DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Air Quality

EMERGENCY

SECRETARY’S ORDER NO.: 2018-A-0072

Pursuant to 29 Del.C. §10119

1140 Delaware Low Emission Vehicle Program

AUTHORITY

Pursuant to 29 Del.C. §10119, the Department of Natural Resources and Environmental Control adopts the attached emergency amendments to the Delaware Low Emission Vehicle (LEV) Program, 7 Delaware Administrative Code §1140.

These regulation amendments are issued by the Secretary pursuant to the power conveyed by the General Assembly for DNREC to “[m]ake and enforce regulations relating to the protection, care and use of the areas it administers,” 7 Del.C. 4701(a)(4), and to “[e]stablish and promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by the Secretary and which are not inconsistent with the laws of this State.” 29 Del.C. §8003(7).

It should be noted that emergency regulations are intended as interim measures, necessary to avoid the risk of harm to public health, safety, and welfare, pending the formal adoption of regulations pursuant to the Administrative Procedures Act, within the 120-day period (renewable for an additional sixty days) allotted to emergency regulations.

REASON FOR THE EMERGENCY ORDER

The Regulation referenced above relating to the Delaware LEV Program was affected by the recent amendments made by the State of California to its State Code of Regulations, specifically, Regulation Nos. 1961 and 1962. These amendments aimed to clarify that the “deemed to comply” provision embedded in the California LEV III Program holds true with the federal standards adopted in 2012 for Greenhouse Gas (GHG) emissions from light-duty vehicles for the model years 2021-2025. In the absence of interim regulations, Delawareans’ health and environment would be negatively affected by the Safer Affordable Fuel-Efficient rule jointly proposed by both the Environmental Protection Agency and the National Highway Traffic Safety Administration. The interim regulations are an effort to maintain Delaware’s current GHG standards for light-duty vehicles included in model years 2021 to 2025.

According to Section 209 of the Clean Air Act, a two-year lead-time is required for Original Equipment Manufacturers (OEMs) to implement any new regulation enforced for a given model year. Even though the “deemed to comply” clarification is a continuation of the currently adopted standards, the Department wants to ensure that OEMs are aware of the amendments with the proper lead-time. Pursuant to the Clean Air Act, the Department needs to adopt these amendments as of California’s effective date, December 12, 2018, in order to be able to enforce the GHG emission standards for vehicle model year 2021, which commences on January 1, 2019.

The Delaware Administrative Procedures Act requires the Department to propose the amendments and submit for initial publication in the Monthly Register of Regulations, then hold a public hearing no less than 20 days after publication, after which the final regulation may be published in the Register. Given that California’s effective date for the amendments is December 12, 2018, the time constraints of seeking the adoption (final publication) of this amendment by January 1, 2019 prohibit the Department from following the standard rulemaking process.

EFFECTIVE DATE OF ORDER

This Emergency Order shall take effect immediately upon issuance, and shall remain in effect for 120 days; however, at the expiration of 120 days, the Department may choose to renew this Emergency Order once for a period not exceeding 60 days, consistent with 29 Del.C. §10119(3). The Department intends to propose regulations that would supersede the interim regulations upon formal approval, pursuant to the Administrative Procedures Act, and 29 Del.C. §10115.

PETITION FOR RECOMMENDATIONS

The Department will receive, consider, and respond to petitions by any interested person for recommendations or revisions of this Order. Petitions should be presented to the Office of the Secretary, Department of Natural Resources and Environmental Control, 89 Kings Highway, Dover, Delaware, 19901.

ORDER

It is hereby ordered, this 27th day of December, 2018, that the above referenced amendments to 7 Delaware Administrative Code §1140, a copy of which is hereby attached, are adopted pursuant to 29 Del.C. §10119, and are supported by the evidence contained herein.

Shawn M. Garvin

Secretary

1140 Delaware Low Emission Vehicle Program

12/11/2013

1.1 The provisions of this regulation establish in Delaware a Low Emission Vehicle (LEV) program, which incorporates the requirements of the California LEV program.

1.2 The LEV program shall apply to all new model year 2014 and subsequent model year motor vehicles that are passenger cars, light-duty trucks, medium-duty passenger vehicles, and medium-duty vehicles subject to the California LEV program and delivered for sale in Delaware.

