California State Motor Vehicle Pollution Control Standards;
Waiver of Federal Preemption--Notice of Decision
[Federal Register: April 22, 2003 (Volume 68, Number 77)]
[Notices]
[Page 19811-19813]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap03-73]
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ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-7485-4]
California State Motor Vehicle Pollution Control Standards;
Waiver of Federal Preemption--Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA today, pursuant to section 209(b) of the Clean Air Act
(Act), 42 U.S.C. 7543(b), is granting California its request for a
waiver of federal preemption for its Low-Emission Vehicle amendments
(LEV II Amendments) to its Low-Emission Vehicle (LEV) program. By
letter dated May 30, 2001, the California Air Resources Board (CARB)
requested that EPA grant California a waiver of federal preemption for
its LEV II Amendments and its 1999 zero-emission vehicle amendments
(1999 ZEV Amendments), which primarily: Impose more stringent passenger
car exhaust emission standards on most sport utility vehicles, pick-up
trucks, and mini-vans; create lower tailpipe standards for all light-
and medium-duty vehicles; establish more stringent requirements for
phasing in cleaner vehicles; establish more stringent evaporative
emission standards; and include new mechanisms for the generation of
ZEV credits. CARB submitted subsequent letters to EPA which initially
requested EPA to confirm CARB's determination that its 1999 and 2001
ZEV amendments are within the scope of waivers EPA had previously
granted; ultimately CARB withdrew its requests regarding the 1999 and
2001 ZEV amendments. Today's decision does not address CARB's 1999 or
2001 ZEV amendments.
ADDRESSES: The Agency's Decision Document, containing an explanation of
the Assistant Administrator's decision, as well as all documents relied
upon in making that decision, including those submitted to EPA by CARB,
are available at the EPA's Air and Radiation Docket and Information
Center (Air Docket). Materials relevant to this rulemaking are
contained in Docket No. A-2002-11. The docket is located at The Air
Docket, room B-108, 1301 Constitution Avenue, NW., Washington,
[[Page 19812]]
DC 20460, and may be viewed between 8 a.m. and 5:30 p.m., Monday
through Friday. The telephone number is (202) 566-1742. A reasonable
fee may be charged by EPA for copying docket material.
Electronic copies of this Notice and the accompanying Decision
Document are available via the Internet on the Office of Transportation
and Air Quality (OTAQ) Web site (http://www.epa.gov/OTAQ). Users can
find 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 Web site
(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, Certification and
Compliance Division, U.S. Environmental Protection Agency, Ariel Rios
Building (6405J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Telephone: (202) 564-9256. Fax: (202) 565-2057. E-Mail address:
Dickinson.David@epa.gov.
SUPPLEMENTARY INFORMATION: I have decided to grant California a waiver
of federal preemption pursuant to section 209(b) of the Act for the LEV
II Amendments \1\ to its LEV program. As explained further in EPA's
Decision Document for today's decision, CARB had originally submitted a
request for a waiver of federal preemption for amendments made to its
ZEV program (1999 ZEV Amendments). CARB subsequently sought a ``within
the scope of previous waivers'' confirmation from EPA for its 1999 ZEV
Amendments. Subsequently, CARB also initially sought a within the scope
of previous waivers confirmation for its 2001 ZEV Amendments when they
were adopted. As explained in EPA's notice dated September 26, 2002 (67
FR 60680), CARB withdrew its requests for any EPA consideration of its
1999 and 2001 ZEV Amendments. By today's decision EPA makes no findings
regarding such Amendments.
