[36 Pa.B. 7424]
[Saturday, December 9, 2006]
[Continued from previous Web Page] California LEV Adoption
Senators Madigan and White asserted that the Department adopted a more stringent (compared to Tier I) Federal option available at the time of the 1998 rulemaking, called NLEV. The Department responds that Chapter 126, Subchapter D adopted in 1998, previously titled New Motor Vehicle Emissions Control Program, contained both NLEV and Program provisions to enable the Commonwealth to participate in NLEV as well as the Program, which incorporates the California LEV program.
Senators Madigan and White and several other commentators commented that the current Department administration reversed course from its 1998 statements and now claims that the California vehicle emission standard is effective in this Commonwealth for MY 2006. They stated that if the Department's current interpretation is to be believed, then the Department has offered no reason to substantiate why it is proposing to postpone implementing the California standard when, per its own argument, the automobile industry and consumers have had advance notice of its effective date for nearly 8 years. They stated their belief that the CA LEV program was intended solely as a ''backstop'' to NLEV/Tier II. They cited various statements attributed to the Department to support their belief. They also stated that their belief is that the Department has failed to revisit the current regulation in a timely fashion to incorporate the Federal Tier II standards and that this rulemaking is actually a conscious decision to codify the California standard in the Commonwealth's regulations. They stated the Department intentionally omitted in a January 31, 2006, letter to the General Assembly the context of the 1998 rulemaking as well as the Department's own stated intention to revise the regulation to incorporate Tier II when it was finalized. Several industry commentators commented that the Program included adoption of the LEV standards as a temporary measure or ''backstop'' in case the EPA's NLEV program was not implemented or if Federal standards cleaner than NLEV were not adopted. The Department responds that the California standards were adopted in this Commonwealth to require compliance if the auto manufacturers opted not to participate in the voluntary NLEV program or after the end of the commitment to NLEV after MY 2005. This was stated clearly in the preambles to the 1998 proposed and final-form rulemakings: ''This program will only be implemented if an auto manufacturer opts out of the NLEV program or at the conclusion of the NLEV program.'' (Emphasis added.) See the final-form rulemaking at 28 Pa. B. 5873, 5874. See also the proposed rulemaking at 27 Pa. B. 6303, 6305 (November 29, 1997). The preamble specified that NLEV was only a temporary measure: ''The Commonwealth's NLEV program participation ends with model year 2006.'' See 28 Pa. B. 5783, 5875. The 1998 regulation itself was and is clear. It expressly adopts and incorporates by reference certain provisions of the California LEV program, Title 13, CCR in § 126.411, requires CARB certification for vehicles sold, imported, delivered, purchased, leased, rented, acquired, received or registered in this Commonwealth in § 126.412(a) and requires compliance with the California NMOG fleet average in this Commonwealth in § 126.412(b). The 1998 regulation expressly adopts NLEV as only a temporary measure and a compliance alternative to the California program: § 126.402(b)) stated ''The Commonwealth's participation in the NLEV program extends until model year 2006 . . .'' and § 126.401(b) stated ''This subchapter allows motor vehicle manufacturers to comply with the voluntary NLEV program . . . as a compliance alternative to the Pennsylvania Clean Vehicles Program. . . .'' Hence, the Department was clear that the California program was offered as more than just a backstop in the event a manufacturer did not comply with NLEV or the Federal standards were not finalized. The 1998 regulations provided in § 126.402 (c)that ''[f]or the duration of the Commonwealth's participation in the NLEV program, manufacturers may comply with the NLEV standards or equally stringent mandatory Federal standards in lieu of compliance with the Pennsylvania Clean Vehicles Program established in §§ 126.411--126.441. . . .'' In 2004, the EPA established more stringent Federal standards called Tier II. Hence, manufacturers were required to comply with Tier II, as part of the NLEV program, for MYs 2004 and 2005. Beginning with MY 2006, when the Commonwealth's participation in the NLEV program ended, the California program took effect. ''Except as provided in subsections (a) and (c) [describing NLEV participation], the Pennsylvania Clean Vehicles Program applies to all new passenger cars, and light-duty trucks (if designed to operate on gasoline) sold, leased, offered for sale or lease, imported, delivered, purchased, rented, acquired, received or registered in this Commonwealth starting with the model year beginning after December 5, 2000, and each model year thereafter.'' (Emphasis added.) See § 126.402(d). Hence, the current rulemaking is not an adoption or codification of the California program. The California program was adopted, or codified, in the Commonwealth in 1998. The Department proposed postponing implementation of the Program in this final-form rulemaking to minimize any potential vehicle availability issues and to put in place a specific transition mechanism for compliance.
Incorporation by Reference
The Alliance submitted several comments regarding the existing regulations' incorporation by reference of the California program. It claimed that the Board and Department have been ambiguous about whether they believe that the CA LEV II program is already the law of the Commonwealth and that there needs to be a legal basis for a conclusion that an incorporation by reference has already occurred. The Alliance claimed it is highly unusual for the Board to claim it has the authority to adopt regulations that automatically incorporate any amendments that are made to the California program. The Department disagrees that the Board and Department have been ambiguous. The purpose of this final-form rulemaking is not to adopt CA LEV II because by virtue of the 1998 rulemaking, CA LEV II is already the legally effective program in this Commonwealth. Situations in which cross-referenced statutory or regulatory provisions are later revised or replaced are addressed in 1 Pa.C.S. Part V (relating to Statutory Construction Act of 1972). Pennsylvania courts have held that the act applies to regulations as well as to statutes. (See, for example, Highway New, Inc. v. Pennsylvania Department of Transportation, 789 A.2d 802, 808 (Pa. Cmwlth. 2002).) Section 1937(a) of the Statutory Construction Act of 1972 (relating to references to statutes and regulations) states that ''A reference in a statute to a statute or to a regulation issued by a public body or public officer includes the statute or regulation with all amendments and supplements thereto and any new statute or regulation substituted for such statute or regulation, as in force at the time of application of the provision of the statute in which such reference is made, unless the specific language or the context of the reference in the provision clearly includes only the statute or regulation as in force on the effective date of the statute in which such reference is made.'' (Emphasis added.) In a December 2, 2005, letter to Representative Richard Geist, EPA Region 3 Administrator Donald Welsh stated that it is the EPA's opinion that the CA LEV standards are ''the legally effective program for Pennsylvania'' and underscored that the CA LEV standards are a ''federally enforceable part of the SIP.'' Hence, California's post-1998 amendments and supplements to, and any new statute and regulation substituted for, the portions of the California LEV program that were adopted in the Commonwealth's 1998 rulemaking are automatically included in the Commonwealth's regulations.
