[Federal Register Volume 64, Number 150 (Thursday, August 5, 1999)]
[Notices]
[Pages 42689-42692]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 99-20200]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-6414-3]


California State Motor Vehicle Pollution Control Standards; 
Waiver of Federal Preemption--Notice of Waiver Decision and Within the 
Scope Determinations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice regarding waiver of federal preemption and within the 
scope determinations.

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SUMMARY: 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), for 1996 to 1998 model year motor vehicle evaporative 
emission standards and test procedures. Additionally, EPA today has 
determined that California's amendments to its evaporative emission 
standards and test procedures for 1995 model year motor vehicles and 
California's amendments regarding ultra-small volume manufacturers in 
1998 model year are within the scope of previous waivers of Federal 
preemption granted pursuant to section 209(b) of the Act and today's 
waiver decision.

DATES: Any objections to the findings in this document regarding EPA's 
determination that California's amendments to its evaporative emission 
standards and test procedures for 1995 model year or the requirements 
applicable to ultra-small volume manufacturers for 1998 model year are 
within the scope of both previous waivers and today's waiver of Federal 
preemption must be filed by September 7, 1999. Otherwise, at the end of 
this 30-day period, these findings will become final. Upon receipt of 
any timely objection, EPA will consider scheduling a public hearing to 
reconsider these findings in a subsequent Federal Register document.

ADDRESSES: Any objections to the within the scope findings described 
above should be filed with Mr. David J. Dickinson at the address noted 
below. 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, S.W., 
Washington, D.C. 20460. All documents submitted in the

[[Page 42690]]

evaporative emission standards and test procedures waiver request, as 
well as the within the scope waiver requests noted above, can be found 
in Docket A-95-39. Copies of the Decision Document (which discusses 
both the waiver and the within the scope determinations) can be 
obtained from EPA's Vehicle Programs and Compliance Division by 
contacting David J. Dickinson, as noted below, or can be accessed on 
the EPA Office of Mobile Sources Internet Home Page, also noted below.

FOR FURTHER INFORMATION CONTACT: David J. Dickinson, Manager, Vehicles 
Programs and Compliance Division (6405J), U.S. Environmental Protection 
Agency, 401 M Street S.W., Washington, D.C. 20460. Telephone: (202) 
564-9256, FAX: (202) 565-2057, E-Mail: Dickinson.David@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 official 
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. Enhanced Evaporative Emission Standards and Test Procedures for 
1996 to 1998 Model Year 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 a 
supplemental evaporative emission test procedure;(2) align California's 
evaporative emission enhanced test procedure (enhanced test procedure) 
with federal test procedures;(3) apply the enhanced test procedure to 
the complete heavy medium-duty vehicle class (8,501-14,000 lbs. gross 
weight vehicle rating (GVWR)), and (4) establish an amendment to the 
evaporative emission standard for the hot soak plus diurnal emissions 
test for medium-duty vehicles that have a GVWR of 6,001-8,500 lbs. and 
fuel tanks equal to or greater than 30 gallons from 2.0 to 2.5 grams 
per test. A comprehensive description of the California evaporative 
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.
    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 a party 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 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 a party 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 
October 4, 1999. 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 section 1(a) of Executive Order 12291, 46 FR 13193 (February 12, 
1981). Therefore, it is exempt from review by the Office of Management 
and Budget as required for rules and regulations by Executive Order 
12291. Nor is a Regulatory Impact Analysis being prepared under 
Executive Order 12291 for this determination, since it is not a rule.
    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.

III. 1995 Model Year Enhanced Evaporative Standards and Test 
Procedures Amendments Within the Scope Request

    I have determined that California's amendments to its 1995 model 
year enhanced evaporative standards and test procedures are within the 
scope of previous waivers of Federal preemption granted pursuant to 
section 209(b) of the Act. The substantive amendments to the enhanced 
evaporative standards and test procedures emission which are applicable 
under California state law to 1995 model year passenger cars, light 
duty trucks, medium-duty vehicles, and

[[Page 42691]]

