RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 121 AND 126]
New Motor Vehicle Emissions Control Program
[28 Pa.B. 5973] The Environmental Quality Board (Board) by this order amends Chapters 121 and 126 (relating to general provisions; and mobile sources) to read as set forth in Annex A.
The final rulemaking establishes a new motor vehicle emissions control program designed to reduce emissions of carbon monoxide (CO), nitrogen oxides (NOx) and volatile organic compounds (VOCs) from new passenger cars and light-duty trucks. These amendments create the mechanism to meet the requirements of the State opt-in provisions of the National Low Emission Vehicle (NLEV) program. These amendments also adopt and incorporate by reference certain requirements of the low-emissions vehicle program authorized under section 177 of the Federal Clean Air Act (CAA) (42 U.S.C.A. § 7507) (Section 177). The amendments will allow automobile manufacturers to voluntarily comply with the NLEV program as an alternative to complying with the Pennsylvania Clean Vehicles Program requirements.
The order was adopted by the Board at its meeting of September 15, 1998.
A. Effective Date
These amendments are effective immediately upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Arleen Shulman, Chief, Mobile Sources Section, Division of Air Resource Management, Rachel Carson State Office Building, 12th Floor, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-4310, or R. A. Reiley, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.
Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final rulemaking is available through the Department of Environmental Protection (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
This action is made under the authority of section 5(a)(1) of the Air Pollution Control Act (act) (35 P. S. § 4005(a)(1)), which grants to the Board the authority to adopt rules and regulations for the prevention, control, reduction and abatement of air pollution in this Commonwealth. The Board is also expressly authorized by section 5(a)(7) of the act to adopt regulations designed to reduce emissions from motor vehicles.
D. Background and Summary
The most persistent air pollution problem in this Commonwealth is ground level ozone. Ozone causes health problems because it damages lung tissue, reduces lung function and sensitizes the lungs to other irritants. Exposure to ozone for several hours at relatively low concentrations has been found to significantly reduce lung function and induce respiratory inflammation in normal, healthy people during exercise. This decrease in lung function generally is accompanied by symptoms including chest pain, coughing, sneezing and pulmonary congestion.
Motor vehicles primarily emit three pollutants--CO, VOCs and NOx. Ozone is not directly emitted by motor vehicles, but is created as a result of the chemical reaction of NOx and VOCs, in the presence of light and heat, to form ozone in air masses traveling over long distances. Because of the higher temperatures in the summer months, the formation of ozone is greater at that time of year. One third of this Commonwealth's ozone pollution comes from motor vehicles.
The CAA was amended in 1977 to allow states to adopt emission standards for motor vehicles. Section 177 of the CAA authorizes states to adopt and enforce new motor vehicle emission standards for any model year if the standards are identical to the California standards and the state adopts the standards at least 2 years before the commencement of the model year. California's standards must also have been granted a waiver under section 209(b) from the CAA's prohibition against state emission standards. (42 U.S.C.A. § 7543(b)).
Congress amended Section 177 in 1990 to prohibit states from taking any action that would have the effect of creating a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards or otherwise create a ''third vehicle.'' Shortly thereafter, many states began to consider clean vehicle or ''low emission vehicle'' (LEV) programs as a control strategy to achieve and maintain the National Ambient Air Quality Standard (NAAQS) for ozone.
Congress also recognizes that ground level ozone is a regional problem not confined to state boundaries. Section 184 of the CAA (42 U.S.C.A. § 7511c), establishes the Northeast Ozone Transport Commission (OTC) to assist in developing recommendations for the control of interstate ozone air pollution. The Commonwealth is a member OTC State.
Several years ago, the auto manufacturers, OTC states and the EPA began negotiations for a voluntary alternative LEV program described as the ''49-State LEV Program'' or NLEV program. Under this alternative LEV program, auto manufacturers would voluntarily agree to manufacture LEVs for 49 states as an alternative to the California LEV program. However, section 202(b)(1)(C) of the CAA (42 U.S.C.A. § 7521(b)(1)(C)) precludes the EPA from mandating new exhaust emission standards before the 2004 model year. Therefore, states and the auto manufacturers must voluntarily agree to accept the NLEV program as a compliance alternative to Section 177 state LEV programs.
On June 6, 1997, the EPA promulgated the first of two NLEV final rules. (62 F. R. 31192). The first rule establishes the basic framework for the voluntary program. It allows auto manufacturers to comply with tailpipe standards modeled after the California program, but provides less stringent fleet average nonmethane organic gases (NMOG) standards. The rule also provides for Federal implementation of the program.
