Title of Regulation: 9VAC5-200. National Low Emission Vehicle Program (Rev. M11) (repealing 9VAC5-200-10 through 9VAC5-200-30).

Statutory Authority: §§ 10.1-1308 and 46.2-1179.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: May 23, 2012.

Effective Date: June 7, 2012.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4510, or email gary.graham@deq.virginia.gov.

Basis: Section 10.1-1308 of the Code of Virginia authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution in order to protect public health and welfare.

Section 46.2-1179.1 of the Code of Virginia provides that the board may adopt clean alternative fuel fleet standards consistent with the federal Clean Air Act and that adoption by the board of an equivalent approval by EPA (such as the NLEV program) removes the authority for those clean alternative fuel fleet regulations.

Purpose: The purpose of the regulation for the National Low Emission Vehicle (NLEV) Program (9VAC5-200) was to require mobile source manufacturers to participate in the federal National Low Emission Vehicle Program (Subpart R, 40 CFR 86), which was a transitional program for the federal Tier 2 standards. 9VAC5-200 was adopted to meet that federal requirement. Subsequently, the requirements of the federal NLEV program were superseded with the February 10, 2000, promulgation of the federal Tier 2 standards which were more restrictive than the NLEV program standards (65 FR 6698). Therefore, a federal requirement to have a Virginia NLEV program in place no longer exists. Additionally, because 9VAC5-200 has no requirements that are applicable to new vehicles after the 2006 model year, there is no longer a need for the NLEV program regulation. This purpose of this amendment is to repeal 9VAC5-200, National Low Emission Vehicle Program, since it is no longer necessary to protect public health and welfare.

Rationale for Using Fast Track Process: 9VAC5-200 is no longer the most restrictive standard for low emission vehicles and is unusable for determining compliance with federal low emission vehicle standards. Additionally, there is a very limited stakeholder group (2 vehicle manufacturers) that could have been affected by this regulation. With the expiration of the program requirements with the 2006 model year, there are no remaining affected stakeholders that would have any objection to the repeal of this regulation. Therefore, no objections to the repeal of the 9VAC5-200 are anticipated.

Substance: 9VAC5-200, the regulation for the National Low Emission Vehicle Program, is repealed in its entirety.

Issues: The primary advantage to the public is the removal of unusable state regulatory requirements, which improves the public's ability to understand and comply with federal regulatory requirements. There are no disadvantages to the public.

The primary advantage to the department is the removal of regulations that are no longer necessary. There are no disadvantages to the department.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. This regulation (9VAC5-200) for the National Low Emission Vehicle (NLEV) Program was adopted by the State Air Pollution Control Board (Board) on January 7, 1999 with an effective date of April 14, 1999, to implement an EPA-approved alternative clean fuel fleet standard for mobile sources. The regulation required mobile source manufacturers to participate in the federal National Low Emission Vehicle Program (40 CFR 86 Subpart R).

On February 10, 2000 the federal NLEV program was superseded by federal Tier 2 standards which were more restrictive than the NLEV program standards (65 FR 6698). Additionally, 9VAC5-200 has no requirements that are applicable to new vehicles after the 2006 model year. Thus the Board proposes to repeal this regulation in its entirety.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current regulations do not effectively produce any requirements for manufacturers or any other entities since there are no requirements that are applicable to new vehicles after the 2006 model year and since in 2010 the federal NLEV program was superseded by federal Tier 2 standards which were more restrictive than the NLEV program standards. Thus repealing these regulations will have no impact beyond reducing potential confusion amongst the public.

Businesses and Entities Affected. Only new vehicle manufacturers were affected by this regulation. Such entities would not be affected by the repeal of this regulation since there are no requirements that are applicable to new vehicles after the 2006 model year and since in 2010 the federal NLEV program was superseded by federal Tier 2 standards which were more restrictive than the NLEV program standards.

Localities Particularly Affected. The proposed repeal of this regulation does not have a disproportionate effect on any particular localities.

Projected Impact on Employment. The proposed repeal of this regulation will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of this regulation will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of this regulation will not affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of this regulation will not affect small businesses.

Real Estate Development Costs. The proposed repeal of this regulation will not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

This action repeals in its entirety 9VAC5-200, which was adopted to implement the federal National Low Emission Vehicle Program (NLEV). 9VAC5-200 is obsolete because the NLEV program has been superseded by federal Tier 2 standards that are more restrictive than the NLEV and because it has no requirements applicable to new vehicles after the 2006 model year.