2.1 Except as set forth in 2.3 of this regulation no person shall deliver for sale, offer for sale, sell, deliver, purchase, rent, acquire, receive, or register a new model year 2014 or subsequent model-year passenger car, light-duty truck, or medium-duty vehicle within Delaware unless the vehicle has been certified by CARB and has received a CARB Executive Order.

2.2 For the purposes of this regulation, it is presumed that the equitable or legal title to any motor vehicle with an odometer reading of 7,500 miles or more has been transferred to an ultimate purchaser and that the equitable or legal title to any motor vehicle with an odometer reading of fewer than 7,500 miles has not been transferred to an ultimate purchaser.

2.3 The prohibitions contained in 2.1 of this regulation shall not apply to vehicles that are:

2.3.1 Held for daily lease or rental to the general public or engaged in interstate commerce, which are registered and principally operated outside of Delaware;

2.3.2 Test vehicles and emergency vehicles;

2.3.3 Acquired by a resident of Delaware for the purposes of replacing a vehicle registered to such resident, which vehicle was damaged, or became inoperative beyond reasonable repair, or was stolen while out of Delaware; provided that such replacement vehicle is acquired outside of Delaware at the time the previously registered vehicle was either damaged or became inoperative beyond reasonable repair or was stolen;

2.3.4 Transferred by inheritance;

2.3.5 Transferred by court decree;

2.3.6 Issued a certificate of conformity pursuant to the Clean Air Act and originally registered in another state by a resident of that state who subsequently establishes residence in Delaware;

2.3.7 Sold directly from one dealer to another dealer;

2.3.8 Sold for the purpose of being wrecked or dismantled;

2.3.9 Sold exclusively for off-highway use;

2.3.10 Sold for registration outside of Delaware;

2.3.11 Military tactical vehicles; or

2.3.12 Acquired by a Delaware resident serving in the armed forces while stationed in another state.

The following words and terms, when used in this regulation, shall have the following meanings unless the context clearly indicates otherwise.

“Air contaminant emission control system” means the equipment designed for installation on a motor vehicle or motor vehicle engine for the purpose of reducing the air contaminants emitted from the motor vehicle or motor vehicle engine or a system or engine modifications on a motor vehicle which causes a reduction of air contaminants emitted from the motor vehicle engine, including but not limited to exhaust control systems, fuel evaporative control systems and crankcase ventilating systems.

“Business” means an occupation, profession or trade; a person or partnership or corporation engaged in commerce, manufacturing, or a service; a profit-seeking enterprise or concern.

“California Air Resources Board or CARB” means the agency or its successor established and empowered to regulate sources of air pollution in the state of California, including motor vehicles, pursuant to Section 39003, California Health & Safety Code, as amended or supplemented.

“California-certified” (vehicle) means a vehicle having a valid Executive Order stating that the vehicle meets all applicable requirements under applicable sections of Title 13, CCR and approved for sale in California by CARB.

“California low emission vehicle program” means the low emission vehicle program being implemented in the state of California, pursuant to the provisions of the Clean Air Act and the California Code of Regulations.

“CCR” means the California Code of Regulations.

“Certificate of conformity” means that document issued by California Air Resources Board, or the United States Environmental Protection Agency.

“Clean Air Act or CAA” means the Federal Clean Air Act, 42 U.S.C. §§ 7401 et seq., as amended and supplemented.

“Dealer” means any person actively engaged in the business of offering to sell, soliciting or advertising the sale, buying, transferring, leasing, selling or exchanging new motor vehicles and who has an established place of business.

“Delivered for sale” means vehicles that have received a bill of lading for sale in Delaware and are shipped, or are in the process of being shipped to a dealer in Delaware.

“Department” means the Delaware Department of Natural Resources and Environmental Control.

“Emergency vehicle” means any publicly owned vehicle operated by a peace officer in the performance of their duties, any authorized emergency vehicle used for fighting fires or responding to emergency fire calls and any publicly owned authorized emergency vehicle used by an emergency medical technician or –paramedic or any ambulance used by a private entity under contract with a public agency.

