Air Plan Approval; FL; Removal of Motor Vehicle Rules

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), via a letter dated July 2, 2020. The revision removes rules prohibiting tampering with motor vehicle air pollution control equipment and rules concerning visible emissions from motor vehicles. EPA is proposing to remove the tampering rules and visible emissions rules from the SIP pursuant to the Clean Air Act (CAA or Act) and applicable regulations.

DATES:

Comments must be received on or before December 22, 2021.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2020-0362 at http://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 http://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Kelly Sheckler, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9222. Ms. Sheckler can also be reached via electronic mail at sheckler.kelly@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

In 1988, Florida adopted the “Clean Outdoor Air Law” (COAL) to reduce motor vehicle emissions across the State, particularly in six urban counties (Duval, Hillsborough, Pinellas, Palm Beach, Broward, and Miami-Dade) which were designated nonattainment for the 1979 1-hour ozone national ambient air quality standards (NAAQS). The primary purpose of the law was to create a vehicle inspection and maintenance (I&M) program in the six nonattainment counties, which was embodied in Florida Statutes (F.S.) Chapter 325. Additionally, Florida drafted Section 316.2935 F.S. as the statewide component of the law to generally address motor vehicle air pollution control equipment tampering and motor vehicle visible emissions.

In February 1990, FDEP adopted Florida Administrative Code (F.A.C.) Chapters 62-243 and 62-244 to implement certain on-road prohibitions of Section 316.2935 F.S. The on-road rules gave guidance to law enforcement officers in the State on how to exercise their authority to issue noncriminal traffic citations to persons operating any motor vehicle on public roads that has been tampered with or to anyone operating a motor vehicle emitting visible emissions from the vehicle's tailpipe on public roads.

In May 1990 and January 1991, the State modified Chapter 62-243 F.A.C. to implement the portions of Section 316.2935 F.S. that prohibit licensed motor vehicle dealers from offering or displaying for sale, lease, or transfer any vehicle that has been tampered with; require such dealers to certify to each motor vehicle buyer or lessee that the vehicle has been inspected and found to be free of any visual evidence of tampering; and prohibit the operation of tampered motor vehicles on public roads. Section 316.2935(1)(a) F.S. defines tampering to include the removal or disabling of any motor vehicle air pollution control devices or systems installed by the manufacturer except to replace them with an equivalent device or system. Chapter 62-243—Tampering with Motor Vehicles Air Pollution Control Equipment contained seven rules: Rule 62-243.100—“Purpose and Scope;” Rule 62-243.200—“Definitions;” Rule 62-243.300—“Exemptions;” Rule 62-243.400—“Prohibitions;” Rule 62-243.500—“Certification;” Rule 62-243.600—“Enforcement;” and 62-243.700—“Penalties.” EPA approved the amended rules into the Florida SIP in 1992. See 57 FR 24370 and 57 FR 24378 (June 9, 1992). In 2012, in response to a statewide effort to eliminate obsolete and unnecessary rules, Florida repealed all of the rules from Chapter 62-243 F.A.C. except for Rules 62-243.300 and 62.243.500. Florida repealed Rule 62-243.300 in 2017, but Rule 62-243.500 remains in the state rules. Florida repealed the state rules from Chapter 62-243 that repeated the substantive provisions of Section 316.2935 F.S.

The purpose of Chapter 62-244 was to prohibit the operation of any gasoline or diesel-powered vehicle on public roads that emitted visible emissions for more than five continuous seconds. The rules provided exceptions for diesel powered vehicles when the vehicle was accelerating, lugging, or decelerating. Additionally, these rules were intended to support the State's I&M program. Chapter 62-244—Visible Emissions from Motor Vehicles contained six rules: Rule 62-244.100—“Purpose and Scope;” Rule 62-244.200—“Definitions;” Rule 62-244.300—“Exemptions;” Rule 62-244.400—“Prohibitions;” Rule 62-244.500—“Enforcement;” and Rule 62-244.600—“Penalties.” EPA approved these rules with a state-effective date of February 21, 1990 into the Florida SIP in 1992. See 57 FR 24370. In 1995, in response to a statewide effort to eliminate obsolete and unnecessary rules, Florida repealed Chapter 62-244 F.A.C from the state rules because they repeated the substantive provisions of Section 316.2935 F.S.

