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Adopted 6 NYCRR Parts 218 and 200 Revised Regulatory Impact Statement Summary

1. Statutory authority

The statutory authority for this amendment is the Environmental Conservation Law (ECL) Sections 1-0101, 1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 19-1101, 19-1103, 19-1105, 71-2103, 71-2105 and Section 177 of the federal Clean Air Act (42 USC 7507).

2. Legislative objectives

Articles 1 and 3 of the ECL set out the overall state policy goal of reducing air pollution and providing clean, healthy air for the citizens of New York. In addition to the general powers and duties of the Department and Commissioner to prevent and control air pollution found in Articles 1 and 3 of the ECL, Article 19 of the ECL was specifically adopted for the purpose of safeguarding the air resources of New York from pollution. The Department is "expressly authorized to promulgate extensive regulations limiting exhaust emissions from motor vehicles including adoption of California certification standards." (See MVMA v. Jorling, 152 Misc.2d 405 (N.Y. Sup. September 3, 1991.) This authority also specifically includes promulgating rules and regulations for preventing, controlling or prohibiting air pollution in such areas of the State as shall or may be affected by air pollution, and provisions establishing areas of the State and prescribing for such areas (1) the degree of air pollution or air contamination that may be permitted therein, and (2) the extent to which air contaminants may be emitted to the air by any air contamination source. In addition, this authority also includes the preparation of a general comprehensive plan for the control or abatement of existing air pollution and for the control or prevention of any new air pollution recognizing various requirements for different areas of the State.

The Department is amending existing greenhouse gas (GHG) standards which were originally adopted November 8, 2005 and revised periodically. This adopted revision clarifies that the deemed-to-comply (DTC) provision for model years 2021-2025 only applies to those federal standards which were last amended as part of the October 16, 2015 rulemaking. This regulation package will further the goals of reducing air pollution from motor vehicles by requiring cleaner California certified vehicles and engines be sold in New York. This is not a mandate on local governments pursuant to Executive Order 17.

3. Needs and benefits

New York has made considerable progress in improving its air quality; however, several areas of the State still do not meet federal health based national ambient air quality standards (NAAQS) for ozone and have been categorized as non-attainment areas1. The Department is also tasked with mitigating the effects of global warming. The Department has the obligation to regulate and mitigate criteria pollutant and greenhouse gas (GHG) emissions from mobile sources to safeguard the health of State residents and protect the State's environment.

On-road mobile sources in New York emit a substantial portion of ozone precursors. In 2014, on-road light-duty vehicles emitted approximately 65,600 tons of volatile organic compounds (VOC) and 72,600 tons of nitrogen oxides (NOx) annually2. In 2014, the transportation sector accounted for approximately 34 percent of all GHG emissions in New York State3. It is essential that the Department continue to adopt stringent mobile source emissions standards to protect human health and the environment.

Increased concentrations of ground-level ozone that is directly related to increased GHG emissions, can promote respiratory illness in children and the elderly, and exacerbate pre-existing respiratory illnesses. Ground-level ozone can also impair lung function in otherwise healthy people. This can result in significant hospitalization costs and mortality rates, both of which are higher in New York State than the national average. In 2011, the total cost of asthma related hospitalization in New York State was approximately $660 million4. Approximately 258 State residents per year died from asthma during the 2009 to 2011 timeframe5.

Global warming may have adverse impacts on human health and the environment. These impacts include increased heat illnesses and mortality, respiratory illnesses from increased formation of ground-level ozone and the introduction or spread of vector-borne illnesses. Global warming may adversely impact New York State's shoreline, drinking water sources, agriculture, forests and wildlife diversity.

New York first adopted the California low emission vehicle program in Part 218 in 1990, and has updated Part 218 frequently to maintain identical standards for a given weight class as required under Section 177 of the Act. The Department initially adopted California GHG standards November 8, 2005. The GHG standards were revised June 6, 2010 to allow vehicle manufacturers the voluntary enforcement option to demonstrate compliance based on pooled vehicle sales rather than state-by-state vehicle sales.

DEC adopted the next GHG revision on November 2, 2010; it incorporated a DTC provision for model years 2012-2016. The DTC provision gives vehicle manufacturers the voluntary enforcement option of demonstrating compliance using less stringent federal GHG standards in lieu of existing California standards. DEC adopted updated California GHG standards for model years 2017-2025 on November 9, 2012 as part of the Advanced Clean Cars (ACC) standards. DEC adopted the latest GHG revision on October 16, 2015, which incorporated an extension of the DTC provision for model years 2017-20256.

Recently proposed revised federal GHG standards, and other actions, have necessitated a review of the DTC provision by California, New York, and other Section 177 states. The proposed federal GHG standards rollback the existing standards for model years 2021-2025. This results in federal standards that are significantly less stringent that California's standards adopted in 2012 as part of the ACC program.

The Department is amending Part 218 to incorporate California's latest clarifications to the GHG program. The adopteded revisions clarify that the version of the federal program to which the DTC applies is the program included in federal regulations for model years 2021-2025 that were last amended on October 25, 2016. If U.S. EPA reduces the stringency of the federal standards as proposed, vehicle manufacturers will no longer be allowed to use the enforcement option of demonstrating compliance with less stringent federal GHG standards in lieu of California standards for 2021 and subsequent model years. All new 2021 and subsequent model year passenger cars, light-duty trucks, and medium-duty passenger vehicles up to 10,000 pounds gross vehicle weight rating (GVWR) delivered for sale in New York will be required to be certified to California GHG standards.