The NLEV program allows manufacturers to certify light-duty vehicles and light-duty trucks certified by the California Air Resources Board (CARB) to one of the following certification standards: Tier 1; transitional low emission vehicle (TLEV); low emission vehicle (LEV); ultra-low emission vehicle (ULEV); or zero-emission vehicle (ZEV). These certification categories contain tailpipe emission standards for CO, formaldehyde, NOx, NMOG and particulate matter (PM).
On January 7, 1998, the EPA promulgated a second, supplementary rule to conclude the Federal regulatory steps necessary to set up the NLEV program. (63 F. R. 926). This rule addresses the NLEV opt-in and opt-out procedures for auto manufacturers and OTC states.
Under this rule, OTC states commit to the NLEV program when: (1) the Governor and Secretary for environmental protection by letter indicate the state's intent to opt into the NLEV program; and (2) the state submits a State Implementation Plan (SIP) revision that incorporates its commitment to the NLEV program in state regulations, which the EPA will approve into a Federally enforceable SIP.
On January 26, 1998, the Commonwealth indicated its intent to opt into the NLEV program through letters submitted to the EPA by Governor Tom Ridge and the Department's Secretary James Seif. This final rulemaking incorporates that intent into State regulations.
Auto manufacturers opt into the NLEV program by submitting a written notification, signed by the Vice President for Environmental Affairs (or another company official who is authorized to bind the company to the NLEV program) that unambiguously states that the manufacturer opts into the program, subject only to conditions expressly contained in the regulations.
The final rulemaking also sets forth specific regulatory language it requests OTC states to use in the promulgation of its regulations. Because the OTC states and auto manufacturers are signing up for a voluntary program, using the specified language ensures that they sign up for the same program. Otherwise, the opt-ins might not represent agreement on the terms and conditions of the voluntary NLEV program.
If OTC states use the language specified, the EPA will be able to find the NLEV program in effect without the need for further rulemaking. Moreover, the EPA will be able to find that an OTC states' SIP revision meets the NLEV SIP requirements without further rulemaking. More importantly, an approved SIP revision is Federal law and has binding legal effect. It is this binding legal effect that makes the NLEV program enforceable for the EPA to grant states credits for SIP purposes. Finally, the importance of ensuring that all parties know what they are signing up for at the time of opt-in also supports the requirement for OTC states to use this exact language for the SIP revisions.
This specific regulatory language was not available to the Board when it published its proposed rulemaking at 27 Pa.B. 6303 (November 29, 1997). This EPA approved language is now available and it is in the final rulemaking.
The NLEV rule allows auto manufacturers to opt out of the NLEV program if an OTC state does any of the following: (1) takes final action in violation of its commitment to allow the NLEV program as a compliance alternative to a Section 177 program or to a ZEV mandate (in those OTC states without existing ZEV mandates); (2) fails to submit an NLEV SIP revision within the time frame set forth in the NLEV regulations; (3) submits an inadequate NLEV SIP revision; (4) takes final action (by an OTC state without an existing ZEV mandate) adopting a ZEV mandate effective during the state's commitment to the NLEV program; or (5) opts out of the NLEV program.
Manufacturers may also opt out if another manufacturer opts out, or if the EPA fails to consider in-use fuel issues or changes certain NLEV emission standards.
The NLEV rule also allows OTC states to opt out of the NLEV program under the following two circumstances: (1) if an auto manufacturer were to opt out of the NLEV program; or (2) the EPA were to find that circumstances had changed which would have altered the EPA's initial determination that the NLEV program would produce emissions reductions equivalent to OTC state Section 177 programs.
The EPA's supplementary rule also addresses the issue of when under Section 177 the 2 year lead time period would start if a state with a backstop Section 177 Program were to delete the NLEV program (either in violation of its commitment to the NLEV program or legitimately by opting out) or if a manufacturer legitimately decided to opt out of the NLEV program. This interpretation of Section 177 applies only in the context of the NLEV program and only in the special circumstances that arise when a state has a backstop Section 177 program that allows the NLEV program as a compliance alternative.
The EPA determined that the NLEV program was officially in effect on March 2, 1998. (63 F. R. 11374, March 9, 1998). Nine northeastern states and 23 auto manufacturers opted into the NLEV program. Therefore, auto manufacturers must comply with the tailpipe emission standards and annual fleet average NMOG value established by the EPA's final NLEV rule.
This final rulemaking establishes the NLEV program as a compliance alternative to the Clean Vehicles Program and will serve as a mechanism to control new motor vehicle emissions in this Commonwealth. Under the authority of Section 177 of the CAA, these final amendments also establish the Pennsylvania Clean Vehicles Program that adopts and incorporates by reference the LEV program of California as a ''backstop'' to the NLEV program. This program will only be implemented if an auto manufacturer opts out of the NLEV program or at the conclusion of the NLEV program. The Board incorporates by reference new emission standards for passenger cars and light-duty trucks that are identical to the low emission standards adopted by California except for the ZEV production mandate and the emissions control warranty systems statement provisions.