II. What is EPA's analysis of Florida's submittal?

A. Chapter 62-243 F.A.C.—Tampering With Motor Vehicle Air Pollution Control Equipment

In Florida's July 2, 2020, SIP revision, the State requests the removal of Chapter 62-243 from the Florida SIP in its entirety. As discussed above, Florida has repealed the majority of Chapter 62-243 F.A.C. in response to a statewide effort to remove obsolete and unnecessary rules. The anti-tampering measures in Chapter 62-243 prohibit the offering or displaying for sale, lease, or transfer of nonexempt motor vehicles by licensed motor vehicle dealers; require such dealers to certify to each motor vehicle buyer or lessee that the vehicle has been inspected and found to be free of any visual evidence of tampering; and prohibit the operation of tampered, nonexempt motor vehicles on public roads.

The CAA prohibits tampering with emission controls equipment installed on or in motor vehicles and motor vehicle engines at section 203(a)(3), but it does not require states to adopt anti-tampering measures or include anti-tampering measures in their SIPs. See 42 U.S.C. 7522(a)(3). Additionally, CAA section 203 prohibits the sale or lease of any new vehicle that has been tampered with. See 42 U.S.C. 7522(a)(4). Florida voluntarily implemented anti-tampering laws to prevent tampered vehicles from being dumped into counties without an I&M program, and did not use Chapter 62-243 as a control strategy to ensure attainment or maintenance of the NAAQS or to comply with any CAA provision. Given the air quality analysis in Section II.C, below, the scope of CAA's tampering provisions, the significant penalties associated with violating those provisions, and the fact that Florida did not rely on these anti-tampering rules to meet ambient air quality standards, EPA believes that removal of Chapter 62-243 is consistent with CAA section 110(l) ( i.e., that removal will not interfere with any applicable requirements concerning attainment, reasonable further progress (as defined in section 171), or any other applicable requirements of the CAA).

B. Chapter 62-244 F.A.C.—Visible Emission From Motor Vehicles

In Florida's July 2, 2020, SIP revision, the State requests the removal of Chapter 62-244 from the Florida SIP in its entirety. Chapter 62-244 implements requirements relating to the operation of a motor vehicle on public roads in the State that emit visible emissions from the exhaust tailpipe for more than a continuous period of five seconds. Florida removed Chapter 62-244 in its entirety in 1995 in response to a statewide effort to remove obsolete and unnecessary rules.

The CAA does not require states to adopt measures addressing visible emissions from motor vehicles or include such measures in their SIPs, and Florida did not use Chapter 62-244 as a control strategy to meet any of the NAAQS. Since Florida's adoption of the visible emissions rules and EPA's incorporation of those rules into the SIP approximately thirty years ago, there have been significant advances in motor vehicle technology, including on-board diagnostics (OBD) which are required in all light-duty vehicles with a 1994 onwards model year, and significant fleet turnover ( i.e., old vehicles being replaced with new vehicles that meet more stringent engine standards). Given the current state of motor vehicle technology and fleet turnover, EPA expects that the number of smoking vehicles has reduced significantly since the inclusion of Chapter 62-244 in the SIP and that, given the air quality analysis below and the fact that Florida did not rely on these visible emissions rules to meet ambient air quality standards, removal of the visible emissions rule is consistent with CAA section 110(l). Furthermore, EPA expects that some percentage of smoking vehicles in Florida are caused by vehicle tampering, which remains illegal under the CAA as mentioned in the previous subsection.

