05-8529. California State Motor Vehicle Pollution Control Standards; Notice of Within-the-Scope Determination for Amendments to California's Low Emission Vehicle Standards (“LEV II”)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice regarding within-the-scope determination.

SUMMARY:

The California Air Resources Board (CARB) requested that EPA confirm CARB's finding that two sets of follow-up amendments to its LEV II regulations, which were approved by the CARB Board on November 15, 2001 and December 12, 2002, respectively, are within-the-scope of an existing EPA waiver of federal preemption. In a separate request, CARB requested EPA to grant a full waiver for a particular provision contained in one of these sets of LEV II amendments, and thus to not include that provision as part of the within-the-scope request. EPA in this notice has made the requested confirmation that the amendments in CARB's within-the-scope request are within-the-scope of the existing waiver. EPA will in a subsequent Federal Register notice consider the request for a full waiver for the separate provision.

DATES:

Any objections to the findings in this notice regarding EPA's determination that California's amendments are within-the-scope of a previous waiver must be filed by May 31, 2005. 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 notice.

ADDRESSES:

Any objections to the within-the-scope findings in this notice should be filed with David Dickinson at the address noted below. 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 contained in the public docket. The official public docket is the collection of materials that is available for public viewing. The EPA Docket Center Public Reading Room is open from 8:30 to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Air and Radiation Docket is [phone]. The reference number for this docket is OAR-2004-0057. The location of the Docket Center is the Environmental Protection Agency, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. Copies of the Decision Document for this determination can also be obtained by contacting David Dickinson as noted below, or can be accessed on the EPA's Office of Transportation and Air Quality Web site, also noted below.

FOR FURTHER INFORMATION CONTACT:

David Dickinson, Attorney-Advisor, Certification and Compliance Division, (6405J), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Telephone: [phone], Fax: [phone], E-Mail: [e-mail].

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 Transportation and Air Quality (OTAQ) Web site (http://www.epa.gov/​OTAQ). Users can find these documents by accessing the OTAQ Home Page and looking at the path entitled “Chronological List of All OTAQ 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.

Docket: 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 the 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 edocket system, select “search,” then key in the appropriate docket ID number. ^[1]

II. Second Set of LEV II Amendments

I have determined that these amendments to the CARB's LEV II regulation are within-the-scope of a prior waiver issued under section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b), granted by EPA to CARB.^[2] The amendments to the regulations, outlined in CARB's request letter ^[3] , and fully described in CARB's submissions, provide for: (1) An NMOG certification factor to account for carbonyls and a statement of compliance for meeting the formaldehyde standards in lieu of full testing; (2) an extension of the generic reactivity adjustment factors (RAFs); (3) revisions to the emission offset requirements for “AB 965” vehicles which allow new vehicles certified to EPA emission levels (as opposed to CARB's standards) to be averaged into a manufacturer's fleet mix in California; (4) additional intermediate in-use compliance standards for light-duty trucks engineered for heavier duty cycles that have a base payload capacity of 2,500 lbs. or higher, or for vehicles certified to CARB's optional 150,000 mile standards; (5) revisions to California's NMOG test procedures; and (6) revisions to the fleet average NMOG requirements for independent low volume manufacturers.

In an April 12, 2004 letter to EPA, CARB notified EPA of the above-described amendments to its LEV II regulations and asked EPA to confirm that these amendments are within-the-scope of EPA's previous waiver for the LEV II regulation. EPA can make such a confirmation if certain conditions are present. Specifically, if California acts to amend a previously waived standard or accompanying enforcement procedure, the amendment may be considered within-the-scope of a previously granted waiver provided that it does not undermine California's determination that its standards in the aggregate are as protective of public health and welfare as applicable Federal standards, does not affect the consistency with section 202(a) of the Act, and raises no new issues affecting EPA's previous authorization determination.^[4]

In its request letter, CARB stated that the amendments will not cause the California standards, in the aggregate, to be less protective of public health and welfare than the applicable Federal standards. Regarding consistency with section 202(a), CARB stated that the amendments do not raise any concerns of inadequate leadtime or technological feasibility or impose any inconsistent certification requirements (compared to the Federal requirements). Finally, CARB stated that the amendments raise no new issues affecting the prior EPA authorization determinations.