The Pennsylvania Clean Vehicles Program does not mandate the sale or use of reformulated motor fuels that comply with the specifications for reformulated motor fuels mandated by the state of California. The courts have held that a state's failure to adopt California fuel requirements does not violate the Section 177 requirement that state emission standards be ''identical to the California standards for which a waiver has been granted.'' (42 U.S.C.A. § 7507). Motor Vehicle Manufacturers Association of the United States v. New York State Department of Environmental Conservation, 17 F.3d 521 (2nd Cir. 1994); American Automobile Manufacturers Association v. Greenbaum, No. 93-10799-MA (D. Mass. October 27, 1993) aff'd., 31 F.3d 18 (1st Cir. 1994).
In addition, the Pennsylvania Clean Vehicles Program does not incorporate the California ZEV production mandate. Section 177 does not require adoption of all California standards, but only requires that if a state adopts motor vehicle standards that those standards adopted be identical to the California standards. The EPA concludes that states adopting a Section 177 program need not adopt the ZEV mandate to comply with the requirements for identical standards under Section 177. (60 F. R. 4712, January 24, 1995).
This final rulemaking allows the Board to revise the Commonwealth's SIP to identify the NLEV program as an alternative to complying with the LEV standards of California specified in the Pennsylvania Clean Vehicles Program requirements. The NLEV program establishes emission requirements for light-duty vehicles and light-duty trucks rated at 6,000 pounds or less gross vehicle weight (GVW) (if designed to operate on gasoline).
The EPA provides several specified and limited conditions that allow auto manufacturers or states to opt-out of the NLEV program. These conditions are structured to maximize the stability of the NLEV program. If an auto manufacturer opts out of the NLEV program according to the opt out procedures in the NLEV regulations, and the opt out is effective, that manufacturer would be subject to the requirements of the Commonwealth's Section 177 program.
The EPA also includes provisions that govern any transition from the NLEV program to a state Section 177 Program in the event of an opt-out. The earliest date on which a transition could occur is governed by the 2 year lead time requirement under the CAA. Therefore, the earliest the Pennsylvania Clean Vehicles Program requirements could apply to auto manufacturers that opt-out would be to engine families for which production begins after the date 2 calendar years from the effective date of the final rule. Auto manufacturers can also opt out with a later effective date for their opt out.
At the end of the Commonwealth's participation in the NLEV program, auto manufacturers may no longer use it as a compliance alternative to the Pennsylvania Clean Vehicles Program. The Commonwealth's NLEV program participation ends with model year 2006. However, if by December 15, 2000, the EPA does not promulgate the next generation of Federal new car standards (Tier 2 standards) that are at least as stringent as the NLEV standards, and that would go into effect no later than model year 2006, the Commonwealth's participation in the NLEV program ends with model year 2004. Since neither the Federal Tier 2 nor the California post-2004 standards have yet been established, it is presently uncertain which program would be more appropriate for the Commonwealth in the middle of the next decade. Therefore, the Board intends to reassess the air quality needs and emission reduction potential of both programs well in advance of the end of the Commonwealth's commitment to the NLEV program.
This regulation will also be submitted to the EPA as a substitute for the Clean Fuel Fleet program required under sections 182(c)(4) and 246 of the CAA. (42 U.S.C.A. §§ 7511a(c)(4) and 7586).
The Department of Environmental Protection (Department) consulted with the Air Quality Technical Advisory Committee (AQTAC) on the final rulemaking. On May 29, 1998, AQTAC recommended that this rulemaking be submitted to the Board for consideration. As required under section 5(a)(7) of the act, the Department also consulted with the Pennsylvania Department of Transportation (PennDOT) during the development of these amendments.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board received four sets of comments on the regulatory proposal. The following summarizes the major issues and the Board's responses.
All commentators support participation in the NLEV program. One enthusiastically supported the Section 177 backstop program and two did not oppose the backstop. The auto manufacturers specified that they do not support the creation of the Pennsylvania Clean Vehicles Program as a backstop to the NLEV program. In the final rulemaking, the Board plans to retain the Pennsylvania Clean Vehicles Program and the NLEV program as a compliance alternative. Under Section 177 of the CAA, the backstop program is the only program that a state may establish by regulation. It is the backstop that creates the legal mechanism to establish the voluntary NLEV program in this Commonwealth. The Board believes the Pennsylvania Clean Vehicles Program is necessary to ensure that clean vehicles are sold in this Commonwealth for the duration of the Commonwealth's commitment to the NLEV program and thereafter.