The Alliance commented that authority to adopt regulations that automatically incorporate amendments made to the California program delegates statutory implementation authority in section 2(a) of the Regulatory Review Act (71 P. S. § 745.2(a)) to another state's regulatory authority in violation of Pa.Const. Art. II, § 1. The Department responds that the current regulations and the final-form rulemaking are authorized under the act. The Commonwealth, along with the other states that have adopted the California LEV program, has the same ability to comment on changes to the California program as it has in commenting on changes to the Federal new motor vehicle control program. Elected representatives are part of the rulemaking process in the Commonwealth established by the Regulatory Review Act (71 P. S. §§ 745.1--745.15). Additionally, the final-form rulemaking requires the Department to monitor and advise the Board of proposed or final CA LEV rulemaking under consideration by CARB, prepare a cost/benefit analysis to be submitted to the Board and Chairpersons of the House and Senate Environmental Resources and Energy Committees (Committees) for each proposed or final CARB rulemaking, evaluate and submit to the Board and the Chairpersons of the Committees the estimated incremental cost to manufacture vehicles that comply with the CA LEV program compared to the Federal program and submit comments on proposed or final CARB rulemakings on behalf of the residents of this Commonwealth. Section 1937(a) of the Statutory Construction Act of 1972 explicitly provides that ''A reference in a statute [or regulation] to a statute or to a regulation issued by a public body or public officer includes the statute or regulation with all amendments and supplements thereto and any new statute or regulation substituted for such statute or regulation, as in force at the time of application of the provision of the statute [or regulation] in which such reference is made. . . .'' Thus, the automatic inclusion in the Commonwealth's regulations of amendments and supplements to, and of any new statute or regulation substituted for a portion of, the California program are statutorily sanctioned.
The Pennsylvania AAA Federation commented that the nature, severity and geography of California's air pollution problem drive California's pollution reduction strategies. The commentator stated that California regions are in ''extreme'' nonattainment while regions in this Commonwealth are defined as ''moderate'' or ''marginal'' and that California's pollution reduction strategies may not be appropriate for this Commonwealth. The Department agrees that California's ozone air pollution problem is worse than this Commonwealth's. The nature of California's problem has resulted in a dedication of technical resources to air quality problems unequalled in the world, including at the EPA. The Department agrees that some of California's pollution reduction strategies may not be appropriate for this Commonwealth. However, as motor vehicles will continue to contribute a significant amount of pollution in this Commonwealth, the Program is a cost-effective strategy to further reduce vehicle emissions.
Several commentators commented that adopting the CA LEV program ties the Commonwealth to any and all changes made to the program by CARB, on which the Commonwealth (like other states) has no representation. The Department responds that this final-form rulemaking is not an attempt to adopt the California program. That program was adopted in the 1998 rulemaking. The final-form rulemaking, like the proposed rulemaking, requires the Department to monitor and advise the Board of proposed or final LEV rulemakings under consideration by CARB, prepare a cost/benefit analysis to be submitted to the Board and Chairpersons of the Committees for each proposed or final CARB rulemaking, evaluate and submit to the Board and the Chairpersons of the Committees the estimated incremental cost to manufacture vehicles that comply with the CA LEV program compared to the Federal program and submit comments on proposed or final CARB rulemakings on behalf of the residents of this Commonwealth. The Commonwealth, along with the other states that have adopted the California LEV standards, has the same ability to comment on changes to the California program as it has in commenting on changes to the Federal new motor vehicle control program. Elected representatives are part of the rulemaking process in the Commonwealth established by the Regulatory Review Act.
The Pennsylvania AAA Federation noted that California revises its standards more frequently than the EPA. The Department agrees that California has revised its standards more often than the EPA, which has amended its light-duty vehicle standards only when explicitly directed by statute. The NRC recently found that the process by which California revises its standards is scientifically and technically valid and is a benefit to the country. Compared to the Federal government, the ability of California to respond better to changing conditions, including technological advances, was viewed by the NRC as an advantage. Most of the revisions to the California program were revisions to California's ZEV program, which is excluded from adoption in the Program.
Stringency Requirement
The Alliance commented that the proposed rulemaking failed to satisfy the ''stringency'' limitation in section 4.2 of the act (35 P. S. § 4004.2(b)), which requires rules to be no more stringent than those required by the CAA unless authorized or required by the act or specifically required by the CAA. Section 4.2(b) of the act goes on to list certain exceptions to this stringency limitation. The commentator asserts that none is applicable here. The Department disagrees. The existing regulation automatically incorporates the current California program, which at this time is CA LEV II, not CA LEV I. Section 4.2(b) of the act is inapposite because this final-form rulemaking is not a rulemaking that adopts the California standards, since they are already adopted. This final-form rulemaking postpones the compliance date of the Program by 2 years. In this way, the final-form rulemaking is not more stringent than the existing regulations. Furthermore, the Department disagrees with the commentator's characterization of the stringency provision of the act. Section 4.2 of the act authorizes adoption of regulations that are more stringent than Federal requirements if they are reasonably necessary to achieve or maintain the ambient air quality standards. Adoption of the California program under section 177 of the CAA was reasonably necessary to achieve and maintain the health-based 1-hour ozone ambient standard in this Commonwealth and the successor 8-hour ozone ambient standard.
Stakeholder Process
Senators Madigan and White commented that the proposed rulemaking should not proceed at this time. They stated that a stakeholder process (as included in SB 1025) should be instituted to help analyze state options for meeting air quality standards. They stated that SB 1025 also requires the Department to report back to the General Assembly by June 30, 2010. The Department does not agree. Neither a stakeholder process, nor the schedule in SB 1025, accounts for the timetables of the CAA or the Commonwealth's regulatory process. Specifically, the Department must submit SIP revisions for meeting the 8-hour ozone standard by June 2007 and for meeting the fine particulate standard by April 2008. The stakeholder processes which took place in 1996 and 1997 took more than a year; it took a minimum of 1 additional year subsequent to those groups submitting recommendations to the Department to finalize recommendations in regulation. Furthermore, this final-form rulemaking is not designed to adopt the California program, since adoption occurred in 1998; rather, this final-form rulemaking makes changes to the already existing regulations to postpone the program compliance date from MY 2006 to MY 2008, specify the early credit earning period for automobile manufacturers and update definitions and cross-references.
