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

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.

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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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