[Federal Register Volume 63, Number 72 (Wednesday, April 15, 1998)]
[Notices]
[Pages 18403-18406]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 98-10010]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-5997-1]


California State Motor Vehicle Pollution Control Standards; 
Waiver of Federal Preemption--Notice of Waiver Decision and Within the 
Scope Determination; Notice of Correction and Republication and 
Opportunity for Public Hearing

AGENCY: Environmental Protection Agency.

ACTION: Notice Regarding Waiver of Federal Preemption and Within the 
Scope Determination and Opportunity for Public Hearing.

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SUMMARY: On February 6, 1998, EPA published a Notice Regarding Waiver 
of Federal Preemption and Within the Scope Determination granting 
California a waiver of Federal preemption for certain motor vehicle 
emission standards and determining that certain amendments to its 
vehicle emission warranty statute and regulations were within the scope 
of previous waivers of Federal preemption. (63 FR 6173, February 6, 
1998). Because of administrative error, this Notice was published 
before the Decision Document was signed by the Assistant Administrator 
for Air and Radiation, and thus the effective dates listed in the 
February 6 notice are incorrect. The Decision Document has now been 
signed, and EPA is announcing that decision in this Federal Register 
notice.
    EPA is granting California a waiver of Federal preemption pursuant 
to section 209(b) of the Clean Air Act, as amended, 42 U.S.C. 7543(b) 
(Act), beginning in the 1998 model year to enforce amendments to its 
motor vehicle pollution control program which set new standards, and 
certification and test procedures for newly-established categories of 
``Low-Emission'' medium-duty vehicles (MDVs). Additionally, EPA today 
has determined that California's amendments to its warranty statute and 
regulations for the 1994 and later model years for various motor 
vehicles are within the scope of previous waivers of Federal preemption 
granted pursuant to section 209(b) of the Act to adopt and enforce its 
revised emission standards and accompanying enforcement procedures for 
1979 and later model year vehicles and engines. EPA received a request 
for a hearing on our within the scope determination contained in the 
February 6 publication and will consider that request as applying to 
today's notice as well. Although EPA is not required by the Act to 
offer a hearing on within the scope determinations, after receiving 
this hearing request, EPA has decided to offer the opportunity for a 
hearing regarding whether EPA should reconsider its determination.

DATES: EPA has tentatively scheduled a public hearing for May 8, 1998. 
Any person who wishes to testify on the record at the hearing must 
notify EPA in writing by April 24, 1998 that he or she will attend the 
hearing to present oral testimony regarding EPA's determination. If EPA 
receives one or more requests to testify, this hearing will be held. If 
EPA does not receive any requests to testify, this hearing will be 
canceled. Anyone who plans to attend the hearing should call Robert M. 
Doyle at (202) 564-9258 to determine if this hearing will be held. 
Regardless of whether or not a hearing is held, any party may submit 
written comments regarding EPA's determination by or before June 5, 
1998.

ADDRESSES: If EPA receives one or more requests to testify, EPA will 
hold the May 8, 1998 public hearing announced above at EPA-Judiciary 
Square Building, first floor conference room, 501 3rd Street, NW., 
Washington, D.C. Any requests to testify at the public hearing, and/or 
any comments on the within the scope findings described above should be 
filed with Mr. Robert F. Montgomery, Manager, Engine Compliance 
Programs Group, Engine Programs and Compliance Division (6403J), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington DC 20460.
    The Agency's decisions as well as all documents relied upon in 
reaching these decisions, including those submitted by the California 
Air Resources Board (CARB), are available for public inspection in the 
Air and Radiation Docket and Information Center during the working 
hours of 8:00 a.m. to 4:00 p.m. at the Environmental Protection Agency, 
Air Docket (6102), Room M-1500, Waterside Mall, 401 M Street, SW., 
Washington, DC 20460. All documents submitted in the Low-emission MDV 
waiver request can be found in Docket A-91-71; all documents submitted 
in the within the scope request for the warranty amendments, including 
the request for a hearing recently received, can be found in Docket A-
91-16. Copies of the Decision Document (which discusses both the waiver 
and the within the scope determination) can be obtained from EPA's 
Engine Programs and Compliance Division by contacting Robert M. Doyle, 
as noted below, or can be accessed on the EPA Office of Mobile Sources 
Internet Home Page, also noted below.

FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney/Advisor, 
Engine Programs and Compliance Division (6403J), U.S. Environmental 
Protection Agency, 401 M Street SW., Washington, DC 20460. Telephone: 
(202) 564-9258, FAX:(202) 565-2057, E-Mail: 
Doyle.Robert@EPAMAIL.EPA.GOV.