Abrogation of Program
Senators Madigan and White commented that an October 28, 2005, letter from the Department to members of the House of Representatives stated that passage of HB 2141, a bill to abrogate the Program, and repeal of the Clean Vehicles Program ''puts us in violation of federal law.'' They state that subsequently, the Department changed its argument, conceding that the Commonwealth can in fact maintain the Federal Tier II standards but in the Department's view would need additional reductions from stationary sources to meet air quality standards. The Department responds that the statement that repealing the Program would violate Federal law and the statement that the Commonwealth has the option to return to the Federal new motor vehicles program are not contradictory. The Commonwealth adopted the Program in 1998 and submitted the regulation to the EPA as an SIP revision. That SIP revision was effective February 28, 2000. Approval of an SIP by the EPA makes the SIP Federally enforceable. In a December 2, 2005, letter to Representative Richard Geist, EPA Region 3 Administrator Donald Welsh stated that it is the EPA's opinion that the CA LEV standards are ''the legally effective program for Pennsylvania'' and underscored that the CA LEV standards are a ''federally enforceable part of the SIP.'' This means that Federal law needs to be followed if this part of the Commonwealth's SIP is to be changed. The Commonwealth's adoption of California emission standards could not be revoked without holding public hearings on a proposed SIP revision to do so, responding to comments received and submitting the proposed SIP revision to the EPA for approval. Just as the Department had the authority in 1998 to choose to adopt the California standards, the Department has the authority to choose to participate in the Federal program, but only if these steps are followed. The Commonwealth is required by the CAA to achieve and maintain the NAAQS in all areas of this Commonwealth designated as nonattainment. The available emission reduction options are ''a shrinking slate,'' as characterized by Mr. Welsh in the December 2005 letter. Since states do not have many strategies regarding motor vehicles available to them, most of the strategies are indeed reductions from stationary sources.
The two senators commented that a November 1, 2005, e-mail from the Secretary of DOT to the members of the General Assembly insinuates that passage of HB 2141 would jeopardize $1.6 billion in Federal transportation funding. The senators stated that the e-mail failed to include a detailed discussion of the implications of HB 2141, the likelihood of whether the Commonwealth in fact would lose Federal funding, or whether the Commonwealth actually relied upon the California vehicle emission standards as part of its SIP compliance strategy. The senators stated that a December 2005 letter from the EPA Region 3 Administrator stated that he believed passage of the bill would not result in application of Federal sanctions against the Commonwealth because at present, the Commonwealth's SIP does not rely upon emission reductions. The Department responds that the interpretation that revocation of the Program might trigger Federal sanctions was based upon the fact that the Program is a Federally-enforceable portion of the Commonwealth's SIP. The December letter referenced by the commentators provided a different interpretation of the application of mandatory sanctions under the CAA and also indicated that it is unlikely that the EPA would impose discretionary sanctions because the Department had not relied upon the benefits of the CA LEV program in its SIP revisions for the 1-hour ozone standard. The Department agrees that the emission reduction benefits of the California LEV program in 1-hour ozone SIPs were not relied upon in SIP submissions to date, but the Department has included the benefits in its development of SIP revisions to attain and maintain the 8-hour standard. The Commonwealth will begin submitting these SIP revisions in the fall of this year.
NMOG Fleet Average
One commentator stated that by adopting and attempting to enforce the California fleet NMOG average, the Commonwealth will violate the CAA. The commentator asserted that since it is highly unlikely that a manufacturer will sell exactly the same products in exactly the same proportions in this Commonwealth as it will in California, and consumers in this Commonwealth determine that a particular manufacturer's sales mix in Pennsylvania results in a higher fleet NMOG average, the manufacturer may be required to artificially limit sales of certain CARB-certified cars to comply with this Commonwealth's fleet average requirement. The commentator concluded that this would be an indirect limit on the sale of a motor vehicle certified to California standards and thus would violate section 177 of the CAA. The Department disagrees. This final-form rulemaking does not establish the Program or adopt the NMOG fleet average, but makes changes to the already existing regulations which already incorporate by reference the NMOG fleet average. This final-form rulemaking postpones the Program compliance date from MY 2006 to MY 2008, specifies the early credit earning period for automobile manufacturers and updates definitions and cross-references. Even if this final-form rulemaking were adopting the California NMOG fleet average, adopting the fleet average would not violate section 177 of the CAA. Section 177 of the CAA specifically authorizes states like the Commonwealth to ''adopt and enforce standards relating to control of emissions from new motor vehicles or new motor vehicle engines'' if the ''standards are identical to the California standards for which a waiver has been granted for such model year. . . .'' Courts accept California's NMOG fleet average as a ''standard relating to control of emissions.'' See, for example, Motor Vehicle Manufacturers Assoc. v. New York State Department of Environmental Conservation, 17 F.3d 521, 537 (2d Cir. 1994) (''It would be inappropriate to view the 1990 [CAA] amendments in a manner that would effectively prohibit any state from opting into the California program since Congress so obviously planned for the several states to have that option.''); American Automobile Manufacturers Assoc. v. Cahill, 152 F.3d 196, 200 (2d Cir. 1998) (''For example, the LEV Program is clearly a 'standard'. . .''). The EPA also accepts California's NMOG fleet average as a ''standard relating to control of emissions,'' as the EPA has approved the SIP revisions of at least three states that have adopted it, namely Maine, Massachusetts and New York. (70 FR 21959 (April 28, 2005) (Maine); 67 FR 78179 (December 23, 2002) (Massachusetts); and 70 FR 4773 (Jan. 31, 2005) (New York).) Moreover, the Second Circuit Court of Appeals has stated that the purpose of the sales limitation prohibition in section 177 of the CAA is to prohibit section 177 of the CAA opt-in states from attempting to regulate against the sale of a particular type, not number, of California-certified cars. Motor Vehicle Manufacturers Assoc., supra, 17 F.3d at 536. The CAA does not require automakers to ''sell exactly the same products in exactly the same proportions'' in a state that adopts or implements a program requiring CARB standards. As sales hinge on marketing factors, the ultimate decision on what type of vehicle to introduce for sale in an implementing state to meet the fleet average is a marketing decision. The Commonwealth's final-form rulemaking does not limit any type of highway vehicle from being introduced for sale in this Commonwealth. The Program only requires that any vehicle such as this have CARB certification and that in the aggregate the automaker's mix of vehicles introduced for sale in this Commonwealth complies with the NMOG fleet average specified by CARB.
GHG Provision of California's Program
Numerous comments from industry commentators and the two senators addressed California's GHG provisions.