One commentator believed that the Pennsylvania Clean Vehicles Program will increase consumer and administrative costs. The Board agrees that costs will increase slightly, but air quality will improve measurably, making the program a cost effective emission reduction strategy.
One commentator stated that the emission reduction estimates used by the Board are outdated. The Board understands that estimates will change as more information, and better estimation tools become available. Refined estimates of emission reductions from the NLEV program will be made when the Commonwealth includes the NLEV program in its Rate-of-Progress SIP.
One commentator was concerned that the technology used in the Pennsylvania Clean Vehicles Program will only achieve its greatest emissions reduction potential with low sulfur burning gasoline and consequently the backstop program should be abandoned. It is the backstop that creates the legal mechanism to establish the voluntary NLEV program in this Commonwealth. Consequently, the backstop cannot be abandoned. Moreover, the Board does not agree that it is a valid reason to dispense with the backstop provision. Both LEV and NLEV vehicles are certified to similar emission standards. Therefore, what is true about one vehicle is true about the other vehicle. In addition, the Commonwealth is precluded from requiring the low sulfur gasoline program in California, and the EPA continues to address the issue of low sulfur fuels on a National basis.
One commentator believed that in-use surveillance testing should be applied across this Commonwealth to assure that the benefits of the program are long term. The Board intends for testing results to be applied Statewide. Under the NLEV program, the in-use surveillance will be performed solely by the EPA as is current practice for Federal motor vehicle emission standards. If the Pennsylvani Clean Vehicles Program is implemented, the Board will utilize the program to assure that the benefits are long-term and Statewide.
Two commentators commended the Commonwealth for ensuring that the fuel requirements and zero emission vehicle mandates are not included in the proposal. The Board agrees that neither provision is appropriate and that the EPA will address fuel requirements on a National level.
One commentator thought that a single State fleet NMOG average provision is burdensome and not necessary. The Commonwealth is allowed to adopt only those standards authorized under Section 177 of the CAA. Accordingly, this includes the fleet NMOG average required by California for that model year.
One commentator did not oppose the Commonwealth using the California emission standards as a backstop to the NLEV program, but requested what other alternatives the Commonwealth can employ. Section 177 of the CAA precludes the Commonwealth from adopting its own emission standards. Therefore, except for the California standards, there are no other emission standards that can be used as a backstop to the NLEV program.
One commentator found that the regulations do not clearly indicate the procedures the Commonwealth may use if it chooses to opt out of the NLEV program. This commentator believed that if the Commonwealth does opt out of the NLEV program, it will need to promulgate a regulation that deletes the provisions relating to the NLEV program. This final rulemaking authorizes implementation of the NLEV program in this Commonwealth. As such, this authorization can only be revised through the regulatory process.
One commentator questioned the relevance of and need for having fleet average sales reports for California. Upon further consideration, the Board has deleted the requirement for fleet average sales reports from California.
F. Summary of Regulatory Requirements
This final rulemaking establishes the requirements for the implementation of a new motor vehicle emissions control program in this Commonwealth. The final rulemaking allows auto manufacturers to comply with the provisions of the NLEV program as an alternative to the low emission vehicle standards established under the Pennsylvania Clean Vehicles Program. A summary of the final rulemaking follows:
Chapter 121. General Provisions The amendments to § 121.1 (relating to definitions) include terms and phrases applicable to the Pennsylvania Clean Vehicles Program. In part, the definitions include the following terms: ''CARB--California Air Resources Board,'' ''Clean Vehicles Program,'' ''dealer,'' ''fleet average,'' ''GVWR--gross vehicle weight rating,'' ''motor vehicle manufacturer,'' ''model year,'' ''motor vehicle,'' ''NLEV--National Low Emission Vehicle,'' ''NLEV Program,'' ''new motor vehicle or new light-duty vehicle,'' ''offset vehicle,'' ''passenger car,'' ''ultimate purchaser'' and ''ZEV--Zero-Emission Vehicle.''
The definition of the term ''emergency vehicle'' is consistent with the statutory definition of ''emergency vehicle'' codified in 75 Pa.C.S. § 102 (relating to definitions).
The definitions ''ATV--Advanced Technology Vehicle'' and ''emission standard'' are deleted because neither term is referred to in the final rulemaking.
The rulemaking also amends the existing definition of ''light-duty truck'' to include a meaning in the ''light-duty truck'' definition that is consistent with Title 13 CCR Section 1900(b)(8). For purposes of the new motor vehicle emissions control program requirements, a ''light-duty truck'' means any motor vehicle rated at 6,000 pounds GVW or less, which is designed primarily for purposes of transportation of property or is a derivative of a vehicle, or is available with special features enabling off-road or off-highway operation and use.