SUPPLEMENTARY INFORMATION:

I. Obtaining Electronic Copies of Documents

    Electronic copies of this Notice and the accompanying Decision 
Document are available via the Internet on the Office of Mobile Sources 
(OMS) Home page (http://www.epa.gov/OMSWWW/). Users can find these 
documents by accessing the OMS Home Page 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.

II. Procedures for Public Participation

    Any party desiring to make an oral statement on the record at the 
tentatively scheduled public hearing should submit ten (10) copies, if 
feasible, of the proposed testimony and other relevant material to Mr. 
Robert F. Montgomery at the address listed above not later than May 1, 
1998. In addition, the party should submit 15 copies, if feasible, of 
the planned statement to the presiding officer at the time of the 
hearing.
    In recognition that a public hearing is designed to give interested 
parties an opportunity to participate in this proceeding, there are no 
adverse parties as such. Statements by participants will not be subject 
to cross-examination by

[[Page 18404]]

other participants without special approval by the presiding officer. 
The presiding officer is authorized to strike from the record 
statements which he or she deems irrelevant or repetitious or to impose 
reasonable limits on the duration of the statement of any participant.
    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a hearing is held, EPA will keep the record open 
until June 5, 1998. Upon expiration of the comment period, EPA will 
make a final determination on the CARB within the scope request, based 
on the record of the public hearing (if any), relevant written 
submissions, and other information deemed pertinent.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information'' (CBI). 
If a person making comments wants EPA to base its decision in part on a 
submission labeled as CBI, then a nonconfidential version of the 
document which summarizes the key data or information should be 
submitted for the public docket. To ensure that CBI is not 
inadvertently placed in the docket, submissions containing such 
information should be sent directly to the contact person listed above, 
and not to the public docket. Information covered by a claim of 
confidentiality will be disclosed by EPA only to the extent allowed and 
by the procedures set forth in 40 CFR part 2. If no claim of 
confidentiality accompanies the submission when it is received by EPA, 
it made be made available to the public without further notice to the 
person making comments.

III. Low-Emission MDV Standards Waiver Request

    I have decided to grant California a waiver of Federal preemption 
pursuant to section 209(b) of the Act for amendments to its motor 
vehicle pollution control program which will (1) establish three new 
categories of low-emission MDVs based on levels of exhaust emission 
standards; ``Low-Emission Vehicle'' (LEV), ``Ultra Low-Emission 
Vehicle'' (ULEV), and ``Zero-Emission Vehicle'' (ZEV); (2) require 
manufacturers to certify certain minimum percentages of LEV-MDVs and 
ULEV-MDVs beginning in the 1998 Model Year, reaching a maximum 
percentage requirement in Model Year 2003, and (3) establish production 
credit banking and trading provisions to offer flexibility to 
manufacturers unable to meet the minimum percentages.1 A 
comprehensive description of the California low-emission standards and 
accompanying program can be found in the Decision Document for this 
waiver and in materials submitted to the Docket by California and other 
parties.
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    \1\ The waiver request EPA grants today, which pertains to low-
emission MDVs, is part of a comprehensive waiver request from 
California for its LEV program, which includes both light-duty 
vehicles (LDVs) such as passenger cars and light-duty trucks, and 
MDVs which are typically large trucks and other vehicles up to 
14,000 lbs Gross Vehicle Weight Rating. On January 13, 1993 (58 FR 
4166) EPA granted a waiver for the low-emission LDV component of 
California's program, and deferred action on the MDV component of 
the program (the subject of today's waiver). EPA chose to defer this 
action because at the time of the LEV waiver grant, an earlier 
waiver concerning MDVs (Docket A-91-55) was pending. This earlier 
request involved amendments to the California program which 
established new emission standards for MDVs in Model Year 1995 and 
beyond, and new accompanying certification and compliance test 
procedures and durability requirements. Because the low-emission MDV 
standards are amendments to the MDV standards considered in the 
request of Docket A-91-55, EPA needed to decide the earlier request 
before action on the low-emission MDV standards could be taken. On 
September 16, 1994 (announced in 59 FR 48625, September 22, 1994), 
EPA granted a waiver of Federal preemption to California's 1995 and 
beyond MDV standards.
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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 these standards and accompanying enforcement 
procedures do not cause California's standards, in the aggregate, to be 
less protective of public health and welfare than the applicable 
Federal standards. Information presented to me by parties opposing 
California's waiver request did not demonstrate that California 
arbitrarily or capriciously reached this protectiveness determination. 
Therefore, I cannot find California's determination to be arbitrary or 
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 standards and 
procedures. 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 demonstrating that the requirements 
of its emission standards and test procedures are technologically 
feasible and present no inconsistency with Federal requirements and 
are, therefore, consistent with section 202(a) of the Act. Information 
presented to me by parties opposing California's waiver request did not 
satisfy the burden of persuading EPA that the standards are not 
technologically feasible within the available lead time, considering 
costs. Thus, I cannot find that California's amendments will be 
inconsistent with section 202(a) of the Act. Accordingly, I hereby 
grant the waiver requested by California.
    My 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 Appeals for the 
District of Columbia Circuit. Petitions for review must be filed by 
June 15, 1998. 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. 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 18405]]