EPA's analysis confirms CARB's finding that the criteria for these amendments meeting a within-the-scope designation have been met. Thus, EPA finds that these amendments are within-the-scope of a previous waiver. A full explanation of EPA's decision is contained in a Decision Document which may be obtained from EPA as noted above.

III. Third Set of LEV II Amendments

I have determined that the third set of amendments to the CARB's LEV II regulation are within-the-scope of a prior waiver issued under section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b), granted by EPA to CARB.^[5] The amendments to the regulations, outlined in CARB's request letter ^[6] , and fully described in CARB's submissions, provide for: (1) A change in the allowed maintenance schedule for test vehicles to account for new full useful life periods; (2) revisions to the California Label Specifications; (3) revisions to the test cycle for direct ozone reduction technologies; (4) extending the high mileage testing requirement for vehicles certifying to the 150,000-mile emission standards; (5) corrections to the number of “significant figures” to be included in measuring the 50° F standards; (6) clarification of onboard refueling vapor recovery (ORVR) requirements for gaseous fueled vehicles; and (7) various minor changes to the LEV II regulatory language which have no new substantive effect.

In an April 12, 2004 letter to EPA, CARB notified EPA of the above-described amendments to its LEV II regulations and asked EPA to confirm that these amendments are within-the-scope of a previous waiver.

In its request letter, CARB stated that the amendments will not cause the California standards, in the aggregate, to be less protective of public health and welfare than the applicable Federal standards. Regarding consistency with section 202(a), CARB stated that the amendments do not raise any concerns of inadequate leadtime or technological feasibility or impose any inconsistent certification requirements (compared to the Federal requirements). Finally, CARB stated that the amendments raise no new issues affecting the prior EPA waiver determination.

EPA's analysis confirms CARB's finding that the criteria for these amendments meeting a within-the-scope designation have been met. Thus, EPA finds that these amendments are within-the-scope of previous authorizations. A full explanation of EPA's decision is contained in a Decision Document which may be obtained from EPA as noted above.

Because these amendments are within the scope of a previous waiver, a public hearing to consider them is not necessary. However, if any party asserts an objection to these findings by May 31, 2005, 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 proceeding and that EPA should reconsider its findings. Otherwise, these findings will become final on May 31, 2005.

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 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 27, 2005. Under section 307(b)(2) of the Act, judicial review of this final action may not be obtained in subsequent enforcement proceedings.

EPA's determination that these California regulations are within-the-scope of a prior waiver determination by EPA does not constitute a significant regulatory action under the terms of Executive Order 12866 and this action is therefore not subject to Office of Management and Budget review.

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.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule, for purposes of 5 U.S.C. 804(3).

Finally, the Administrator has delegated the authority to make determinations regarding waivers under section 209(b) of the Act to the Assistant Administrator for Air and Radiation.

Dated: April 21, 2005.

Jeffrey R. Holmstead,

Assistant Administrator, Office of Air and Radiation.

Footnotes

1.  CARB's “first” set of LEV II follow-up amendments, which included the “cleaner federal vehicle” provisions, were adopted by the CARB Board on December 27, 2000, and were covered by EPA's LEV II waiver published April 22, 2003. The “second” set of follow-up amendments included an amendment to section 1962, title 13, CCR, the section regarding zero-emission vehicles (ZEVs). The LEV II waiver previously issued by EPA does not include this provision and by today's decision EPA is also not considering the ZEV provisions. The second set of amendments also include a provision in a table at section 1961(a)(1), title 13, CCR, which has the effect of making the particulate standard applicable to all motor vehicles regardless of fuel (the previous regulation only applied to diesel-fueled vehicles). Per CARB's request of December 20, 2004 (see OAR-2004-0057-0031) EPA is not considering this provision as part of today's decision.

2.  EPA previously granted CARB a waiver of federal preemption for the LEV II standards. (68 FR 19811 (April 22, 2003)).

3.  Docket entry OAR 2004-0057-0002, letter to EPA, from CARB, dated April 12, 2004.

4.  Decision Document accompanying scope of waiver determination in 51 FR 12391 (April 10, 1986).

5.  EPA previously granted CARB a waiver of federal preemption for the LEV II standards. (68 FR 19811 (April 22, 2003)).

6.  Docket entry OAR-2004-0057-0001, letter to EPA, from CARB, dated April 12, 2004.