Several of these commentators asserted that the smog-producing pollutants would be increased because of the GHG regulations, since people would retain older vehicles with higher emissions as the result of asserted increased price of new vehicles and people would drive more miles if fuel efficiency were increased. To the contrary, the Department agrees with CARB that the GHG provisions will provide an additional net decrease of the emissions of NOx and reactive organic gases (an analog to VOC). The Department's analysis did not account for these additional benefits as neither the Commonwealth's existing regulations nor the final-form rulemaking requires the California GHG fleet average requirement to be met based on sales in this Commonwealth. One commentator, Sierra Research, whose analysis of the Program is relied upon by several others, focused its analysis almost entirely on the GHG provisions and on the incorrect assumption that the Commonwealth is proposing adoption of a GHG fleet average requirement based on sales in this Commonwealth, resulting in erroneous conclusions that are not relevant. In addition, the analysis provided no relevant information, analysis or data to specifically refute the Department's analysis of the emissions impact of postponing the compliance date of the Commonwealth's existing Program. The Department's analysis is based on current EPA guidance.
Furthermore, emission reductions that are to be achieved in California, this Commonwealth or elsewhere from CARB's GHG provisions are dependent upon the EPA granting a waiver of preemption to CARB for the GHG emission standards. Under section 209(b) of the CAA (42 U.S.C.A. § 7543(b)), California must first find that its standards are, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. California has already made this determination. The EPA will then review California's ''protectiveness'' finding and must deny a waiver if it determines that California's finding was arbitrary and capricious, among other things. The commentator will have the opportunity to present its analyses of CARB's GHG emission standards to the EPA during the EPA's waiver decision making process, which includes Federal publication of a proposed decision and a public comment period. If the EPA (the agency that promulgated the Tier II standards) grants CARB a waiver of preemption for the GHG standards, there should be no question of whether CARB's standards are as protective as Tier II.
Sierra Research and DaimlerChrysler asserted that adoption of CA LEV II with the GHG provisions in this Commonwealth will result in increased VOC, NOx, CO and PM2.5 emissions relative to a baseline where the Federal Tier II emissions standards apply. The Department disagrees with the commentators' analysis of the purported emissions increase. The analysis incorrectly assumes that automakers will be required to comply with the California GHG fleet average based on vehicles introduced for sale in this Commonwealth. Because this fundamental assumption is incorrect, the commentators' analysis has little practical value with regard to this final-form rulemaking. In addition, the analysis provided little, if any, additional information, analysis or data to specifically refute the Department's analysis of the emissions impact of postponing the compliance date of the Commonwealth's existing Program. The Department's analysis is based on current EPA guidance.
The Department agrees that emissions, in general, may be influenced in part by three secondary effects of the GHG regulation described by the commentators, but the commentators' evaluation of the magnitude of these effects in this Commonwealth is flawed given the commentators' erroneous assumption regarding the GHG fleet average. In addition, the commentators' underlying assumptions with regard to the resultant impact of these effects in California were successfully refuted by CARB in its Final Statement of Reasons. The commentators provided little supporting data to allow the Department to replicate and quantitatively evaluate the commentators' claims. The Department disagrees that the relative baseline for comparison of emissions, for the purpose of the commentator's analysis to evaluate the impacts of the California GHG provisions, is the Federal Tier II program. The California standards are currently incorporated by reference in the Commonwealth's regulations. The purpose of this final-form rulemaking is to postpone the compliance date of the Program from MY 2006 to MY 2008 and specify a 3-year early-credit earning period within which vehicle manufacturers must come into compliance with the NMOG fleet average of the Program. The relative baseline, therefore, should be the CA LEV II standards and not the Federal Tier II standards. The commentator did not provide any comparison of the GHG provision impact to the existing regulations or the amendments to the Program. The Department's analysis estimates a reduction of 7.8 to 16.9 tons per day of VOCs and 9.7 tons per day of NOx in 2025 by implementing the Program as set forth in the preambles to the proposed and final-form rulemakings. The Department continues to agree with CARB that there would be a slight decrease in NOx and VOC emissions as a result of the GHG provisions, but given that the Program does not require compliance with a GHG fleet average based on sales in this Commonwealth and that automakers will still be required to meet the NMOG fleet average based on sales in this Commonwealth (thus ensuring reductions over Tier II), these benefits would be secondary and are not included in the Department's analysis.
Three industry commentators claimed that the proposed rulemaking would have no measurable impact on the global climate or the climate of this Commonwealth and that the means for controlling GHG are being debated internationally and can only be addressed effectively on a global basis. The Department responds that the Commonwealth expects that the existing regulations will make a contribution to the reduction of GHGs, which will help mitigate global warming and its public health and environmental effects. A measurable effect on temperatures or on ozone reduction based on effects on temperatures is not the intent of this final-form rulemaking.
The Alliance commented that the California GHG regulations will not improve air quality because the regulations focus predominantly on controlling CO2, an inert gas that is not toxic to humans or animals. The commentator argues that control of GHG emissions is not a pollution issue but is an energy issue. Whether GHGs, including CO2, are a pollutant is an issue currently in litigation. On November 29, 2006, the Supreme Court of the United States heard oral agrument on whether the EPA has authority under the CAA to regulate GHG emissions from automobiles. Massachusetts v. EPA, U.S., No. 05-1120.
Three industry commentators stated that states have no statutory authority and are expressly prohibited from passing or enforcing any statute or regulation that attempts to reduce carbon dioxide through the regulation of vehicle fuel economy. These commentators note that the National Highway Traffic Safety Administration made these statements in both its proposed and final rule for average fuel economy standards for light trucks. The Department responds that the issue of whether California's GHG regulation attempts to regulate vehicle fuel economy is currently being litigated in Federal court in California in Central Valley Chrysler-Jeep, Inc. v. Catherine E. Witherspoon, 1:04-cv-06663-AWI-LJO. If the California regulation is overturned in court, the Commonwealth will not realize GHG benefits from California's GHG provisions. The statements made by the National Highway Traffic Safety Administration were made in a preamble, not a regulation, and do not carry the authority of law.
