[Federal Register Volume 71, Number 2 (Wednesday, January 4, 2006)]
[Notices]
[Pages 335-336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-8263]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-8018-3]


California State Motor Vehicle Pollution Control Standards; 
Waivers 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 Engine Manufacturers Diagnostics 
regulations for 2007 and subsequent model year heavy-duty vehicle 
engines (2007 EMD standards). By letter dated March 7, 2005, the 
California Air Resources Board (CARB) requested that EPA grant 
California a waiver of federal preemption for its 2007 EMD standards, 
which require the functional monitoring of major emission control 
components/systems.

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-2005-100. The docket is located 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 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-2005-100.
    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, Compliance and 
Innovative Strategies 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 EMD regulations.\1\
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    \1\ The CARB Board approved the 2007 EMD standards by Resolution 
04-16 on May 20, 2004 (See Attachment 3 to CARB's March 7, 2005, 
Waiver Request Letter). The regulations covered by today's waiver 
include title 13, California Code of Regulations (CCR), section 
1971. 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 did not receive any comment suggesting that CARB's 
request should be denied based on the criteria set forth in section 
209(b) of the Act.\2\
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    \2\ EPA published a notice for hearing and comment on July 18, 
2005 (70 FR 41218).
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    CARB determined that its 2007 EMD 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 EMD 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 EMD 
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 
EMD 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

[[Page 336]]

CARB's requirements are inconsistent with section 202(a). Thus, I 
cannot find that California's 2007 California EMD 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 
March 6, 2006. 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: December 22, 2005.
William L. Wehrum,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. E5-8263 Filed 1-3-06; 8:45 am]
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