“Emission Control Label” means a paper, plastic, metal or other permanent material, welded, riveted or otherwise permanently attached to an area within the engine compartment (if any), or to the engine, in such a way that it will be visible to the average person after installation of the engine in all new vehicles certified for sale in California, in accordance with Title 13, California Code of Regulations Section 1965.

“Emission standards” mean specified limitations on the discharge of air contaminants into the atmosphere.

“Environmental Performance Label” means a paper or plastic decal securely affixed by the manufacturer to a window of all passenger cars, light-duty trucks, and medium-duty passenger vehicles which disclose the global warming and smog score for the vehicle in accordance with Title 13, CCR Section 1965.

“Executive Order” means a document issued by CARB certifying that a specified test group or model year vehicle has met all applicable requirements adopted by CARB pursuant to the applicable sections of Title 13, CCR for the control of specified air contaminants from motor vehicles and is thereby certified for sale in California.

“Federal Fuel Economy and Environmental Label” means a Federal Label that is affixed by the manufacturer to a window on all 2013 and subsequent model year passenger cars, light-duty trucks, and medium-duty passenger vehicles and would deem automobile manufacturers compliant with the federal Economy and Environmental Label published in 40 CFR Parts 85, 86 and 600 as promulgated on July 6, 2011 as compliant with the California Environmental Performance Label requirements. The label must disclose the smog and global warming scores for the vehicle in accordance with Title 13, CCR Section 1965 and the "California Motor Vehicle Emission Control, Smog Index, and Environmental Performance Label Specifications."

“Fleet Average Emission” means a vehicle manufacturer’s average vehicle emissions of all greenhouse gases, non-methane organic gases (NMOG), or NMOG plus oxides of nitrogen (NMOG + NOx), as applicable, from all new vehicles delivered for sale or lease in Delaware in any model-year.

“Greenhouse Gas” means any of the following gases: carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons.

“Greenhouse Gas Credit” means greenhouse gas credit.

“Greenhouse Gas Vehicle Test Group” means vehicles that have an identical test group, vehicle make and model, transmission class and driveline, aspiration method (e.g., naturally aspirated, turbocharged), camshaft configuration, valve train configuration, and inertia weight class.

“Gross vehicle weight rating or GVWR” means the value specified by the manufacturer as the maximum design loaded weight of a single vehicle.

“Heavy-duty Engine” means any engine used to propel a heavy-duty vehicle.

“Heavy-duty Vehicle” means a heavy-duty vehicle as defined at Title 13, CCR, Section 1900.

“Independent Low Volume Manufacturer” means a manufacturer that has been designated by CARB as an independent low volume manufacturer as defined at Title 13, CCR, Section 1900.

“Intermediate volume manufacturer” means a manufacturer that has been designated by CARB as an intermediate volume manufacturer as defined at Title 13, CCR, Section 1900.

“Large volume manufacturer” means a manufacturer that has been designated by the CARB as a large volume manufacturer as defined at Title 13, CCR, Section 1900.

“Light-duty truck” means any 2000 and subsequent model year motor vehicle certified to the standards in Title 13, CCR, Section 1961(a)(1), rated at 8,500 pounds gross vehicle weight or less, and any other motor vehicle rated at 6,000 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.

“Loaded vehicle weight” means the vehicle curb weight plus 300 pounds.

“Manufacturer” means any independent low volume, small, intermediate or large volume vehicle manufacturer as defined at Title 13, CCR, Section 1900.

“Medium-duty passenger vehicle” means medium-duty passenger vehicle as defined at Title 13, CCR, Section 1900.

“Medium-duty vehicle” means medium-duty vehicle as defined at Title 13, CCR, Section 1900.

“Military tactical vehicle” means all land combat and transportation vehicles, excluding rail-based, which are designed for or are in use by any of the United States armed forces.

“Model year” means, for each vehicle manufacturer the period which includes January 1 of the calendar year in which the model is first offered for sale and ends December 31 of the final calendar year of sale or, if the manufacturer has no annual production period, the calendar year. In case of any vehicle manufactured in two or more stages, the time of manufacture shall be the date of completion of the chassis.

