California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption for Amendments to California's Exhaust Emission Standards and Test Procedures for On-Road Motorcycles and Motorcycle Engines; Notice of Decision

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of Decision Regarding Waiver of Federal Preemption for California Motorcycle Emission Standards.

SUMMARY:

The California Air Resources Board (CARB) requested that the Environmental Protection Agency (EPA) confirm CARB's finding that amendments to its on-road motorcycle and motorcycle engines exhaust emission regulations, approved by CARB on October 22, 1999, are within the scope of previous Clean Air Act Section 209(b) waivers of federal preemption. Instead of confirming CARB's request that the amendments are within the scope of a previously granted waiver of federal preemption EPA is, by today's action, granting a full waiver of federal preemption.

ADDRESSES:

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 (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1743. The reference number for this docket is EPA-HQ-OAR-2004-0486. The location of the Docket Center is the Environmental Protection Agency, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, D.C. 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: (202) 343-9256, FAX: (202) 343-2804, e-mail: Dickinson.David@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 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: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2004-0486. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy at the Docket Center noted above.

II. Determination

I have determined that CARB's amendments to its on-highway motorcycle and motorcycle engine regulations constitute new standards and therefore require a new waiver of federal preemption rather than confirmation that the amendments 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. The amendments to the regulations, outlined in CARB's request letter , and fully described in CARB's submissions, provide for: (1) A combined level of hydrocarbon (HC) and oxides of nitrogen (NO_X) emissions as HC + NO_X for 2004 and subsequent model years (in comparison to the preexisting on-road Class III motorcycle HC-only standard); (2) two tiers of standard (Tier-1 and -2), with a Tier-1 standard of 1.4 g/km for HC + NO_X for model years 2004 through 2007 and a Tier-2 standard of 0.08 for HC + NO_X for model year 2008 and beyond; (3) retention of corporate averaging for Class III engine families but an addition of a not-to-exceed cap limit for each emission level from each engine family; and (4) a new definition of “small volume manufacturer” that applies in model year 2008 and beyond and clarification of the definition for “motorcycle engine.”

In a June 18, 2003 letter to EPA, CARB notified EPA of the above-described amendments to its motorcycle regulations and asked EPA to confirm that these amendments are within-the-scope of EPA's previous waivers. 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 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 authorization determinations.

Because EPA believed it possible that CARB's amendments do in fact raise “new issues” as they impose new more stringent standards, EPA offered the opportunity for a public hearing, and requested public comments, on these new standards, as the Act requires us to do, by publication of a Federal Register notice to such effect on November 21, 2005. There was no request for a public hearing, nor were any comments received on the CARB standards at issue. Therefore, EPA has made this determination based on the information submitted by CARB in its request.

EPA's analysis finds that the criteria for granting a full waiver have been met for these amendments. A full explanation of EPA's decision is contained in a Decision Document which may be obtained from EPA as noted above.

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 October 2, 2006. 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.

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.