increase in stringency through the 2010 model year 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 emission limits 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. California has modified the ZEV mandate several times since it took effect. 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 to sell. On December 28, 2006, EPA granted California's request for a waiver of federal preemption to enforce provisions of the ZEV regulations through model year 2011. 

On October 15, 2005, California amended the LEV II program to include greenhouse gas (GHG) emission standards for passenger cars, light-duty trucks, and medium-duty passenger vehicles. On December 21, 2005, California requested that EPA grant a waiver of preemption under CAA section 209(b) for its greenhouse gas emission regulations. As of the date of this Notice, EPA has not taken action on California's request. 

### D. What is the history and current content of the New Jersey LEV Program? 

On February 3, 1999, New Jersey adopted the NLEV program. The NLEV program was a voluntary agreement between EPA, vehicle manufacturers, and the states to introduce vehicles that met emission standards that were more stringent than the Federal Tier 1 standards in effect at the time. The NLEV program would only take effect after all auto manufacturers and a sufficient number of states “opted-in” to the program. EPA made an NLEV in-effect finding on March 2, 1998 (63 FR 11374), after which participating states submitted state implementation plan (SIP) revisions to ensure continuation of the program. New Jersey submitted an NLEV SIP revision on February 22, 1999, and EPA issued a direct final rule to approve New Jersey's NLEV program on November 3, 1999 (64 FR 59638). 

                    On January 27, 2006, New Jersey amended its low emission vehicle program to be identical to California's LEV II program. New Jersey has adopted California's LEV II program, which                           ( print page 13229)                        includes provisions for light-duty, medium-duty and heavy-duty vehicles, by incorporating the California LEV II regulations into the New Jersey Administrative Code by reference.                 

New Jersey is requesting that EPA approve its LEV program regulations as submitted in its SIP submission. EPA's approval would make the program federally enforceable, further ensuring that planned emissions reductions will continue to take place. 

## II. Proposed EPA Action 

EPA is proposing to approve the portion of New Jersey's low emission vehicle program that is identical to the California standards for which a waiver has been granted. However, because the waiver granted for the ZEV portion of the program is limited to model year 2011 and earlier vehicles, EPA is proposing to take no action on the ZEV component. In addition, EPA is proposing to take no action on the greenhouse gas component of the program. 

## 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 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: March 8, 2007. 

Alan J. Steinberg, 

Regional Administrator, Region 2. 

[FR Doc. E7-5157 Filed 3-20-07; 8:45 am] 

BILLING CODE 6560-50-P