Chapter 126. Mobile Sources
Subchapter D. New Motor Vehicle Emissions Control Program Subchapter D contains provisions that establish a new motor vehicle emissions control program in this Commonwealth to reduce the emissions of CO, NOx and VOCs from passenger cars and light-duty trucks under Section 177 of the CAA. It also provides the regulatory framework to allow auto manufacturers to comply with the NLEV program requirements as an alternative to the Section 177 emission standards and to meet the requirements of the State opt-in provisions of the NLEV program.
Section 126.401 (relating to purpose), consistent with and under the authority of Section 177 of the CAA, establishes the Pennsylvania Clean Vehicles Program. It adopts and incorporates by reference certain provisions of the California LEV Program that serve as the basic framework for the Pennsylvania Clean Vehicles Program. The rule also recognizes the voluntary NLEV program as an acceptable compliance alternative to the Pennsylvania Clean Vehicles Program established under this subchapter. In addition, the final rulemaking deletes a duplicative regulatory provision.
Section 126.402 (relating to NLEV scope and applicability) allows motor vehicle manufacturers to comply with the NLEV program requirements as an alternative to the Section 177 program requirements of the Pennsylvania Clean Vehicles Program. The NLEV program requirements are applicable as a compliance alternative for passenger cars and light-duty trucks up through 6,000 pounds GVWR, or medium-duty trucks from 6,001 to 14,000 pounds if designed to operate on gasoline. The use of the NLEV program as a compliance alternative for the auto manufacturers was triggered on March 2, 1998, when the EPA found the NLEV program in effect. Consequently, the proposed language that set forth the contingency of the NLEV program ''being in effect'' is deleted.
In addition, the proposed language that states the condition of the NLEV program as ''no longer in effect'' is no longer accurate because the EPA, in its final supplementary rule, structured the program so that no single event automatically terminates the NLEV program. The EPA will make the NLEV program available as long as one or more manufacturers wish to remain in the program. Accordingly, the proposed language that set forth this condition is deleted.
This section includes a provision that the NLEV program is available as a compliance alternative to covered auto manufacturers that do not opt out of the NLEV program. However, if a covered auto manufacturer opts out of the NLEV program, and that opt out is effective, it is then subject to the Section 177 program requirements of this subchapter. The transition from the NLEV program to the Pennsylvania Clean Vehicles Program is governed by the EPA NLEV regulations provided under 40 CFR 86.1707 which are incorporated by reference.
In addition, this section also provides that the Pennsylvania Clean Vehicles Program applies to all applicable motor vehicles starting with the model year beginning 2 years after the effective date of this final rulemaking. The CAA allows a state to adopt Section 177 standards so long as it provides auto manufacturers with a 2 year lead time. Therefore, this 2-year lead time provision was added to be consistent with Federal law.
Finally, this section incorporates the specific language recommended by the EPA in its final supplementary rule. This additional language will enable the EPA to find that Pennsylvania's SIP revision meets the NLEV SIP requirements. This additional language will also enable the EPA to approve the revision to Pennsylvania's SIP without further rulemaking. Moreover, this language was not available to the Board at the time the proposed rulemaking was published. Consequently, this section is revised to accommodate the EPA language.
Section 126.402(b) incorporates this specific language and commits the Commonwealth to participate in the NLEV program until model year 2006, except as provided in the NLEV regulatory State opt-out provisions. However, if by December 15, 2000, the EPA has not issued mandatory Tier 2 standards, at least as stringent as the NLEV standards, that would go into effect no later than model year 2006, the Commonwealth is committed to participate in the NLEV program only until model year 2004, except as provided in the NLEV regulatory provisions for state opt outs.
Section 126.402(c) also incorporates this specific language and provides that for the duration of the Commonwealth's commitment to the NLEV program, the auto manufacturers may comply with NLEV or mandatory Federal Tier 2 standards of at least equivalent stringency as a compliance alternative to the Pennsylvania Clean Vehicles Program standards that are applicable to passenger cars, light-duty or medium-duty trucks if designed to operate on gasoline.
Finally, § 126.402(e) incorporates this specific language and acknowledges that if a covered auto manufacturer opts out of the NLEV program under the opt-out provisions in the NLEV regulations, the transition from the NLEV program to the Pennsylvania Clean Vehicles Program is governed by the NLEV regulations which are incorporated by reference.
