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California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption--Notice of Within-the-Scope Determination

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[Federal Register: January 25, 2001 (Volume 66, Number 17)]
[Notices]
[Page 7751-7753]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja01-23]

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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-6937-2]


California State Motor Vehicle Pollution Control Standards;
Waiver of Federal Preemption--Notice of Within-the-Scope Determination

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice regarding waiver of federal preemption-within-the-scope
determination.

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SUMMARY: On March 26, 1999, EPA published a Notice of Opportunity for
Public Hearing and Public Comment (see 64 FR 14715, March 26, 1999),
regarding California's request to EPA that EPA confirm the California
Air Resources Board's (CARB's) finding that amendments to its zero-
emission vehicle (ZEV) requirements of the low-emission vehicle (LEV)
program are within-the-scope of a waiver of federal preemption EPA had
previously approved (the earlier LEV waiver can be found at 58 FR 4166,
January 13, 1993).
    EPA is determining that California's amendments to the ZEV
requirements of the LEV program, including the repeal of ZEV sales
requirements from 1998 through 2002, are within the scope of previous
waivers of Federal preemption granted pursuant to section 209(b) of the
Clean Air Act (Act) to adopt and enforce its revised emission standards
and accompanying enforcement procedures for 1988 and later model year
vehicles and engines. In conjunction with the Notice of Opportunity for
Public Hearing and Public Comment noted above, EPA held a hearing on
the issues discussed within today's determination, therefore no
additional opportunity for hearing is offered.

ADDRESSES: At the EPA's Air and Radiation Docket and Information
Center, there are copies of the decision document containing an
analysis of CARB's within-the-scope waiver request including:
Information on standards and procedures and records of documents used
in the decision document analysis (Docket A-97-20). The Air Docket
Office is open from 8 to 5:30 p.m. Monday through Friday, room M-1500,
Waterside Mall, 401 M Street, SW., Washington, DC 20460.
    Electronic copies of this Notice and the accompanying Decision
Document are available via the Internet on the Office of Transportation
and Air Quality (OTAQ) website (http://www.epa.gov/OMSWWW). Users can
finds these documents by accessing the OTAQ website and looking at the
path entitled ``Regulations.'' This service is free of charge, except
for any cost you already incur for Internet connectivity. The
electronic Federal Register version of the Notice is made available on
the day of publication on the primary website (http://www.epa.gov/
fedrgstr/EPA-AIR).
    Please note that due to differences between the software used to
develop the documents and the software into which the documents may be
downloaded, changes in format, page length, etc., may occur.

FOR FURTHER INFORMATION CONTACT: David J. Dickinson, Supervisory
Attorney, Certification and Compliance Division, U.S. Environmental
Protection Agency, Ariel Rios Building (6405J), 1200 Pennsylvania
Avenue, NW.,

[[Page 7752]]

Washington, DC 20460. Telephone: (202) 564-9256. Fax: (202) 565-2057.
E-Mail address: Dickinson.David@epa.gov.

SUPPLEMENTARY INFORMATION:

I. ZEV Amendments Within the Scope Request

A. Procedural History

    On January 13, 1993, EPA published a Notice Regarding Waiver of
Federal Preemption granting California a waiver of federal preemption
for the California LEV program. (58 FR 4166). The California LEV waiver
included California's original ZEV requirements.
    In March 1996, CARB amended the LEV program by eliminating the ZEV
sales requirement for model years 1998 through 2002 along with several
other modifications noted above.
    On February 26, 1997, CARB submitted to the Administrator a request
that EPA confirm the CARB Board's determination that the amendments to
its regulations are within-the-scope of the existing LEV waiver. CARB
also entered into, on March 29, 1996, memoranda of agreement (MOAs)
with the seven largest vehicle manufacturers. These MOAs provide for
the introduction of a certain number of ZEVs into the California market
for calendar years 1998 through 2000 and require CARB to perform
certain tasks.
    When EPA receives new waiver requests from CARB, EPA publishes a
notice of opportunity for public hearing and comment and then publishes
a decision in the Federal Register following the public comment period.
In contrast, when EPA receives within-the-scope waiver requests from
CARB, EPA traditionally publishes a decision in the Federal Register
and concurrently invites public comment if an interested party is
opposed to EPA's decision.
    Because EPA had already received written comment on this within-
the-scope request, EPA held a hearing and invited comment on several
issues before issuing today's decision. (See 58 FR 14715, 14716, March
26, 1999). The hearing was held on April 23, 1999. The public comment
period closed on May 10, 1999.
    Subsequent to the hearing and comment period, the United States
Court of Appeals for the First Circuit issued a decision regarding the
State of Massachusetts' adoption of California's MOAs as its own
regulations, including a ruling on the question of whether the MOAs are
federally preempted by section 209(a) of the Act. (See Association of
International Automobile Manufacturers, Inc. v. Commissioner,
Massachusetts Department of Environmental Protection, 208 F.3d 1 (1st
Cir. 2000)).