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\1\ As set forth in the August 5, 1999 adoption of or amendments
to Title 13, California Code of Regulations (CCR), section 1961, the
incorporated ``California Exhaust Emission Standards and Test
Procedures for 2001 and Subsequent Model Year Passenger Cars, Light-
Duty Trucks, and Medium-Duty Vehicles,'' and, with respect to HEVs
(hybrid-electric vehicles), the incorporated ``California Exhaust
Emission Standards and Test Procedures for 2003 and Subsequent Model
Zero-Emission Vehicles and 2001 and Subsequent Model Hybrid Electric
Vehicles in the Passenger Car, Light-Duty Truck and Medium-Duty
Vehicle Classes'' (all portions of this incorporated document that
may pertain to ZEVs only are not considered by EPA in this
determination and all portions of this incorporated document that
pertain to both ZEVs and HEVs or to other types of vehicles are only
considered to the extent they do not pertain to ZEVs); section 1900;
section 1960.1 (with the exceptions noted in CARB's letter to David
Dickinson, EPA, dated August 16, 2002), the incorporated
``California Non-Methane Organic Gas Test Procedures,'' ``California
Exhaust Emission Standards and Test Procedures for 1988 through 2000
Model Year Passenger Cars, Light-Duty Trucks, and Medium-Duty
Vehicles'' and ``California Non-Methane Organic Gas Test
Procedures'' (with the exceptions noted in CARB's letter to David
Dickinson, EPA, dated August 16, 2002), and, with respect to HEVs,
``California Exhaust Emission Standards and Test Procedures for 2003
and Subsequent Model Zero-Emission Vehicles and 2001 and Subsequent
Model Hybrid Electric Vehicles in the Passenger Car, Light-Duty
Truck and Medium-Duty Vehicle Classes'' (all portions of this
incorporated document that may pertain to ZEVs only are not
considered by EPA in this determination and all portions of this
incorporated document that pertain to both ZEVs and HEVs or to other
types of vehicles are only considered to the extent they do not
pertain to ZEVs); section 1965 and the incorporated ``California
Motor Vehicle Emission Control and Smog Index Label
Specifications''; section 1968.1; 1976 and the incorporated
``California Evaporative Emission Standards and Test Procedures for
1978 through 2000 Model Motor Vehicles'' and the new ``California
Evaporative Emission Standards and Test Procedures for 2001 and
Subsequent Model Motor Vehicles'' (EPA's decision applies to CARB's
evaporative emission standards and test procedures only for 2004 and
later model years); sections 2037, 2038, 2062 and the incorporated
``California Assembly-Line Test Procedures for 1998 through 2000
Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles'' and
``California Assembly-Line Test Procedures for 2001 and Subsequent
Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles'';
section 2101 and the incorporated ``California New Vehicle
Compliance Test Procedures''; and sections 2106, 2107, 2110, 2112,
2114, 2119, 2130, 2137-2140, and 2143-2148. EPA also includes CARB's
``LEV II follow-up amendments'' in today's waiver determination.
These amendments, adopted December 27, 2000, were to section 1961
and the ``California Exhaust Emission Standards and Test Procedures
for 2001 and Subsequent Model Passenger Cars, Light-Duty Trucks, and
Medium-Duty Vehicles'' and as explained below, have the effect of
not allowing a manufacturer to certify a ``California-only'' vehicle
family to California exhaust emission standards that are less
stringent than the federal standards to which an equivalent federal
model is certified--in such case the model sold in California must
meet the federal exhaust emission standards to which the federal
model is certified. CARB's waiver request did not include nor does
today's waiver determination include other provisions of the LEV II
follow-up amendments such as the California emission standards for
heavy-duty Otto-Cycle engines that were harmonized with standards
adopted by EPA and are found at section 1956.8.
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Section 209(b) of the Act provides that, if certain criteria are
met, the Administrator shall waive federal preemption for California to
enforce new motor vehicle emission standards and accompanying
enforcement procedures. The criteria include consideration of whether
California arbitrarily and capriciously determined that its standards
are, in the aggregate, at least as protective of public health and
welfare as the applicable Federal standards; whether California needs
State standards to meet compelling and extraordinary conditions; and
whether California's amendments are consistent with section 202(a) of
the Act.
CARB determined that its LEV II Amendments do not cause
California's standards, in the aggregate, to be less protective of
public health and welfare than the applicable Federal standards. No
information has been submitted to demonstrate that California's
standards, in the aggregate, are less protective of public health and
welfare than the applicable Federal standards. Thus, EPA cannot make a
finding that CARB's determination, that its LEV II Amendments are, in
the aggregate, at least as protective of public health and welfare, is
arbitrary and capricious.
CARB has continually demonstrated the existence of compelling and
extraordinary conditions justifying the need for its own motor vehicle
pollution control program, which includes the subject LEV II
Amendments. No information has been submitted to demonstrate that
California no longer has a compelling and extraordinary need for its
own program. Therefore, I agree that California continues to have
compelling and extraordinary conditions which require its own program,
and, thus, I cannot deny the waiver on the basis of the lack of
compelling and extraordinary conditions.
CARB has submitted information that the requirements of its LEV II
Amendments are technologically feasible and present no inconsistency
with federal requirements and are, therefore, consistent with section
202(a) of the Act. No information has been presented to demonstrate
that CARB's requirements are inconsistent with section 202(a) of the
Act, nor does EPA have any other reason to believe that CARB's
requirements are inconsistent with section 202(a). Thus, I cannot find
that California's LEV II Amendments are inconsistent with section
202(a) of the Act. Accordingly, I hereby grant the waiver requested by
California.
This decision will affect not only persons in California but also
the 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
[[Page 19813]]
this is a final action of national applicability.
Under section 307(b)(1) of the Act, judicial review of this final
action may be sought only in the United States Court of Appeal for the
District of Columbia Circuit. Petitions for review must be filed by
June 23, 2003. Under section 307(b)(2) of the Act, judicial review of
this final action may not be obtained in subsequent enforcement
proceedings.
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: April 11, 2003.
Robert Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 03-9910 Filed 4-21-03; 8:45 am]
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