Air Plan Approval; North Carolina; Motor Vehicle Emissions Control Program; Correcting Amendment |
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V. Anne Heard
Environmental Protection Agency
10 April 2017
[Federal Register Volume 82, Number 67 (Monday, April 10, 2017)]
[Rules and Regulations]
[Pages 17144-17146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07035]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2013-0772; FRL-9960-94-Region 4]
Air Plan Approval; North Carolina; Motor Vehicle Emissions
Control Program; Correcting Amendment
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: This direct final action, taken under the authority of the
Clean Air Act (CAA or Act), corrects an error in previously promulgated
rules approving certain elements of the North Carolina state
implementation plan (SIP). The error relates to the North Carolina
SIP's Motor Vehicle Emissions Control Standard rules and the correction
removes a provision of the State's otherwise federally-enforceable
regulations that could result in infringement upon the sovereign
immunity of Federal facilities. The intended effect is to ensure that
the North Carolina SIP is correctly identified in the applicable part
of the Code of Federal Regulations and to eliminate the possibility of
such infringement.
DATES: This direct final rule is effective June 9, 2017 without further
notice, unless EPA receives adverse comment by May 10, 2017. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2013-0772 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mrs. Sheckler can be reached via phone at (404) 562-9992 or
electronic mail at sheckler.kelly@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 182(b)(4) of the CAA requires areas that are designated as
moderate, serious, or severe ozone nonattainment to establish a motor
vehicle inspection and maintenance (I/M) program to ensure that
specified gasoline-fueled motor vehicles do not exceed prescribed
emissions thresholds by requiring that vehicles undergo periodic
emissions testing, including mandatory repairs for vehicles found to
exceed these thresholds. This emissions testing ensures that vehicles
are well maintained and operating as designed.
The North Carolina I/M program began in 1982 in Mecklenburg County
utilizing a ``tail-pipe'' emissions test. From 1986 through 1991 the
program expanded to include eight additional counties (Wake, Forsyth,
Guilford, Durham, Gaston, Cabarrus, Orange and Union County). In 1999,
the North Carolina General Assembly passed legislation to expand the
coverage area for the I/M program in order to gain additional emission
reductions to achieve the 1997 8-hour ozone national ambient air
quality standards in the State. This legislation expanded the I/M
program from nine counties to 48 counties by adding several counties
approximately every six months from July 1, 2003, to July 1, 2006. The
I/M program in the expanded coverage area used on-board diagnostic
(OBD) rather than tail-pipe testing. On August 7, 2002, North Carolina
submitted a SIP revision to amend the I/M regulations included in the
SIP at that time to, among other things, expand the counties subject to
the I/M program as discussed above, require OBD in the subject counties
for all model year (MY) 1996 and newer light duty gasoline vehicles,
and terminate the tail-pipe testing program on January 1, 2006, for the
nine counties subject to continued tail-pipe testing of MY 1995 and
older vehicles.
EPA approved these changes to North Carolina's I/M program into the
SIP on October 30, 2002. See 67 FR 66056. North Carolina submitted
additional SIP revisions related to the State's I/M program on January
31, 2008, May 24, 2010, October 11, 2013, and February 11, 2014. EPA
approved North Carolina's January 31, 2008, May 24, 2010, October 11,
2013, and February 11, 2014, SIP revisions pertaining to state rule
changes to the State's I/M program on February 5, 2015. See 80 FR 6455.
II. Error Correction
The CAA sets forth requirements for Federal facilities which are
located in I/M program areas. These requirements in section 118(c) and
(d) apply to both Federal fleet and Federal employee vehicles. Congress
intended in that section that Federal facilities located in I/M program
areas demonstrate compliance with certain local and State I/M
requirements. When EPA published the I/M rule in 1992, see 57 FR 52950,
the Agency interpreted CAA section 118(c) and (d) as a partial waiver
of the Federal government's sovereign immunity, thereby allowing States
to regulate Federal facilities in their I/M programs.\1\ Accordingly,
EPA established certain SIP requirements for Federal facilities in the
I/M rule. Since that time, the Department of Justice (DOJ) has found
that sections 118(c) and (d) do not waive sovereign immunity for the
Federal government and thus states are without authority to enforce the
section 118(c) and (d) requirements for Federal facilities.\2\ Further,
DOJ found that the express waiver of sovereign immunity in section
118(a) extends only to nondiscriminatory requirements (i.e., each
agency and employee of the Federal government ``shall be subject to,
and comply with, all Federal, State, interstate, and local
requirements, administrative authority, and process and sanctions
respecting the control and abatement of air pollution in the same
[[Page 17145]]
manner, and to the same extent as any nongovernmental entity.''). As
explained below, section 118(a)'s immunity waiver does not extend to
State I/M requirements that, like the North Carolina provision at issue
here, are imposed upon Federal entities in a different manner or to a
different extent than nongovernmental entities.