IV. Warranty Amendments Within the Scope Request

    I have determined that California's amendments to its warranty 
statute and 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 substantive amendments to the emission 
warranty requirements which are applicable under California state law 
to 1990 and subsequent model year passenger cars, light duty trucks and 
medium-duty vehicles require manufacturers to provide the following:
    (1) An emission-related ``defects warranty'' for three years or 
50,000 miles. The manufacturer must warrant that the vehicle is free 
from defects in materials and workmanship which cause the failure of a 
warranted part to be identical in all material respects to the part 
described in the application for certification. The emission-related 
parts that are defective within the period of warranty coverage must be 
repaired or replaced by the manufacturer at no cost to the vehicle 
owner. Thus it need not be shown that the defect causes the vehicle to 
exceed the applicable emission standards, in order to obtain such 
replacement or repair by the manufacturer without charge to the owner.
    (2) A seven year or 70,000 mile ``extended defects warranty'' for 
emission-related parts costing more than $300 to replace. Manufacturers 
are required to identify those emission-related components on the 
existing Emissions Warranty Parts List that cost the consumer over $300 
to replace as of the time of certification and to warranty those for a 
period of seven years/70,000 miles.
    (3) A ``performance warranty'' for three years or 50,000 miles, 
whichever first occurs. Manufacturers must warrant the vehicle will 
pass an inspection and maintenance (SMOG CHECK) test. If a vehicle 
fails the SMOG CHECK test the manufacturer will be liable for the cost 
of the part, labor, diagnosis, and the SMOG CHECK retest to ensure the 
vehicle passes. The manufacturer would not be liable for the failure if 
it demonstrates that the failure was directly caused by abuse, neglect, 
or improper maintenance or repair.
    (4) A prescribed Introductory Statement for owners. Manufacturers 
of all 1991 and subsequent model vehicles produced after January 24, 
1991 must include in their warranty booklet a specified, standardized 
statement that explains in layman's terms the vehicle owner's rights 
and responsibilities regarding the emission control system warranty. 
The manufacturer's detailed warranty statement must follow this 
specified statement.
    (5) Common Nomenclature. All emission-related service and 
certification documents, printed or updated by a manufacturer starting 
with the 1993 model year, must conform to the nomenclature and 
abbreviations in SAE publication J1930 ``Diagnostic Acronyms, Terms, 
and Definitions for Electrical/Electronic Systems''.
    (6) The emission warranty requirements for vehicles and engines 
other than 1990 and subsequent model passenger cars, light-duty trucks, 
and medium-duty vehicles will be continued without substantial change. 
These requirements cover pre-1990 and subsequent model year motorcycles 
and heavy-duty vehicles and engines.
    In a February 4, 1991 letter to EPA, CARB notified EPA of the 
above-described amendments to its warranty regulations affecting 1990 
model year and later vehicles, and requested that EPA confirm that 
these amendments to its warranty statute and regulations, and new 
regulations requiring the use of common nomenclature in certification 
and in-use documentation are within the scope of existing waivers of 
Federal preemption.2 The Executive Officer stated that 
``[t]he regulations do not undermine the Board's prior determination 
that the state standards are, in the aggregate, at least as protective 
of public health and welfare as applicable Federal standards.'' 
3 This statement, however, referred to a finding made by the 
Board before the passage of the Federal Clean Air Act Amendments of 
1990 (CAAA), which required that EPA promulgate new, more stringent 
Federal tailpipe emission standards for light-duty vehicles and light-
duty trucks beginning in the 1994 model year.4
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    \2\ Letter from James D. Boyd, Executive Officer, CARB, to 
William K. Reilly, Administrator, EPA, dated February 4, 1991, at 2 
(hereinafter ``CARB letter'').
    \3\ CARB letter at 5.
    \4\ The CAAA were signed into law on November 15, 1990. New 
certification and new in-use tailpipe emission standards for all 
light-duty vehicles and light-duty trucks, commonly referred to as 
Tier 1 standards, were prescribed in section 203 of the Amendments, 
which added new sections 202(g) and 202(h) to the Clean Air Act 
(CAA). On June 5, 1991 EPA published the Final Rule implementing the 
Tier 1 standards in the Federal Register at 56 FR 25724. In 
addition, section 202(j) of the Act requires promulgation of a Cold 
CO standard. 58 FR 9468 (July 19, 1993).
    In addition, the Federal warranty requirements also changed 
beginning in the 1995 model year. The CAAA significantly modified 
the Federal light-duty requirements. Prior to the amendments the 
period of warranty coverage was generally 5 years/50,000 miles. The 
CAAA, beginning in the 1995 model year, shorten the basic defects 
warranty period to 2 years/24,000 miles but extend it to eight 
years/80,000 miles in the case of catalytic converters, electronic 
emissions control units, onboard diagnostic (OBD) devices, and other 
pollution control devices that meet certain criteria and are 
designated by the Administrator as a ``specified major emission 
control component.'' CAA Section 207(i).
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    In its February 1991 request, CARB compared the California 
standards and the Federal standards as they stood prior to the CAAA; 
the Board did not consider the protectiveness of the California 
standards as compared to the new standards made applicable by the CAAA. 
Consequently, California, at the time of its request had not made an 
initial determination, that its standards, in the aggregate, are as 
protective of public health and welfare as comparable Federal standards 
(including Tier 1) which apply in the 1994 and later model years.
    On October 4, 1991, California requested a waiver of Federal 
preemption for its LEV program standards, which under California state 
law are applicable to 1994 and later model year vehicles (which also is 
when the phase-in of the new Federal Tier 1 standards 
begins).5 In this request, California made a protectiveness 
finding with regard to the California standards as applicable to the 
1994 and later model years compared to the applicable Federal standards 
(including Tier 1) as a basis for the waiver request addressing LEV 
standards. Because California had not made an initial determination 
that its standards, in the aggregate, are as protective of public 
health and welfare as comparable Federal standards (including Tier 1) 
which apply in the 1994 and later model years in the earlier (February 
1991) warranty request, CARB acknowledged, in its October 1991 request 
for a waiver for its LEV standards, the possibility that EPA may 
address the warranty amendments that were part of the February 1991 
request as they apply only through the 1993 model year.6
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    \5\ California Proposed Regulations for Low Emission Vehicle 
Standards and Clean Fuels (August 13, 1990). Letter from James D. 
Boyd, Executive Officer, CARB, to William K. Reilly, Administrator, 
EPA, dated October 4, 1991.
    \6\ Letter from James D. Boyd, Executive Officer, CARB, to 
William K. Reilly, Administrator, EPA, dated October 4, 1991, p. 10, 
footnote 14.
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    EPA announced, on August 14, 1992, its determination that 
California's amendments to its warranty program were within the scope 
of previous waivers only through the 1993 model year.7 EPA 
also stated that, provided California was granted a waiver of