B. Scope of Review

    EPA may consider CARB's amendments or regulations to be within the
scope of a previously granted waiver if the amendment does not
undermine California's determination that its standards, in the
aggregate, are as protective of public health and welfare as comparable
Federal standards, does not affect the consistency of California's
requirements with section 202(a) of the Act, and does not raise new
issues affecting EPA's previous waiver determination.

C. Decision

    I have determined that California's ZEV amendments to its LEV
regulations as applied in the 1994 model year and beyond are within the
scope of previous waivers of Federal preemption granted pursuant to
section 209(b) of the Act. The basis for this determination is
described in detail in the Decision Document, which can be found in the
docket for this action. The ZEV amendments to the LEV requirements
which are applicable under California state law to 1998 through 2002
model year passenger cars, light-duty trucks, and medium-duty vehicles
require manufacturers to provide the following:
    (1) The elimination of the requirement upon manufacturers to
certify, produce, and offer for sale in California ZEVs in amounts
equal to two percent of their total California sales of passenger cars
and light-duty trucks weighing less than 3,750 pounds beginning with
the 1998 model year, increasing to five percent in the 2001 model year
and ten percent in the 2003 model year (the ten percent ZEV requirement
for the 2003 model year has been retained by California);
    (2) the creation of multiple ZEV credits for vehicles produced
prior to the 2003 model year; and
    (3) the creation of test procedures for determining All-Electric
Vehicle Range.
    In a February 26, 1997 letter to EPA, CARB notified EPA of the
above-described ZEV amendments to its LEV regulations affecting 1988
and subsequent model year vehicles, and requested that EPA confirm that
the ZEV amendments are within the scope of existing waivers of Federal
preemption. The Executive Officer stated that ``[t]he Board found that
the amendments covered by this letter will not cause California motor
vehicle emission standards, in the aggregate, to be less protective of
public health and welfare than applicable Federal standards.* * *'' \1\
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    \1\ CARB letter at 5.
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    On January 7, 1993, EPA granted a waiver of Federal preemption for
California's LEV program.\2\ In doing so, EPA found that CARB's
protectiveness determination was not arbitrary or capricious. As
explained more fully in the Decision Document, EPA finds that CARB's
protectiveness determination is not undermined by the ZEV amendments.
Despite the elimination of the ZEV sales requirements from 1998 to
2002, CARB's NMOG fleet average standard remains the same and CARB's
tiered LEV standards are at least as protective as comparable federal
standards.
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    \2\ 58 FR 4166 (January 13, 1993).
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    In addition, EPA finds that CARB's amendments do not affect their
consistency with section 202(a) of the Act. The elimination of the ZEV
sales requirement places no additional burden on the manufacturers; in
fact, the manufacturers now have additional lead time to develop and
implement ZEV technology. EPA also finds that the test procedure
consistency requirement is not adversely affected by the CARB
amendments as manufacturers of ZEVs are only required to test according
to CARB's procedures. Finally, the ZEV amendments raise no new issues
affecting EPA's previous waiver determination. Thus, these amendments
are within the scope of the previous waiver granted on January 13,
1993.

II. Significance of MOAs

    Within the initial Federal Register notice regarding CARB's
request,\3\ EPA sought comment as to ``the significance of the MOAs and
issues that may arise out of the MOAs and their relevance to the
within-the-scope waiver request CARB has submitted to EPA, addressing
how the MOAs and related issues affect EPA's consideration either under
the within-the-scope or waiver criteria.''
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    \3\ 64 FR 14715, 14716 (March 26, 1999).
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    As more fully explained in the Decision Document, EPA has
determined that the existence of the MOAs does not affect the within-
the-scope determination. EPA believes that it has the authority and
discretion to examine the MOAs, and similar methodologies and realities
in California, to determine whether they have any adverse impact on
either the waiver or within-the-scope criteria. As noted in the
Decision Document, no such adverse impact was found in today's
determination.
    My decision will affect not only persons in California but also the

[[Page 7753]]

manufacturers outside the State who must comply with California's
requirements in order to produce motor vehicles for sale in California.
For this reason, I hereby determine and find that this is a final
action of national applicability.
    As with past waiver decisions, this action is not a rule as defined
by Executive Order 12866. Therefore, it is exempt from review by the
Office of Management and Budget as required for rules and regulations
by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory
Flexibility Act, 5 U.S.C. sec. 601(2). Therefore, EPA has not prepared
a supporting regulatory flexibility analysis addressing the impact of
this action on small business entities.
    Finally, the Administrator has delegated the authority to make
determinations regarding waivers of Federal preemption under section
209(b) of the Act to the Assistant Administrator for Air and Radiation.

    Dated: January 18, 2001.
Robert Perciasepe,
Assistant Administrator for Air and Radiation.
[FR Doc. 01-2174 Filed 1-24-01; 8:45 am]
BILLING CODE 6560-50-P

 
 

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