Section 126.411 (relating to general requirements) contains the provisions for the implementation of the Pennsylvania Clean Vehicles Program under the authority of and consistent with Section 177 of the CAA. This section adopts and incorporates by reference certain emission standards that are applicable in California. The rule adopts and incorporates by reference Title 13 CCR Chapter 1 (relating to motor vehicle pollution control devices) and Chapter 2 (relating to enforcement of vehicle emission standards and surveillance testing). This incorporation by reference includes exhaust emission standards for transitional low emission vehicles, low emission vehicles and ultra-low emission vehicles. However, the Pennsylvania Clean Vehicles Program does not adopt and incorporate the reformulated fuels component of the California LEV program. The final rule also changes the order of the subsection from the proposed rulemaking.
The Pennsylvania Clean Vehicles Program does not mandate the sale of ZEVs. Therefore, the final rulemaking does not incorporate the zero-emissions sales mandate provision specified in Title 13 CCR Section 1960.1(g)(2) (footnote 9) and will not require manufacturers complying with the Pennsylvania Clean Vehicles Program to include a specified percentage of ZEVs in the manufacturers sales fleet of passenger cars and light-duty trucks.
The rule does not adopt and incorporate the Emission Control Warranty Statement provisions in Title 13 CCR Section 2039 which describes a California warranty statement that is included along with the manufacturer's new motor vehicle warranty. The California statement includes references to California's Smog Check vehicle emission inspection program.
Section 126.412 (relating to emission requirements) prescribes that a person may not sell, import, deliver, purchase, lease, rent, acquire, receive or register a new motor vehicle that is subject to the Pennsylvania Clean Vehicles Program requirements which has not received a CARB Executive Order starting with the model year beginning December 5, 2000. All new passenger cars and light-duty trucks in the effective model year and subsequent model years would have to meet the California low emission vehicle standards.
Section 126.412(d) provides that new motor vehicles subject to the Pennsylvania Clean Vehicles Program must possess a valid emissions control label which meets the requirements of Title 13 CCR § 1965.
Section 126.413 (relating to exemptions) provides an exemption from the Pennsylvania Clean Vehicles Program for the following types of new motor vehicles: emergency vehicles and light-duty vehicles transferred by a dealer to another dealer; transferred for use exclusively off-highway; or transferred for registration out of State. This section also provides an exemption for vehicles granted a National security or testing exemption under section 203(b)(1) of the CAA and motor vehicles defined as military tactical vehicles or engines used in military tactical vehicles including a vehicle or engine excluded from regulation under 40 CFR 85.1703 (relating to applicability of section 216(2)).
The final rulemaking includes exemptions for light-duty vehicles held for daily lease or rental to the general public as well as light-duty vehicles engaged in interstate commerce that are registered and principally operated outside this Commonwealth. The final rule adds the requirement that the motor vehicles be registered outside this Commonwealth.
An exemption from the Pennsylvania Clean Vehicles Program requirements is provided for light-duty vehicles acquired by a resident of this Commonwealth for the purpose of replacing a vehicle registered to the resident which was damaged, or became inoperative, beyond reasonable repair or was stolen while out of this Commonwealth, if the replacement vehicle is acquired out of this Commonwealth at the time the previously owned vehicle was either damaged or became inoperative or was stolen.
The final rule also provides exemptions for light-duty vehicles transferred by inheritance or court decree and light-duty vehicles transferred after the date on which this subchapter becomes applicable if the vehicles were registered in this Commonwealth before December 5, 1998.
The final rule exempts light-duty vehicles having a certificate of conformity issued under the Federal CAA and originally registered in another state by a resident of that state who subsequently establishes residence in this Commonwealth. Upon registration of the vehicle in this Commonwealth, the registrant must provide satisfactory evidence to PennDOT concerning the previous out-of-State residence and motor vehicle registration.
To obtain the exemptions authorized under § 126.413, the person seeking registration must provide satisfactory evidence that the exemption is applicable, as determined by PennDOT.
Section 126.421 (relating to new motor vehicle certification testing) provides that prior to being offered for sale or lease in this Commonwealth, new motor vehicles subject to the Pennsylvania Clean Vehicles Program requirements must be certified by auto manufacturers to meet the requirements of Title 13 CCR § 1960.1, as determined by testing in accordance with Title 13 CCR Chapter 2, Sections 2101--2110, 2150 and 2151, which are incorporated by reference in this section. New Vehicle Compliance Testing determinations and findings made by CARB shall apply to testing conducted under this section.
Section 126.422 (relating to new motor vehicle compliance testing) requires that prior to being offered for sale or lease in this Commonwealth, new motor vehicles subject to this subchapter shall be certified as meeting the motor vehicle requirements of Title 13 CCR § 1960.1, as determined by New Vehicle Compliance Testing, conducted under Title 13 CCR Chapter 2 §§ 2101--2110, 2150 and 2151 and incorporated by reference.