C. Evaluation of Relevant NAAQS Status for Motor Vehicle Emissions

There are six NAAQS established to protect human health and the environment. These NAAQS are carbon monoxide (CO), lead, nitrogen dioxide (NO₂), ozone, particulate matter (PM)—including PM_2.5 and PM₁₀ , and sulfur dioxide (SO₂ ). Considering modern fuel types and the science and technology related to emissions from motor vehicles, EPA does not believe that there would be any changes in emissions of lead or PM₁₀ from removing vehicle tampering or visible emissions rules from the Florida SIP. Furthermore, EPA does not believe that SO₂ air quality would be threatened given the mandatory use of ultra-low sulfur (ULSD) diesel fuel. Therefore, this section is focused on evaluating air quality for CO, NO₂, ozone, and PM_2.5 . Florida is in attainment for all NAAQS.

1. Ozone NAAQS

On February 8, 1979 (44 FR 8202), EPA promulgated the 1-hour ozone NAAQS of 0.12 parts per million (ppm). On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone standard of 0.08 ppm. Subsequently, on March 12, 2008, EPA revised both the primary and secondary 8-hour ozone NAAQS to a level of 0.075 ppm to provide increased protection of public health and the environment. See 73 FR 16436 (March 27, 2008). The 2008 ozone NAAQS retain the same general form and averaging time as the 0.08 ppm NAAQS set in 1997 but are set at a more protective level. Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS are attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15. On October 26, 2015 (80 FR 65292), EPA published a final rule lowering the level of the 8-hour ozone NAAQS to 0.070 ppm and retaining the same form and averaging time.

EPA designated all but three areas in Florida as attainment for the 1979 1-hour ozone NAAQS. EPA designated Jacksonville (Duval County) as a CAA section 185A (or “transitional”) area; Tampa-St. Petersburg-Clearwater (Hillsborough and Pinellas Counties) as a marginal nonattainment area; and Miami (Broward, Miami-Dade, and Palm Counties) as a moderate nonattainment area for the 1979 1-hour ozone NAAQS. Subsequently, Florida submitted redesignation requests and maintenance plans for these areas which EPA approved in 1995. See 60 FR 41 (January 3, 1995), 60 FR 62748 (December 7, 1995), and 60 FR 10325 (February 24, 1995), respectively. The entire State was designated as unclassifiable/attainment and attainment/unclassifiable for the 2008 and 2015 8-hour ozone NAAQS, respectively. See 77 FR 30088 (May 12, 2012) and 82 FR 54232 (November 16, 2017).

Currently, Florida is designated as attainment for all ozone NAAQS, and the latest complete monitoring design values (2018-2020) show that all areas in Florida are below the NAAQS with values ranging from 0.057 ppm to 0.067 ppm.

2. PM_2.5 NAAQS

On July 18, 1997, EPA established an annual PM_2.5 NAAQS of 15.0 μg/m , based on a 3-year average of annual mean PM_2.5 concentrations, and a 24-hour PM_2.5 NAAQS of 65 μg/m , based on a 3-year average of the 98th percentile of 24-hour concentrations. ¹⁶ See 62 FR 38652. On September 21, 2006, EPA retained the 1997 annual PM_2.5 NAAQS of 15.0 μg/m³ but revised the 24-hour PM_2.5 NAAQS to 35 μg/m³ , based again on a 3-year average of the 98th percentile of 24-hour concentrations. See 71 FR 61144 (October 17, 2006). On December 14, 2012, EPA retained the 2006 24-hour PM_2.5 NAAQS of 35 μg/m³ but revised the annual primary PM_2.5 NAAQS to 12.0 μg/m³ , based again on a 3-year average of annual mean PM_2.5 concentrations. See 78 FR 3086 (January 15, 2013).

EPA published designations for the 1997 annual PM_2.5 NAAQS on January 5, 2005 (70 FR 944) and April 14, 2005 (70 FR 19844), designating all counties in the Florida as attainment for the 1997 annual PM_2.5 NAAQS. On November 13, 2009 (74 FR 58688), and on January 15, 2015 (80 FR 2206), EPA published notices designating all counties in Florida as unclassifiable/attainment for the 2006 24-hour PM_2.5 NAAQS and the 2012 annual PM_2.5 NAAQS, respectively. The latest complete monitoring design values (2019-2020) show that all areas in Florida are below the 2012 PM_2.5 annual standard, with values ranging from 6.2 μg/m³ to 9.1 μg/m³ . Regarding the 24-hour PM_2.5 standard, the most recent monitoring design values (2018-2020) for the 24-hour standard range from 14 μg/m³ to 20 μg/m³ , below the NAAQS.