“Motor vehicle engine” means an engine that is used to propel a motor vehicle.

“Motor vehicle or vehicle” means every device in, upon, or by which a person or property is or may be transported otherwise than by muscular power, excepting such devices as run only upon rails or tracks and motorized bicycles.

“New motor vehicle engine” means a new engine in a motor vehicle.

“New vehicle” means any vehicle with 7,500 miles or fewer on its odometer.

“NMOG + NOx Credit” means non-methane organic gas plus oxides of nitrogen credit.

“Non-methane organic gas or NMOG” means the total mass of oxygenated and non-oxygenated hydrocarbon emissions.

“Passenger car” means any motor vehicle designed primarily for transportation of individuals and having a design capacity of 12 individuals or fewer.

“Person” means an individual, public or private corporation, company, partnership, firm, association, society or joint stock company, municipality, state, interstate body, or any Board, commission, employee, agent, officer or political subdivision of a state, an interstate body or the United States.

“Placed in service” means having been sold or leased to an end-user and not to a dealer or other distribution chain entity, and having been individually registered for on-road use by the Delaware Division of Motor Vehicles.

“Recall” means: a manufacturer's issuing of notices directly to consumers that vehicles in their possession or control should be corrected; and/or a manufacturer's efforts to actively locate and correct vehicles in the possession or control of consumers.

“Recall Campaign” means that plan approved by the California Air Resources Board or the Department, by which the manufacturer will effect the recall of noncomplying vehicles.

“Sale or sell” means the transfer of equitable or legal title to a motor vehicle or motor vehicle engine to the ultimate purchaser.

“Secretary” means the Secretary of the Department.

“Small Volume Manufacturer” means a manufacturer that has been designated by the CARB as a small volume manufacturer as defined at Title 13, CCR, Section 1900.

“State” means the State of Delaware, unless otherwise specified.

“Test group” means a grouping of vehicles as defined by 40 CFR 86.1827-01, as supplemented or amended, and incorporated herein by reference.

“Test vehicle” means an experimental or prototype motor vehicle that appears to have very low emission characteristics, or a used motor vehicle within which an experimental motor vehicle pollution control device is installed, and which has also received a test vehicle or fleet permit from CARB.

“Ultimate purchaser” means, with respect to any new motor vehicle or new motor vehicle engine, the first person whom in good faith purchases a new motor vehicle or new motor vehicle engine for purposes other than resale.

“USEPA” means the United States Environmental Protection Agency.

“Vehicle identification number or VIN” means a unique, 17 digit, alphanumeric code that the vehicle manufacturer assigns to a vehicle.

12/11/2013

Each model year and subsequent motor vehicle subject to 2.1 of this regulation shall be California-certified.

3/11/2018

5.1 No person, including a manufacturer or dealer, shall deliver for sale or lease, offer for sale or lease, sell or lease, import, acquire, receive, purchase or rent a new vehicle that is a 2014 or subsequent model-year passenger car, light-duty truck, and medium-duty passenger vehicles, or medium-duty vehicle in Delaware unless the vehicle is California-certified and complies with the following criteria:

5.1.1 the exhaust emission standards, as applicable in Title 13, CCR Section 1956.8 (g) or (h), 1960.1, 1961, 1961.1, 1961.2, or 1961.3 and

5.1.2 the environmental performance label requirements for 2014 and subsequent model year vehicles in accordance with Title 13, CCR, Section 1965, and

5.1.3 the evaporative emission standards in Title 13, CCR, Section 1976, and

5.1.4 the refueling emission standards in Title 13, CCR, Section 1978, and

5.1.5 the malfunction and diagnostic system requirements in Title 13, CCR, 1968.2, and

5.1.6 the assembly-line testing procedure requirements in Title 13, CCR, Section 2062, and

5.1.7 the specifications for fill pipes and openings of motor vehicle fuel tanks in Title 13, CCR, Section 2235.