Section 126.423 (relating to assembly line testing) provides that each manufacturer of new motor vehicles subject to the requirements of this subchapter, certified by CARB and sold or leased in this Commonwealth, shall conduct Inspection Testing and Quality Audit Testing under Title 13 CCR §§ 2061, 2106 and 2107, incorporated by reference. Inspection Testing and Quality Audit Testing determinations and findings made by CARB shall apply to assembly line testing conducted under this section.
Subsection (c) provides that if a motor vehicle manufacturing facility which manufactures vehicles certified by CARB, for sale in this Commonwealth, is not subject to the Inspection Testing and Quality Audit testing requirements of the CARB, the Department may, after consultation with CARB, require testing under Title 13 CCR §§ 2061, 2106, 2107 and 2150, incorporated by reference. An auto manufacturer may, upon written request and demonstration of need, substitute functional testing. With the written consent of the Department, the testing of a statistically significant sample conducted under the procedures incorporated in Title 13 CCR § 2061 can be substituted for the 100% testing rate in Title 13 CCR § 2061.
Section 126.424 (relating to in-use motor vehicle enforcement testing) allows the Department to conduct in-use vehicle enforcement testing under the protocol and testing procedures in Title 13 CCR §§ 2136--2140, incorporated by reference, after consulting with CARB if motor vehicles subject to the Pennsylvania Clean Vehicles Program requirements fail to meet the motor vehicle emission requirements of Title 13 CCR § 1960.1. In-use vehicle enforcement testing determinations and findings made by CARB shall apply to testing conducted under this section.
Section 126.425 (relating to in-use surveillance testing) provides that for purposes of testing and monitoring the overall effectiveness of the Pennsylvania Clean Vehicles Program in controlling emissions, the Department may conduct in-use surveillance testing after consultation with CARB. The in-use surveillance testing determinations and findings made by CARB shall be applicable.
In-use surveillance is a process that allows CARB to collect emissions data from the in-use California fleet to update its highway vehicle model, identify vehicles that exceed emission standards, identify problem emission control equipment and evaluate manufacturers' warranty requirements. In-use surveillance is used only as an information gathering tool that enables CARB to require auto manufacturers to make repairs and necessary design and warranty modifications. The Commonwealth will use in-use surveillance in a similar fashion. In-use surveillance will not be used to determine an individual motorist's needs to make repairs like an inspection and maintenance (I&M) program, nor does it substitute for an I&M program in this Commonwealth.
Specifically, CARB performs in-use surveillance by selecting 400 vehicles of different model year and engine class for each test cycle. The entire test cycle takes nearly a year. Each car is tested for emissions and faulty emission components. Necessary repairs are performed at no cost to the owner. Vehicles are obtained and randomly selected from citizens at large. If these citizens agree to the tests, they are reimbursed and provided with a rental car during the 5-day test period.
The Department will use in-use surveillance in the Clean Vehicles Program to determine whether a vehicle or emission component sold in this Commonwealth is responsible for excessive emissions. The Department will contract a qualified facility to perform the test.
Section 126.431 (relating to warranty and recall) specifies that a manufacturer of new motor vehicles, subject to the requirements of this subchapter, shall warrant to the owner that each vehicle shall comply over its warranty coverage period with all requirements of Title 13 CCR §§ 2035--2038, 2040 and 2041, as amended and incorporated by reference. Emission-Related Components reports, as defined in Title 13 CCR § 2144 for vehicles subject to this subchapter, must be submitted to the Department. The Emission-Related Components reports must comply with the procedures in Title 13 CCR §§ 2141--2149 and are incorporated by reference.
Subsection (c) provides that any voluntary or influenced emission-related recall campaign initiated by any automobile manufacturer under Title 13 CCR §§ 2113--2121 shall extend to all new motor vehicles subject to this subchapter, sold, leased, offered for sale or lease or registered in this Commonwealth.
Section 126.432 (relating to reporting requirements) specifies that for purposes of determining compliance with the Pennsylvania Clean Vehicles Program, commencing with the model year beginning December 5, 2000, each manufacturer shall submit annually to the Department, within 60 days of the end of each model year, a report documenting the total deliveries for sale of vehicles in each engine family over that model year, in this Commonwealth. The final rule deletes reference to model year 2001 and replaces it with the model year beginning December 5, 2000.
Subsection (b) requires each motor vehicle manufacturer to submit to the Department, no later than March 1 of the calendar year following the close of the completed model year, an annual report of the fleet average NMOG emissions of its total deliveries for sale of light-duty vehicles in each engine family for this Commonwealth for that particular model year. The fleet average report, calculating compliance with the fleetwide NMOG Exhaust Emission Average, must be prepared according to the procedures in Title 13 CCR § 1960.1(g)(2).
