[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Notices]
[Pages 50322-50324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17037]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-7961-1]


California State Motor Vehicle Pollution Control Standards; 
Waiver of Federal Preemption; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice Regarding Waiver of Federal Preemption.

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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 heavy-duty diesel regulations for 
2007 and subsequent model year vehicles and engines (2007 California 
Heavy Duty Diesel Engine Standards) and related test procedures 
including the not-to-exceed (NTE) and supplemental steady-state tests 
(supplemental test procedures) to determine compliance with applicable 
standards. By letter dated July 16, 2004, the California Air Resources 
Board (CARB) requested that EPA grant California a waiver of federal 
preemption for its 2007 California Heavy Duty Diesel Engine Standards, 
which primarily align California's standards and test procedures with 
the federal standards and test procedures for 2007 and subsequent model 
year vehicles and engines.

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 decision are contained 
in Docket No. OAR-2004-0132. The docket is located

[[Page 50323]]

at The Air Docket, room B-108, 1301 Constitution Avenue, NW., 
Washington, 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. 
Additionally, an electronic version of the public docket is available 
through EPA's electronic public docket and comment system. You may use 
EPA dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Although a part of the official docket, 
the public docket does not include Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Once in the electronic docket system, select ``search,'' then key in 
the appropriate docket ID number for Docket OAR-2004-0132.
    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 Web site 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) 343-9256. 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 
2007 California Heavy Duty Diesel Engine Standards.\1\
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    \1\ The CARB Board approved the 2007 Heavy Duty Diesel Engine 
Standards by Resolution 01-38 on October 25, 2001 (See Attachment 1 
to CARB's July 16, 2004 Waiver Request Letter). The regulations 
covered by today's waiver include CARB's amendments to title 13, 
California Code of Regulations (CCR), section 1956.8. The specific 
regulatory text and the incorporated document covered by the 2007 
Heavy Duty Diesel Engine Standards regulation are: section 1956.8, 
title 13, CCR, as shown in Attachment 2 to CARB's Waiver Request 
Letter, and amendments to the related test procedures incorporated 
in section 1956.8(b), ``California Exhaust Emission Standards and 
Test Procedures for 1985 and Subsequent Model Heavy-Duty Diesel 
Engines and Vehicles,'' also shown in Attachment 2. For further 
discussion of the regulations covered by today's decision please see 
the Decision Document.
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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.
    As further explained in the Decision Document supporting today's 
decision, EPA received a series of comments supporting CARB's request 
for a waiver of federal preemption. EPA did not receive any comment 
suggesting that CARB's request should be denied or a decision delayed 
based on the criteria set forth in section 209(b) of the Act. EPA did 
receive comment that the waiver of federal preemption should otherwise 
be delayed, but for the reasons set forth below and further discussed 
in the Decision Document, EPA is granting CARB's request for a waiver 
of federal preemption.
    CARB determined that its 2007 California Heavy Duty Diesel Engine 
Standards 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 2007 
California Heavy Duty Diesel Engine Standards 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 2007 California 
Heavy Duty Diesel Engine Standards. 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 2007 
California Heavy Duty Diesel Engine Standards 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 2007 California 
Heavy Duty Diesel Engine Standards 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 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 
October 25, 2005. 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.


[[Page 50324]]


    Dated: August 19, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.
[FR Doc. 05-17037 Filed 8-25-05; 8:45 am]
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