[Federal Register Volume 68, Number 77 (Tuesday, April 22, 2003)]
[Notices]
[Pages 19811-19813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9910]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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/docs/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: 
[email protected].

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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]
BILLING CODE 6560-50-P