[Federal Register Volume 63, Number 72 (Wednesday, April 15, 1998)]
[Notices]
[Pages 18403-18406]
From the Federal Register Online via the Government Publishing 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:
[email protected]
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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