Senators Madigan and White commented that the Department's preamble touts the California standard as a means of controlling carbon dioxide (GHG) emissions. They stated that the Department fails to acknowledge that reduction of CO2 emissions is not a requirement of the SIP or the CAA. They said that the Department ignores a September 2003 EPA General Counsel determination that the EPA does not have the authority under Federal law to regulate motor vehicle emissions of CO2 or other GHGs. The Department responds that the preamble to the proposed rulemaking stated that California recently added a GHG fleet average requirement to its LEV II program beginning with MY 2009, which will have to be met in California to obtain CARB certification. The Department is not requiring auto manufacturers to meet a fleet average for GHGs based on sales in this Commonwealth, but, as stated in the preamble, the Department expects that the Commonwealth will realize the benefits of California's GHG certified vehicles through the Commonwealth's existing requirement that new vehicles have CARB certification. The preamble explained that California estimates that the program, when fully phased-in, will provide about a 30% reduction in GHG emissions from new vehicles required to comply compared to the 2002 fleet. The Department anticipates that this Commonwealth will achieve similar results. The Department did not state or imply that reducing CO2 emissions in the Program is a requirement of the SIP or the CAA. The Department does not ignore the September 2003 EPA General Counsel opinion regarding GHGs; to the contrary, the preamble expressly acknowledged that California is currently defending its GHG regulations against legal challenges filed by the auto industry. The EPA's position on regulation of GHGs from motor vehicles is currently under review by the Supreme Court of the United States in the case of Massachusetts v. EPA, U.S., No. 05-1120.
The Pennsylvania AAA Federation and several industry commentators objected to the costs of complying with the California GHG requirements. CARB has estimated the additional price of the GHG provisions at over $1,000 per vehicle while the auto industry believes the price of all new vehicles would increase about $3,000 on average per vehicle. In MY 2009 and beyond, once the California GHG provisions take effect, the Department agrees with CARB's per vehicle cost estimate of approximately $1,000 by 2016 and with CARB's estimate that this cost increase will be offset by savings to the consumer due to increased operational efficiency of these vehicles. While CARB predicted that by 2016 the operational efficiency of vehicles meeting GHG requirements might actually afford owners an overall cost savings of $3.50 to $7 per month (assuming $1.74 per gallon of gasoline), information on initial cost (which could be related to sticker price) was also estimated. Based on separate CARB estimates for passenger cars/small trucks and large trucks/SUVs and the similar composition of the fleet in this Commonwealth, consumers could see an increase in per vehicle costs of $21 for MY 2009, $63 for MY 2010 and $219 for MY 2011 to about $1,000 in MY 2016. CARB estimates that by 2016 the operational efficiencies realized by GHG technology will result in an overall savings of $3.50 to $7 per month ($42 to $84 dollars per year) based on a MY 2016 vehicle costing an additional $1,029 to $1,064 per vehicle. These savings are probably understated, since the price of gasoline is likely to remain higher than that used in CARB's analysis. Several commentators pointed out that historically, cost projections made by both industry and government (EPA and California) tend to overstate actual costs.
The Alliance and the Pennsylvania AAA Federation commented that to meet what they referred to as the proposed ''fuel efficiency'' and emissions requirements of CA LEV II, vehicle weight and size would be reduced, which would reduce consumer utility and contribute to higher traffic fatalities. The Department responds as follows. As indicated by CARB in its Final Statement of Reasons, California law specifically prohibits CARB from using weight reduction or vehicle class elimination as a mechanism to achieve compliance with the GHG provisions of the CARB standard. The Department believes that CARB's analysis of the available technology options is sound and agrees that many of the proposed technologies are either in current production or are in late stage development by automakers. In addition, the GHG provisions provide sufficient lead-time for automakers to cost-effectively integrate these existing technologies into production. The Department agrees with CARB's analysis of the GHG provisions that weight reduction strategies are not necessary. Weight reduction strategies that may be employed by automakers are business decisions by individual automakers and not the result of requirements of either the CA LEV II standards or the Program. The Department agrees that Federal motor vehicle safety standards will continue to apply to any vehicle introduced for sale into this Commonwealth.
G. Benefits, Costs and Compliance
Benefits
The final-form rulemaking will save manufacturers, dealers and purchasers of light-duty vehicles and trucks from incurring additional costs for CARB-certified vehicles for 2 model years. Implementation of the Program in accordance with the final-form rulemaking will contribute to the attainment and maintenance of the health-based ozone NAAQS in this Commonwealth due to emission reductions from the operation of low emission passenger cars and light-duty trucks. The Commonwealth's analyses indicate that, by implementing the California LEV II program under the final-form rulemaking, the Commonwealth will experience emission benefits when compared to the Federal program. By 2025, when full fleet turnover is expected, the California LEV II program will provide an additional reduction of 2,850 to 6,170 tons per year of VOCs, 3,540 tons per year reduction of NOx and 5% to 11% more reduction of six toxic air pollutants, including a 7% to 15% additional benefit for benzene, a known carcinogen. The Commonwealth will also realize the benefits of California's GHG certified vehicles. CARB estimates that the program, when fully phased-in, will provide about a 30% reduction in GHG emissions from new vehicles required to comply compared to the 2002 fleet.
In addition, CARB predicted that by MY 2016 the operational efficiency savings of vehicles meeting the GHG requirements, which start in MY 2009, will afford owners an overall cost savings of $3.50 to $7 per month, assuming a price of $1.74 per gallon of gasoline. These savings are probably understated, since the price of gasoline is likely to remain higher than that used in CARB's analysis.
Compliance Costs
The final-form rulemaking will defer any costs associated with CARB-certified vehicles for 2 model years, from MY 2006 to MY 2008. In fact, as stated, cost savings will be realized. The final-form rulemaking will apply to vehicle manufacturers, new vehicle dealers, leasing and rental agencies and other registrants who sell, import, deliver, purchase, lease, rent, acquire, receive, title or register light-duty automobiles or trucks in this Commonwealth. No new costs will be incurred as a result of the final-form rulemaking compared to the costs that would be experienced without the final-form rulemaking, since the Program is already incorporated by reference in the Commonwealth's regulations.
In September 2004, CARB estimated that by MY 2016 the operational efficiency savings of vehicles meeting GHG requirements will provide vehicle owners an overall cost savings of $3.50 to $7 per month, assuming $1.74 per gallon of gasoline. These savings are probably understated, since the price of gasoline is likely to remain higher than that used in CARB's analysis. CARB estimated the GHG-related initial investment costs, possibly reflected in sticker prices, will start under $50 per vehicle for MY 2009, be approximately $350 in 2012 and $1,000 per vehicle in MY 2016. Vehicle manufacturers disagree with CARB's GHG estimate, citing initial costs of as much as $3,000 per vehicle.
The Commonwealth periodically offers rebates to consumers for the initial purchase of hybrid electric vehicles. These rebates could offset additional initial costs that might be passed on to consumers under the existing or amended Program.