Subsection (c) specifies that the fleet average reports shall, at a minimum, identify the total number of vehicles including offset vehicles sold in each engine family delivered for sale in this Commonwealth, the specific vehicle models comprising the sales in each state and the corresponding certification standards, and the percentage of each model sold in this Commonwealth in relation to total fleet sales. References relating to the fleet sales of California and other states in the proposed rule is deleted in the final rule.
Section 126.441 (relating to responsibilities of motor vehicle dealers) provides that dealers may not sell, offer for sale or lease or deliver a new motor vehicle subject to this subchapter unless the vehicle conforms to the standards and requirements contained in Title 13 CCR § 2151 and incorporates those provisions by reference.
G. Benefits and Costs
Executive Order 1996-1 requires a cost/benefit analysis of the amendments.
Benefits
The new motor vehicle emissions control program will contribute to the attainment and maintenance of the ozone health standard in this Commonwealth due to emission reductions from the operation of low emission passenger cars and light-duty trucks. Modeling data from the Philadelphia area indicate that daily emissions of NOx and VOCs will be reduced by 13.5 and 11.5 tons, respectively, in 2005.
Implementation of the NLEV program as an alternative compliance strategy will result in significant environmental and health benefits. Modeling shows that the NLEV program provides greater emission reductions compared to a state-by-state adoption of Section 177 programs throughout the Ozone Transport Region. (62 F. R. 44757, August 22, 1997). The NLEV program will not only reduce ozone pollution, but will also reduce emissions of particulate matter, NMOG, formaldehyde and benzene. The EPA estimates that in the year 2005, the NLEV program will reduce benzene emissions by 7 tons per day and formaldehyde by 4 tons per day Nationwide. The NLEV program should achieve NOx emission reductions of 400 tons/day in 2005 and 1,250 tons/day in 2015 on a Nationwide basis. The NLEV program should also result in NMOG emission reductions of 279 tons/day in 2005 and 778 tons/day in 2015.
Compliance Costs
The NLEV program should result in a reduction in compliance costs for auto manufacturers. Manufacturers currently design, test and produce new motor vehicles meeting Federal or California emission standards. The NLEV program should streamline the new car certification requirements thereby reducing testing costs. The amendments should reduce compliance costs for auto manufacturers by eliminating duplicative reporting and recordkeeping requirements.
Consumers in this Commonwealth could be required to pay an additional $76 to $120 per vehicle for the cost of the required control technology. However, an additional $76 associated with the purchase of a vehicle subject to the NLEV program would be less than 0.5% of the price of a new car. The EPA believes that the incremental cost for LEVs available Nationwide will be less than $76 due to factors like continued advancement in automotive pollution control technology and the demonstrated rapid price decreases in successive model years for technology newly introduced by the auto industry. The incremental estimated costs per car for LEVs in California is approximately $120. However, the EPA believes that LEV price estimates provided by CARB are usually higher than actual price differences.
Compliance Assistance Plan
Under both the NLEV program and the Pennsylvania Clean Vehicles Program compliance assistance will be provided to affected parties, primarily automobile dealers, through appropriate State trade organizations in the distribution of information to their membership. Information concerning the program will also be provided to affected consumers through AAA and Department newsletters.
Paperwork Requirements
When the Pennsylvania Clean Vehicles Program is implemented, auto manufacturers will be required to submit paperwork demonstrating compliance with the emission standards and other requirements of the Pennsylvania Clean Vehicles Program. Motor vehicle dealers, leasing and rental agencies and registrants of new motor vehicles must demonstrate to PennDOT's Bureau of Motor Vehicles that new vehicles subject to the final rulemaking meet the emission standards.
The NLEV program requires certain reports of vehicle sales from auto manufacturers to the EPA. The EPA estimates that the testing, recordkeeping and reporting requirements should be approximately 241 hours annually for each manufacturer under the NLEV program. Under the Pennsylvania Clean Vehicles Program, the incremental paperwork requirements would be considerably less since manufacturers are already required to do compliance testing under CARB requirements.
H. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Board to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 13, 1997, the Board submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments as well as other documents.
In preparing these final-form regulations, the Board considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committees on October 26, 1998. IRRC met on November 5, 1998, and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
J. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 6303 (November 29, 1997).
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble and are reasonably necessary to achieve and maintain the NAAQS for ozone.
K. Order
The Board, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 121 and 126, are amended by amending § 121.1 and by adding §§ 126.401--126.402, 126.411--126.413, 126.421--126.425, 126.431--126.432 and 126.441 to read as set forth in Annex A with the ellipses referring to the existing text of regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) These final-form regulations are effective upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 28 Pa.B. 5818 (November 21, 1998).)
Fiscal Note: Fiscal Note 7-330 remains valid for the final adoption of the subject regulations.
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