3. NO₂ NAAQS

In 1971, EPA set an annual standard for NO₂ at a level of 53 parts per billion (ppb) which has since remained unchanged. See 36 FR 8186 (April 30, 1971). On February 9, 2010, EPA established a 1-hour NO₂ standard set at 100 ppb. See 75 FR 6474. The annual standard from 1971 was retained at 53 ppb based on the annual mean concentration. Id.

EPA designated all counties in Florida as unclassifiable/attainment for the 2010 1-hour NO₂ NAAQS. See 77 FR 9532 (February 17, 2012). Further, EPA has never designated any area in Florida as nonattainment for either NO₂ NAAQS. The latest complete monitoring design value (2020) shows that all areas in Florida are below the annual standard with values ranging from 3 to 13 ppb. Regarding the 1-hour NO₂ standard, the latest complete monitoring design value (2018-2020) shows that all areas in Florida are below the 1-hour NO₂ standard with values ranging from 29 to 43 ppb.

4. CO NAAQS

EPA promulgated the CO NAAQS in 1971 and has retained the primary standards since that time. The primary NAAQS for CO consist of: (1) An 8-hour standard of 9 ppm, not to be exceeded more than once in a year ( i.e., the second highest, non-overlapping 8-hour average concentration cannot exceed the standard); and (2) a 1-hour average of 35 ppm, not to be exceeded more than once in a year.

The entire State has always been designated as unclassifiable/attainment for the CO NAAQS. The latest complete monitoring design values (2019-2020) show that all areas in Florida are below the 8-hour CO standard with values ranging from 0.5 to 1.7 ppm. Regarding the 1-hour CO NAAQS, the latest complete monitoring design value (2019-2020) shows that all areas in Florida are below the 1-hour CO standard with values ranging from 0.8 to 2.3 ppm.

D. Summary of Proposed Conclusions

EPA proposes to find that removal of the vehicle tampering rules from the Florida SIP would satisfy CAA section 110(l) because, as discussed above, the CAA contains strong anti-tampering provisions, there are significant penalties for violating those provisions, Florida did not rely on its tampering rules to meet ambient air quality standards, and Florida's design values are below the level of the relevant NAAQS. EPA also proposes to find that the removal of the visible emissions rule would satisfy section 110(l) because, as discussed above, there have been significant improvements in vehicle engine and emissions technology since the rules were adopted by the State and incorporated into the SIP approximately thirty years ago; there has been, and continues to be, fleet turnover; the CAA's anti-tampering provisions prohibit tampering that could, in some cases, result in visible emissions; and Florida's design values are below the level of the relevant NAAQS. For these reasons, EPA proposes to find that removal of the tampering and visible emissions requirements for the Florida SIP would not interfere with any applicable CAA requirements.

III. Incorporation by Reference

In this document, EPA is proposing to amend regulatory text that includes incorporation by reference. EPA is proposing to remove Chapter 62-243, F.A.C.— Tampering with Motor Vehicle Air Pollution Control Equipment and Chapter 62-244, F.A.C.— Visible Emissions from Motor Vehicles which are incorporated by reference in accordance with the requirements of 1 CFR part 51. EPA has made, and will continue to make, the State Implementation Plan generally available at the EPA Region 4 Office (please contact the person identified in the ” section of this preamble for more information).

IV. Proposed Action

EPA is proposing to remove Chapter 62-243, F.A.C.— Tampering with Motor Vehicle Emission Control Equipment and Chapter 62-244, F.A.C.— Visible Emissions from Motor Vehicles from the Florida SIP. EPA is proposing to approve the removal of these rules from the SIP because removing them is consistent with the CAA and applicable regulations.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided they meet the criteria of the CAA. This proposed action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rulemaking does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Authority: 42 U.S.C. 7401 et seq.