Compliance Assistance Plan
Compliance assistance with the Program will be provided to affected parties, primarily new vehicle dealers, through appropriate State trade organizations in the distribution of information to their membership. Information concerning the Program will also be provided to consumers through the media, Department publications, the Internet and appropriate motorist and other organizations.
The Commonwealth offers rebates to consumers for the initial purchase of hybrid electric vehicles. These incentives may help vehicle manufacturers meet their obligations under the Program.
Paperwork Requirements
No additional paperwork requirements will be imposed by the final-form rulemaking; the Program already contains paperwork requirements. When the Program is implemented, vehicle manufacturers will be required to submit paperwork demonstrating compliance with the emission standards and other requirements of the Program. Motor vehicle dealers, leasing and rental agencies and other registrants and persons seeking title of new motor vehicles must demonstrate to the DOT's Bureau of Motor Vehicles that new vehicles subject to the Program are those certified by California.
H. Pollution Prevention
The Federal Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101--13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials or the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. This final-form rulemaking incorporated the following pollution prevention provisions and incentives.
The existing regulations and the final-form rulemaking give vehicle manufacturers the freedom to select technologies that prevent pollution. Similarly, vehicle manufacturers are given the freedom to select exhaust treatment technologies to meet the requirements. Air pollution will be reduced by requiring vehicle manufacturers to produce vehicles that lower emissions at their source.
I. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 21, 2006, the Department submitted a copy of the notice of proposed rulemaking, published at 36 Pa.B. 715, to IRRC and the Chairpersons of the House and Senate Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 1, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 2, 2006, and approved the final-form rulemaking.
K. 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, 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 regulations do not enlarge the purpose of the proposed rulemaking published at 36 Pa.B. 715.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.
(5) These regulations are necessary for the Commonwealth to achieve and maintain ambient air quality standards and to satisfy related CAA requirements.
L. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 121 and 126, are amended by amending §§ 121.1, 126.401, 126.411--126.413, 126.421--126.425, 126.431, 126.432 and 126.441; by deleting § 126.402; and by adding § 126.451 to read as set forth in Annex A, with ellipses referring to the existing text of the 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 of the Board shall submit this order and Annex A to IRRC and the Senate and House 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) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
KATHLEEN A. MCGINTY,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa. B. 7082 (November 18, 2006).)
Fiscal Note: Fiscal Note 7-398 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE III. AIR RESOURCES
CHAPTER 121. GENERAL PROVISIONS § 121.1. Definitions.
The definitions in section 3 of the act (35 P. S. § 4003) apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Dealer--A person who is engaged in the sale or distribution of new motor vehicles or new motor vehicles to the ultimate purchaser as defined in section 216(4) of the Clean Air Act (42 U.S.C.A. § 7550(4)).
De minimis emission increase--An increase in actual or potential emissions which is below the threshold limits specified in § 127.203 (relating to facilities subject to special permit requirements).
* * * * * Fleet average--For the purposes of motor vehicles subject to Pennsylvania's Clean Vehicles Program requirements, a motor vehicle manufacturer's average vehicle emissions of all NMOG emissions from vehicles which are produced and delivered for sale in this Commonwealth in any model year.
* * * * * LDT--light-duty truck-
(i) For purposes of § 129.52 (relating to surface coating processes), a light-duty truck is a motor vehicle rated at 8,500 pounds gross vehicle weight or less which is designed primarily for purposes of transportation or major components of the vehicle, including, but not limited to, chassis, frames, doors and engines.
(ii) For purposes of Chapter 126, Subchapter D (relating to the Pennsylvania Clean Vehicles Program), a light-duty truck is a motor vehicle rated at 8,500 pounds gross vehicle weight or less which is designed primarily for purposes of transportation of property or is a derivative of such a vehicle, or is available with special features enabling off-street or off-highway operation and use.
LDV--light-duty vehicle--A passenger car or light-duty truck.
* * * * * Lease custody transfer--The transfer of produced crude oil or condensate, after processing or treating in the producing operations, from storage tanks or automatic transfer facilities to pipelines or other forms of transportation.
Limited access space--Internal surfaces or passages of an aerospace vehicle or component to which coatings cannot be applied without the aid of an airbrush or a spray gun extension for the application of coatings.
* * * * * NETS-NOx Emissions Tracking System--The computerized system used to track NOx emissions from NOx affected sources.
NMOG--Nonmethane organic gases.
* * * * * Offset vehicle--A light-duty vehicle which has been certified by California as set forth in Title 13 CCR, Division 3, Chapter 1.
* * * * * York air basin--The political subdivisions in York County of Manchester Township, North York Borough, Spring Garden Township, Springettsbury Township, West Manchester Township, West York Borough and City of York.
CHAPTER 126. MOTOR VEHICLE AND FUELS PROGRAMS
Subchapter D. PENNSYLVANIA CLEAN VEHICLES PROGRAM
GENERAL PROVISIONS § 126.401. Purpose.
(a) This subchapter establishes a clean vehicles program under section 177 of the Clean Air Act (42 U.S.C.A. § 7507) designed primarily to achieve emission reductions of the precursors of ozone and other air pollutants from new motor vehicles.
(b) The subchapter adopts and incorporates by reference certain provisions of the California Low Emission Vehicle Program.
(c) The subchapter also exempts certain new motor vehicles from the Pennsylvania Clean Vehicles Program.
(d) The Department may not implement or enforce any vehicle emission standard which is not legally permitted to be regulated under the Clean Air Act or other applicable Federal or State law or regulation.
§ 126.402. (Reserved).
LOW EMISSION VEHICLES § 126.411. General requirements.
(a) The Pennsylvania Clean Vehicles Program requirements apply to all new passenger cars and light-duty trucks sold, leased, offered for sale or lease, imported, delivered, purchased, rented, acquired, received, titled or registered in this Commonwealth starting with the 2008 model year and each model year thereafter.
(b) The provisions of the California Low Emission Vehicle Program, Title 13 CCR, Division 3, Chapters 1 and 2, are adopted and incorporated herein by reference, and apply except for the following:
(1) The zero emissions vehicle percentage requirement in Title 13 CCR, Division 3, Chapter 1, § 1962.
(2) The emissions control system warranty statement in Title 13 CCR, Division 3, Chapter 1, § 2039.
§ 126.412. Emission requirements.
(a) Starting with the model year 2008, a person may not sell, import, deliver, purchase, lease, rent, acquire, receive, title or register a new light-duty vehicle, subject to the Pennsylvania Clean Vehicles Program requirements, in this Commonwealth that has not received a CARB Executive Order for all applicable requirements of Title 13 CCR, incorporated herein by reference.