12/11/2013

6.1 Each manufacturer shall meet the following fleet requirements for the new vehicles delivered for sale or lease in Delaware:

6.1.1 Effective for 2014 model-years, each manufacturer shall comply with the fleet average NMOG emission requirements and LEV II phase-in requirements for passenger cars and light-duty trucks which average shall be based on the number of the manufacturer's vehicles subject to 2.1 of this regulation and, for 2014 and subsequent model-years, may earn and bank NMOG credits, both in accordance with Title 13, CCR, Section 1961(c), except that the formula for accruing credits at Title 13, CCR, Section 1961(c) shall be based upon the number of vehicles the manufacturer produces and delivers for sale in Delaware in accordance with this regulation.

6.1.2 Effective for the 2015 and subsequent model-years, each manufacturer shall comply with the fleet average NMOG + NOx emission requirements and the LEVIII phase-in requirements for passenger cars, light-duty trucks and medium-duty vehicles, and may earn and bank NMOG + NOx credits as applicable, all in accordance with Title 13, CCR, Section 1961.2.

6.1.3 Effective for the 2014 through 2016 model-years, each manufacturer shall comply with the fleet average emission greenhouse gas requirements for passenger cars, light-duty trucks and medium-duty passenger vehicles, and for 2014 and subsequent model-years earn and bank GHG credits, in accordance with Title 13, CCR, Section 1961.1.

6.1.4 Effective for the 2017 and subsequent model years, each manufacturer shall comply with the fleet average emission greenhouse gas requirements for passenger cars, light-duty trucks and medium-duty passenger vehicles, and may earn and bank GHG credits, in accordance with Title 13, CCR, Section 1961.3.

6.2 Each new vehicle model subject to 2.1 of this regulation shall satisfy the motor vehicle emission requirements of Title 13, CCR, Sections: 1956.8 (g) or (h), 1960.1, 1961, 1961.1, 1961.2, 1961.3, 1965, 1968.2, 1968.5, 1976, 1978, 2037, 2038, 2062, 2101, 2111, and 2235. A manufacturer shall demonstrate compliance by presenting to the Department upon request copies of the applicable Executive Order.

6.3 Each manufacturer of a vehicle subject to 2.1 of this regulation shall conduct Inspection Testing and Quality Audit Testing in accordance with Title 13, CCR, Section 2062, and shall provide the test results to the Department upon request. A manufacturer shall demonstrate compliance by presenting to the Department, upon request, copies of the test results and the determination and findings made by CARB.

6.4 Each new vehicle subject to 2.1 of this regulation, prior to being offered for sale in Delaware, shall meet the motor vehicle emission requirements of Title 13, CCR, Section 1961, as determined by compliance testing, conducted by CARB in accordance with Title 13, CCR, Sections 2101 through 2110, 2150, and 2151. A manufacturer shall demonstrate compliance by presenting to the Department, upon request, copies of the test results and the determination and findings made by CARB.

6.5 For the purposes of detection and repair of vehicles subject to this regulation failing to meet the motor vehicle emission requirements of Title 13, CCR, Section 1961 the Department may conduct, after consultation with CARB, In-Use Vehicle Enforcement Testing in accordance with the protocol and testing procedures in Title 13, CCR, Section 2140. A manufacturer shall demonstrate compliance by presenting to the Department, upon request, copies of the test results and the determination and findings made by CARB.

3/11/2018

7.1 Each manufacturer of a vehicle subject to 2.1 of this regulation shall warrant to the ultimate purchaser and each subsequent purchaser that the vehicle shall comply over its period of warranty coverage with all requirements of Title 13, CCR, Sections 2035 through 2038, 2040, and 2041.

7.2 Each manufacturer of a vehicle subject to 2.1 of this regulation shall submit to the Department, upon request, a an Emission Warranty Information report as defined at Title 13, CCR, Section 2144.

7.3 For purposes of compliance with 7.2 of this regulation, a manufacturer may submit copies of the Emission Warranty Information report that are submitted to CARB.

7.4 Each manufacturer of a vehicle subject to 2.1 of this regulation shall include the emission control system warranty statement that complies with the requirements of Title 13, CCR, Section 2039. Manufacturers may modify this statement as necessary to inform Delaware vehicle owners of the warranty applicability. The manufacturer shall provide a telephone number appropriate for Delaware residents.