DEC estimated GHG emissions benefits of approximately 14 million metric tons in 2035 resulting from the California ACC standards adopted in 2012. While existing federal GHG standards for model years 2017-2025 are less stringent than comparable California standards, applying the reductions nationally would provide a nationwide benefit. The 2015 rulemaking estimated compliance using federal standards would result in approximately 4.5 percent less CO2 equivalent emission reductions in 2025 than would otherwise be achieved under California standards. California, New York, and other Section 177 states determined that the slight decrease in stringency was offset by the additional GHG reductions that would be achieved by nationwide implementation of federal GHG standards.

4. Costs

Potential Impact on Consumers.

The adopted amendments are not expected to result in additional costs for New York State consumers as California's current model year 2021-2025 standards would remain the same.

Potential Impact on Manufacturers

If the U.S. EPA weakens federal GHG standards, beginning with model year 2021, vehicle manufacturers will be required to demonstrate compliance in California, New York, and other Section 177 states utilizing vehicles certified to California standards. They will be required to demonstrate compliance in remaining states utilizing vehicles certified to federal standards. This is identical to the situation that existed prior to adoption of the DTC provision in 2010. The California standards are duly enacted and enforceable under California's Section 209 waiver which was initially granted for these standards in 2009 before the negotiation and agreement that led to the 2012 adoption of the DTC provision7, and subsequently in New York and other states that have adopted California standards under Section 177. However, this will provide a health and environmental benefit to New York.

Potential Impact on Business Competitiveness.

The adopted amendments apply equally to all vehicle manufacturers and affiliated businesses delivering new vehicles for sale in New York. There is currently no automotive manufacturing in New York involving the final assembly of vehicles. Affiliated businesses, such as dealerships and engineering and design facilities, are generally local businesses that compete within the State and are subject to minimal competition from out-of-state businesses. New York dealerships will be able to sell California certified vehicles to states bordering New York, as is currently the case. New York residents will not be able to buy noncompliant vehicles out of state since vehicles must be California certified to be registered in New York. This is currently the case with the existing LEV program and will not change with the proposed revisions. Surrounding states have adopted, or will adopt, identical requirements. The adopted regulation is not expected to impose a competitive disadvantage on New York State businesses.

Potential Impact on Employment.

The adopted amendments are not expected to cause a noticeable change in New York employment. The adopted changes are a clarification of the existing DTC provision.

Potential Impact on Business Creation, Elimination or Expansion.

The adopted regulations are not expected to have any impact on business creation, elimination, or expansion. The adopted changes are a clarification of the existing DTC provision. Failure to adopt this rulemaking, however, will harm New York State businesses that are part of the supply chain for lower emission vehicles, if there are any such businesses.

Potential Costs to Local and State Agencies.

The adopted amendments are not expected to result in any additional costs for local and state agencies. No additional paperwork or staffing requirements are expected.

5. Local government mandates

The adopted amendments do not impose a local government mandate. No additional paperwork or staffing requirements are expected. This is not a mandate on local governments pursuant to Executive Order 17. Local governments have no additional compliance obligations as compared to other subject entities.

6. Paperwork

The adopted revision will not result in any significant paperwork requirements for New York vehicle suppliers, dealers, or government. Implementation of the adopted GHG regulation is not expected to be burdensome in terms of paperwork to vehicle owners/operators.

7. Duplication

There are no relevant state or federal rules or other legal requirements that will duplicate, overlap or conflict with this.

8. Alternatives

New York could choose not to adopt the revisions to California's GHG program and revert to federal motor vehicle standards. The proposed federal rulemaking would freeze GHG standards at model year 2020 levels for model years 2021-2026. These proposed federal standards will be significantly less stringent than the previously adopted California GHG standards.

The option to revert to less stringent, and protective, federal motor vehicle emission standards was considered and ultimately rejected. The proposed federal standards are less protective of human health and the environment and will make it much harder, if not impossible, for New York to meet its GHG reduction goals reflected in Executive Order 166 and to meet and maintain its air quality goals under the National Ambient Air Quality Standards. Executive Order Number 166 calls for reducing New York's GHG emissions 40 percent by 2030 and 80 percent by 2050 from 1990 levels8.

9. Federal standards

As mentioned above, the proposed federal standards are significantly less stringent than California's current standards. The reduced stringency, and resulting degradation to emissions reductions, makes the continued implementation of DTC standards unviable in New York State as it impedes the State's ability to attain and maintain its air quality goals. If the federal government finalizes its rulemaking, New York will require all new vehicles delivered for sale in New York to meet California's GHG standards commencing with the 2021 model year to safeguard the health of New York residents and the environment.

10. Compliance schedule

The adopted GHG regulation revisions will take effect 30 days after filing for 2021 and subsequent model year passenger cars, light-duty trucks, and medium-duty passenger vehicles.

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1 U.S. Environmental Protection Agency. Nonattainment Areas for Criteria Pollutants (Green Book). September 30, 2017. https://www3.epa.gov/airquality/greenbook/hbstateb.html
2 U.S. Environmental Protection Agency. National Emissions Inventory. https://www.epa.gov/air-emissions-inventories/2014-nei-data
3 New York State Energy Research and Development Authority (NYSERDA). New York State Greenhouse Gas Inventory:1990-2014. December 2016, Revised February 2017. Pg S-3. https://www.nyserda.ny.gov/About/Publications/EA-Reports-and-Studies/Energy-Statistics
4 New York State Department of Health. New York State Asthma Surveillance Summary Report. October 2013. Pg 16. http://www.health.ny.gov/statistics/ny_asthma/
5 New York State Department of Health. New York State Asthma Surveillance Summary Report. October 2013. Pg 12. http://www.health.ny.gov/statistics/ny_asthma/
6 6 NYCRR Part 218-8.3(d)
7 https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations
8 https://www.governor.ny.gov/news/no-166-redoubling-new-yorks-fight-against-economic-and-environmental-threats-posed-climate


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