(b) Starting with the model year 2008, compliance with the NMOG fleetwide average in Title 13 CCR, Division 3, Chapter 1, § 1961 shall be demonstrated for each motor vehicle manufacturer based on the number of new light-duty vehicles delivered for sale in this Commonwealth.
(c) Credits and debits for calculating the NMOG fleet average shall be based on the number of light-duty vehicles delivered for sale in this Commonwealth and may be accrued and utilized by each manufacturer according to procedures in Title 13 CCR, Division 3, Chapter 1.
(d) NMOG fleet average credits generated during the 2008, 2009 and 2010 model years may be applied toward any of the model years 2008 through 2010 for the purpose of demonstrating compliance with subsections (b) and (c). The credits generated during this period may be applied at full value for any of the Model Years 2008--2010.
(e) New motor vehicles subject to this subchapter must possess a valid emissions control label which meets the requirements of Title 13 CCR, Division 3, Chapter 1.
§ 126.413. Exemptions.
(a) The following new motor vehicles are exempt from the Pennsylvania Clean Vehicles Program requirements of this subchapter:
(1) Emergency vehicles.
(2) A light-duty vehicle transferred by a dealer to another dealer for ultimate sale outside of this Commonwealth.
(3) A light-duty vehicle transferred for use exclusively off-highway.
(4) A light-duty vehicle transferred for registration out- of-State.
(5) A light-duty vehicle granted a National security or testing exemption under section 203(b)(1) of the Clean Air Act (42 U.S.C.A. § 7522(b)(1)).
(6) A light-duty vehicle held for daily lease or rental to the general public which is registered and principally operated outside of this Commonwealth. For purposes of this paragraph, a light-duty vehicle is deemed to be principally operated outside of this Commonwealth if it is registered outside of this Commonwealth in accordance with the Inter-Jurisdictional Agreement on Apportioning Vehicle Registration Fees developed under the Intermodal Surface Transportation and Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914), and known as the International Registration Plan, or a successor plan for apportioning vehicle registration fees internationally.
(7) A light-duty vehicle engaged in interstate commerce which is registered and principally operated outside of this Commonwealth.
(8) A light-duty vehicle 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.
(9) A light-duty vehicle transferred by inheritance or court decree.
(10) A light-duty vehicle defined as a military tactical vehicle or engines used in military tactical vehicles including a vehicle or engine excluded from regulation under 40 CFR 85.1703 (relating to application of section 216(2)).
(11) A light-duty vehicle titled or registered in this Commonwealth before December 9, 2006.
(12) A light-duty vehicle having a certificate of conformity issued under the Clean Air Act and originally registered in another state by a resident of that state who subsequently establishes residence in this Commonwealth and upon registration of the vehicle provides satisfactory evidence to the Department of Transportation of the previous residence and registration.
(13) A vehicle transferred for the purpose of salvage.
(b) To title or register an exempted vehicle, the person seeking title or registration shall provide satisfactory evidence, as determined by the Department of Transportation, demonstrating that the exemption is applicable.
APPLICABLE NEW MOTOR VEHICLE TESTING § 126.421. New motor vehicle certification testing.
(a) 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 as meeting the motor vehicle requirements of Title 13 CCR, Division 3, Chapter 1, § 1961, as determined by testing in accordance with Title 13 CCR, Division 3, Chapter 2.
(b) For purposes of complying with subsection (a), new vehicle certification testing determinations and findings made by CARB are applicable and shall be provided by motor vehicle manufacturers to the Department upon a written request.
§ 126.422. New motor vehicle compliance testing.
(a) Prior to being offered for sale or lease in this Commonwealth, new motor vehicles subject to the Pennsylvania Clean Vehicles Program requirements of this subchapter must be certified as meeting the motor vehicle requirements of Title 13 CCR, Division 3, Chapter 1, § 1961, as determined by New Vehicle Compliance Testing, conducted in accordance with Title 13 CCR, Division 3, Chapter 2.
(b) For purposes of complying with subsection (a), new vehicle compliance testing determinations and findings made by CARB are applicable and shall be provided by motor vehicle manufacturers to the Department upon a written request.
§ 126.423. Assembly line testing.
(a) Each manufacturer of new motor vehicles subject to the Pennsylvania Clean Vehicles Program requirements of this subchapter, certified by CARB and sold or leased in this Commonwealth, shall conduct inspection testing and quality audit testing in accordance with Title 13 CCR, Division 3, Chapter 2.
(b) For purposes of complying with subsection (a), inspection testing and quality audit testing determinations and findings made by CARB are applicable and shall be provided by motor vehicle manufacturers to the Department upon a written request.
(c) If a motor vehicle manufacturing facility which manufactures vehicles for sale in this Commonwealth certified by CARB is not subject to the inspection testing and quality audit testing requirements of CARB, the Department may, after consultation with CARB, require testing in accordance with Title 13 CCR, Division 3, Chapter 2. Upon a manufacturer's written request and demonstration of need, functional testing under the procedures incorporated in Title 13 CCR, Division 3, Chapter 2, of a statistically significant sample, may substitute for the 100% testing rate required in Title 13 CCR, Division 3, Chapter 2, with the written consent of the Department.
§ 126.424. In-use motor vehicle enforcement testing.
(a) For purposes of detection and repair of motor vehicles subject to the Pennsylvania Clean Vehicles Program requirements which fail to meet the motor vehicle emission requirements of Title 13 CCR, Division 3, Chapter 1, the Department may, after consultation with CARB, conduct in-use vehicle enforcement testing in accordance with the protocol and testing procedures in Title 13 CCR, Division 3, Chapter 2.
(b) For purposes of compliance with subsection (a), in-use vehicle enforcement testing determinations and findings made by CARB are applicable and shall be provided by motor vehicle manufacturers to the Department upon a written request.
(c) The results of testing conducted under this section will not affect the result of any emission test conducted under 67 Pa. Code Chapter 177 (relating to enhanced emission inspection).
§ 126.425. In-use surveillance testing.
(a) 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.
(b) For purposes of program planning and analysis, in-use surveillance testing determinations and findings made by CARB are applicable and shall be provided by motor vehicle manufacturers to the Department upon a written request.
(c) The results of in-use surveillance testing conducted under this section will not affect the result of any emission test conducted under 67 Pa. Code Chapter 177 (relating to enhanced emission inspection).
MOTOR VEHICLE MANUFACTURERS' OBLIGATIONS § 126.431. Warranty and recall.