12/11/2013

8.1 Beginning with the 2014 model year, each manufacturer of a vehicle subject to 2.1 of this regulation shall submit annually to the Department, no later than May 1 following the close of the model year, a report itemized by test group and emissions standard documenting total new vehicle deliveries for sale or lease in Delaware.

8.2 Beginning with the 2014 model year, each manufacturer of a vehicle subject to 2.1 of this regulation shall submit annually to the Department, by no later than May 1 following the close of the model year, a report, itemized by test group and emission standard, that demonstrates the manufacturer has met the fleet requirements of Section 6.0 of this regulation for the model year just ended for vehicles delivered for sale in Delaware.

8.3 If a manufacturer wants to bank GHG, NMOG, or NMOG + NOx credits, the manufacturer shall submit annually to the Department, by no later than May 1 following the end of the model-year, a report which demonstrates that such manufacturer has earned GHG, NMOG, or NMOG + NOx credits in Delaware. Credits are to be calculated in the same manner as required by CARB.

8.4 Beginning with the 2014 model year, each dealer of a vehicle exempted under 2.3.7 of this regulation must keep records on all inter or intra-dealer trades of new 2014 or subsequent model-year vehicles that have not been certified by CARB and therefore have not received a CARB Executive Order, and these records shall be made readily available to the Department upon request.

12/11/2013

9.1 Records to support any application, notice, report or amendment submitted to the Department under this regulation shall be maintained for a period of no less than five years after submitting the information to the Department, and shall be made readily available to the Department upon request.

9.2 Failure to comply with any of the obligations or requirements of this regulation shall subject the violator to an enforcement action pursuant to the provisions of 7 Del.C. Ch 60.

9.3 Any order or enforcement action taken by CARB to correct noncompliance with any section of Title 13, CCR, which action results in the recall of any vehicle pursuant to Title 13, CCR, sections 2109 through 2135, shall be applicable in Delaware, except where the manufacturer demonstrates to the Department’s satisfaction within 30 days of issuance of the CARB action that the action is not applicable to vehicles subject to this regulation.

9.4 Any emission-related recall campaign, voluntary or otherwise, initiated by any manufacturer pursuant to Title 13, CCR, Sections 2113 through 2121, shall extend to all similar vehicles subject to 2.1 of this regulation, except where the manufacturer demonstrates to the Department’s satisfaction within 30 days of CARB approval of the campaign that the campaign is not applicable to vehicles subject to 2.1 of this regulation.

3/11/2018

10.1 Unless specifically excluded by this regulation, when a provision of the CCR is incorporated by reference, all notes, comments, appendices, diagrams, tables, forms, figures, and publications are also incorporated by reference.

10.2 The Low Emission Vehicle Program at 7 DE Admin. Code 1140 refers to various sections of Title 13 of the California Code of Regulations (CCR). Wherever 7 DE Admin. Code 1140 refers to a specific section of the CCR, the reference is made to that version of the section as of the section amended date provided for that section in Table 1 of this regulation. The Department hereby incorporates by reference each of the sections of Title 13 CCR that are listed in Table 1 as of such section’s respective section amended date.

10.3 Provisions of the CCR that are excluded from incorporation by reference in this regulation are excluded in their entirety, unless otherwise specified. If there is a cross-reference to a California citation that was not specifically incorporated, the cross-referenced citation is not incorporated by virtue of the cross-reference.

10.4 Nothing in these provisions incorporated by reference from the CCR shall affect the Department's authority to enforce statutes, rules, permits, or orders administered or issued by the Secretary.

10.5 The following documents and sources of Title 13 of the California Code of Regulations (CCR) are incorporated by reference within this regulation:

Table 1

California Code of Regulations (CCR)

Title 13

Provisions Incorporated by Reference

3/11/2018

Any of the documents incorporated by reference may be obtained either from the Department or from the State of California Office of Administrative Law, 300 Capitol Mall, Suite 1250 Sacramento, California 95814-4339 or at the California Office of Administrative Law website at: http://www.oal.ca.gov/.

12/11/2013

Each section of this subchapter is severable. In the event that any section, subsection or division is held invalid in a court of law, the remainder of this subchapter shall continue in full force and effect.