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\1\ See letter from Gay MacGregor, Director, Regional and State
Programs Division, EPA Office of Air and Radiation, to Mary Jo
Leugers, Virginia Office of the Attorney General (August 28, 1998)
(MacGregor Letter).
\2\ See letter from Lois J. Schiffer, Assistant Attorney
General, Department of Justice Environment and Natural Resources
Division, to Scott Fulton, Acting General Counsel, EPA (July 29,
1998) (Schiffer Letter).
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North Carolina's regulation 15A NCAC 02D.1002(a)(3) identifies
vehicles that are operated on a Federal installation and that meet the
requirements of 40 CFR 51.356(a)(4) as subject to the State motor
vehicle emission standard. This North Carolina regulation thus subjects
certain vehicles operated on Federal installations to State I/M
requirements that do not apply in the same manner and to the same
extent to nongovernmental entities, and it is inconsistent with the
waiver of immunity in section 118(a). As noted in the MacGregor Letter
addressing the issue, removing Federal facility I/M requirements from
SIPs will in no way impact the emissions reductions credits the States
earn for their I/M programs; pursuant to section 118(a), Federal
agencies are required to comply with air pollution control programs to
the same extent as nongovernmental entities and thus will continue to
be subject to programs of general applicability. EPA is therefore
removing from the federally-approved North Carolina SIP regulation 15A
NCAC 02D.1002(a)(3) because that regulation does not apply to vehicles
operated on Federal installations in the same manner and to the same
extent as vehicles owned or operated by nongovernmental entities.
III. Final Action
Pursuant to CAA section 110(k)(6), EPA rescinds its previous
approval of NCAC 02D.1002(a)(3), a provision that sets forth additional
requirements under the vehicle I/M program for motor vehicles operated
on Federal installations that do not apply to nongovernmental entities
and thus is inconsistent with CAA section 118(a). This action will not
result in increases in emissions that would interfere with attainment
or maintenance of any NAAQS or with any other applicable requirement of
the CAA.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely corrects North Carolina's EPA-approved SIP by removing the
State's regulation 15A NCAC 02D.1002 (a)(3), which listed Federal
facilities as applicable to the state motor vehicle emission standard
and 40 CFR 51.356(a)(4), by removing it from the federally-approved
portion of the North Carolina SIP to be consistent with CAA 118. It
imposes no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Furthermore, this action does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This rule also does not have Federalism
implications because it does not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This rule merely removes North Carolina
regulation 15A NCAC 02D.1002 (a)(3) from the federally approved portion
of the North Carolina SIP to be consistent with CAA 118; it also does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant. In addition, this
rule does not involve technical standards, thus the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply. This rule also does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 9, 2017. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See CAA section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by Reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: March 15, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart II--North Carolina
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2. Section 52.1770(c) is amended by revising the entry for ``Sect
.1002'' to read as follows:
Sec. 52.1770 Identification of plan.
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(c) * * *
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Table 1--EPA Approved North Carolina Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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Subchapter 2D Air Pollution Control Requirements
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Section .1000 Motor Vehicle Emissions Control Standards
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Sect .1002..................... Applicability....... 1/1/2014 4/10/2017 [Insert Paragraph (a)(3) of
Federal Register Section .1002 is
citation]. hereby rescinded
as this paragraph
is inconsistent
with the limits on
the waiver of
sovereign immunity
established in
section 118(a) of
the CAA.
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[FR Doc. 2017-07035 Filed 4-7-17; 8:45 am]
BILLING CODE 6560-50-P