heavy-duty vehicles creates the following:
    (1) A supplemental test procedure (similar to the federal 
supplemental test procedure) which consists of vehicle preconditioning 
(including canister loading), the federal test procedure (FTP) exhaust 
test, a hot soak, and a two-day diurnal test.
    (2) A change to the evaporative emission standards for the hot soak 
and the diurnal emissions test for medium-duty vehicles (6,001-8,5000 
lbs. GVWR) with fuel tanks greater than 30 gallons from 2.0 to 2,5 
grams.
    (3) An allowance for manufacturers to carry over 1995 model year 
enhanced certification data as long as the supplemental test data are 
provided and specified conditions are met.
    In an August 21, 1995 letter to EPA, CARB notified EPA of the 
above-described amendments to its evaporative emission regulations 
affecting 1995 model year vehicles, and requested that EPA confirm that 
these amendments are within the scope of existing waivers of Federal 
preemption.1 The Executive Officer stated that ``[t]he 
regulatory amendments approved herein will not cause California motor 
vehicle emissions standards, in the aggregate, to be less protective of 
public health and welfare as applicable Federal standards.'' 
2
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    \1\ Letter from James D. Boyd, Executive Officer, CARB, to Carol 
M. Browner, Administrator, EPA, dated August 21, 1995, at 2 
(hereinafter ``CARB letter'').
    \2\ CARB letter at 7.
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    In its August 1991 request, CARB explains why it limited its 
earlier request for a waiver of federal preemption to the 1995 model 
year. CARB desired to have a consistent set of evaporative emission 
test procedures for manufacturers and understood that EPA would be 
promulgating a supplemental test procedure that would be applicable to 
1996 model year and thereafter. Therefore, CARB received an earlier 
waiver from EPA for its 1995 model year evaporative emission standards 
and test procedures on September 13, 1994.3 By today's 
decision EPA is finding that CARB's amendments as they apply to the 
1995 model year do not undermine California's determination that its 
standards, in the aggregate, are as protective of public health and 
welfare as comparable Federal standards.
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    \3\ 59 FR 46978 (September 13, 1994).
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    As stated in CARB's letter, CARB's amendments do not affect the 
consistency of California's requirements with section 202(a) as they 
are merely meant to more closely align the California and federal 
requirements.4 EPA agrees with this representation. As noted 
above, EPA has previously granted a waiver of federal preemption for 
CARB's 1995 model year evaporative emission standards and test 
procedures, therefore, EPA now has determined that 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 Environmental Protection Agency's 
(EPA) previous waiver determination. Thus these amendments are within 
the scope of previous waivers determinations. 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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    \4\ CARB letter at 9.
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IV. 1998 Model Year Enhanced Evaporative Standards and Test 
Procedures for Ultra-Small Volume Manufacturers Within the Scope 
Request

    I have determined that California's amendments to its 1998 model 
year enhanced evaporative standards and test procedures applicable to 
ultra-small volume manufacturers (USVMs) are within the scope of 
today's waiver (for 1996 through 1998 model year evaporative emission 
standards and test procedures) of Federal preemption granted pursuant 
to section 209(b) of the Act. California had originally exempted USVMs 
from the phase-in requirements of the evaporative emission requirements 
and instead required USVMs to achieve 100 percent compliance in the 
1998 model year. California's amendments postpone the implementation of 
the 100 percent compliance of USVMs from 1998 to the 1999 model year.
    As discussed above, EPA may consider an amendment to be within the 
scope of a previously granted waiver if the amendment does not 
undermine California's determination that its standards, in the 
aggregate, are as protective of public health and welfare as comparable 
Federal standards, does not affect the consistency of California's 
requirements with section 202(a) of the Act, and does not raise new 
issues affecting EPA's previous waiver determination.
    On December 24, 1997, CARB requested that EPA find CARB's 
amendments to enhanced evaporative emission regulations applicable to 
USVMs to be within the scope of CARB's previously submitted waiver 
request of August 21, 1995 (this previous request is addressed by EPA 
in the full waiver of federal preemption noted above and also announced 
today). Because California's amendments for USVMs now more closely 
align with federal requirements (federal requirements for small volume 
manufacturers does not apply until the 1999 model year), and because of 
the small number of vehicles involved, EPA does not believe that CARB's 
protectiveness determination has been undermined. Additionally, the 
postponement of the requirement for USVMs does not pose any consistency 
issue with section 202(a) because lead time has now been extended for 
these manufacturers and CARB will allow such manufacturers to conduct 
their testing with federal fuel and test temperatures, thus eliminating 
and test procedure consistency concern. Thus, 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 EPA's previous waiver determination. 
A full explanation of EPA's decision is contained in a determination 
document which may be obtained from EPA as noted above.
    Because these amendments are within the scope of previous waivers, 
a public hearing to consider them is not necessary. However, if any 
party asserts an objection to these findings by September 7, 1999, EPA 
will consider holding a public hearing to provide interested parties an 
opportunity to present testimony and evidence to show that there are 
issues to be addressed through a section 209(b) waiver determination 
and that EPA should reconsider its findings. Otherwise, these findings 
shall become final on September 7, 1999.
    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 
October 4, 1999. Under section 307(b)(2) of the Act, judicial review of 
this final action may not be obtained in subsequent enforcement 
proceedings.
    This action is not a rule as defined by section 1(a) of Executive 
Order 12291, 46 FR 13193 (February 12, 1981).

[[Page 42692]]

Therefore, it is exempt from review by the Office of Management and 
Budget as required for rules and regulations by Executive Order 12291. 
Nor is a Regulatory Impact Analysis being prepared under Executive 
Order 12291 for this determination, since it is not a rule.
    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.

    Dated: July 28, 1999.
Robert Perciasepe,
Assistant Administrator for Air and Radiation.
[FR Doc. 99-20200 Filed 8-4-99; 8:45 am]
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