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Federal preemption for its LEV standards, the warranty regulations 
which were the subject of CARB's request for a within-the-scope 
determination would continue to be within the scope of existing waivers 
beyond the 1993 model year so long as they (1) do not undermine 
California's determination that its standards, in the aggregate, are as 
protective of public health and welfare as comparable Federal standards 
(2) do not affect the consistency of California's requirements with 
section 202(a) of the Act, and (3) raise no new issues affecting EPA's 
previous waiver determinations.
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    \7\ 57 FR 38502 (August 25, 1992).
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    On January 7, 1993, EPA granted a waiver of Federal preemption for 
the low-emission LDV component of California's LEV program.8 
EPA also has waived Federal preemption for California's standards 
applicable to 1995 and later model year MDVs.9 In today's 
decision, EPA waives preemption for California's MDV standards for 1998 
and later model year vehicle and engines which are part of the LEV 
Program. EPA has previously determined that California's earlier 
emission warranty regulations were within the scope of previous 
waivers.10 Consistent with these previous determinations, 
EPA now has determined that emission warranty regulations, which are 
the subject of CARB's February 4, 1991 letter, as applied through the 
1994 model year and beyond to passenger cars, light-duty trucks and 
medium-duty vehicles and engines, are within the scope of earlier 
waivers granted for standards.
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    \8\ 58 FR 4166 (January 13, 1993).
    \9\ 59 FR 48625 (September 22, 1994).
    \10\ 37 FR 14831 (July 25, 1972); 44 FR 61096 (October 23, 
1979); 51 FR 12391 (March 26, 1986); 51 FR 15961 (April 22, 1986).
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    With regard to the 1994 and later model years, these amendments do 
not undermine California's determination that its standards, in the 
aggregate are as protective of public health and welfare as comparable 
Federal standards, are not inconsistent with section 202(a) of the Act, 
and raise no new issues affecting the EPA's previous waiver 
determination. Thus these amendments are within the scope of previous 
waivers determinations.11 A full explanation of EPA's 
decision is contained in a determination document which may be obtained 
from EPA as noted above.
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    \11\ Id.
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    My 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.
    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 6, 1998.
Richard D. Wilson,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 98-10010 Filed 4-14-98; 8:45 am]
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