(a) A manufacturer of new motor vehicles subject to the Pennsylvania Clean Vehicles Program requirements of this subchapter which are sold, leased, offered for sale or lease, titled or registered in this Commonwealth, shall warrant to the owner that each vehicle must comply over its period of warranty coverage with the requirements of Title 13 CCR, Division 3, Chapter 1, §§ 2035--2038, 2040 and 2041.
(b) Each motor vehicle manufacturer shall, upon a written request, submit to the Department failure of emission-related components reports, as defined in Title 13 CCR, Division 3, Chapter 2, for motor vehicles subject to the Pennsylvania Clean Vehicles Program in compliance with the procedures in Title 13 CCR, Division 3, Chapter 2. For purposes of compliance with this subsection, a manufacturer may submit copies of the reports submitted to CARB.
(c) For motor vehicles subject to the Pennsylvania Clean Vehicles Program, any voluntary or influenced emission-related recall campaign initiated by any motor vehicle manufacturer under Title 13 CCR, Division 3, Chapter 2, shall extend to all motor vehicles sold, leased, offered for sale or lease, titled or registered in this Commonwealth that would be subject to the recall campaign if sold, leased, offered for sale or lease or registered as a new motor vehicle in California, unless within 30 days of CARB approval of the recall campaign, the manufacturer demonstrates, in writing, to the Department's satisfaction that the recall campaign is not applicable to vehicles sold, leased, offered for sale or lease, titled or registered in this Commonwealth.
(d) For motor vehicles subject to the Pennsylvania Clean Vehicles Program, any order issued by or enforcement action taken by CARB to correct noncompliance with any provision of Title 13 CCR, which results in the recall of any vehicle pursuant to Title 13 CCR, Division 3, Chapter 2, shall be deemed to apply to all motor vehicles sold, leased, offered for sale or lease, titled or registered in this Commonwealth that would be subject to the order or enforcement action if sold, leased, offered for sale or lease or registered as a new motor vehicle in California, unless within 30 days of issuance of the CARB action, the manufacturer demonstrates, in writing, to the Department's satisfaction that the action is not applicable to vehicles sold, leased, offered for sale or lease, titled or registered in this Commonwealth.
§ 126.432. Reporting requirements.
(a) For the purposes of determining compliance with the Pennsylvania Clean Vehicles Program, commencing with the 2008 model year, 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 test group over that model year in this Commonwealth.
(b) For purposes of determining compliance with the Pennsylvania Clean Vehicles Program, each motor vehicle manufacturer shall submit annually to the Department, by March 1 of the calendar year following the close of the completed model year, a report of the fleet average NMOG emissions of its total deliveries for sale of LDVs in each test group for Pennsylvania for that particular model year. The fleet average report, calculating compliance with the fleetwide NMOG exhaust emission average, shall be prepared according to the procedures in Title 13 CCR, Division 3, Chapter 1.
(c) Fleet average reports must, at a minimum, identify the total number of vehicles, including offset vehicles, sold in each test group 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.
(d) Compliance with the NMOG fleet average for the 2008, 2009 and 2010 model years must be demonstrated following the completion of the 2010 model year.
MOTOR VEHICLE DEALER RESPONSIBILITIES § 126.441. Responsibilities of motor vehicle dealers.
A dealer may not sell, offer for sale or lease, or deliver a new motor vehicle subject to this subchapter unless the vehicle has received the certification described in §§ 126.421 and 126.422 (relating to new motor vehicle certification testing; and new motor vehicle compliance testing), and conforms to the following standards and requirements contained in Title 13 CCR, Division 3, Chapter 2, § 2151:
(1) Ignition timing is set to manufacturer's specification with an allowable tolerance of +3°.
(2) Idle speed is set to manufacturer's specification with an allowable tolerance of +100 revolutions per minute.
(3) Required exhaust and evaporative emission controls including exhaust gas recirculation (EGR) valves, are operating properly.
(4) Vacuum hoses and electrical wiring for emission controls are correctly routed.
(5) Idle mixture is set to manufacturer's specification or according to manufacturer's recommended service procedure.
DEPARTMENT RESPONSIBILITIES § 126.451. Responsibilities of the Department.
The Department will do the following:
(1) Monitor and advise the EQB of any proposed or final-form rulemakings under consideration by CARB or its successor that amend in Title 13 CCR, Division 3, Chapters 1 and 2, incorporated by reference in this subchapter.
(2) The Department will:
(i) Prepare a Regulatory Analysis Form to be submitted to the EQB and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for each proposed or final CARB rulemaking amending in Title 13 CCR, Division 3, Chapters 1 and 2 incorporated by reference in this subchapter. The Department will complete the relevant provisions of the Regulatory Analysis Form as practical, including a cost/benefit analysis of the proposed or final CARB rulemaking.
(ii) Evaluate the estimated incremental cost to manufacture vehicles that comply with the California Low Emission Vehicle Program compared to the cost to manufacture vehicles that comply with the Federal Tier II vehicle emissions regulations, or its successor, promulgated under section 177 of the Clean Air Act (42 U.S.C.A. § 7507) to the extent data is available. This evaluation will be conducted on any proposed or final-form rulemakings under consideration by CARB or its successor amending in Title 13 CCR, Division 3, Chapters 1 and 2 incorporated by reference in this subchapter and will be distributed to the EQB and the Chairpersons of the House and Senate Environmental Resources and Energy Committees.
(iii) Submit comments on proposed or final-form rulemakings amending in Title 13 CCR, Division 3, Chapters 1 and 2 incorporated by reference in this subchapter to CARB on behalf of the residents of this Commonwealth.
(3) The Department, in conjunction with the Department of Transportation, will study and evaluate the feasibility of modifying the Pennsylvania vehicle emission inspection program. In performing the study and evaluation, the Department, in conjunction with the Department of Transportation, will consider the additional reductions in NOx, VOCs and other pollutants to be achieved through implementation of the requirements in Title 13 CCR, Division 3, Chapters 1 and 2. The Department will submit the findings and recommendations to the EQB no later then September 10, 2007.
(4) As soon as possible, but no later June 11, 2007, the Department will notify the EQB of the specific reductions in NOx, VOCs, CO2 and any other reductions approved by the EPA as a result of the incorporation of the Pennsylvania Clean Vehicles Program in the Commonwealth's SIP. The report must include a comparison of the incremental benefit reductions derived using EPA-approved methodology versus reductions which would have been achieved under the Federal Tier II vehicle emission standards.
[Pa.B. Doc. No. 06-2406. Filed for public inspection December 8, 2006, 9:00 a.m.]
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