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###### Environmental Protection Agency

          - [AMS-FRL-7824-6] 

# AGENCY:

Environmental Protection Agency. 

# ACTION:

Notice Regarding Within-the-Scope Determinations. 

# SUMMARY:

                        The California Air Resources Board (CARB) requested that EPA confirm CARB's finding that amendments to its heavy-duty diesel powered vehicles and engines regulations, including its 1998 NOX                         standards, are within-the-scope of a prior waiver of Federal preemption issued under section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b). In a separate request CARB sought EPA confirmation that CARB's finding that amendments to its heavy-duty diesel powered vehicle and engine regulations, including its 1995 urban bus standards, are within-the-scope of a prior waiver of Federal preemption. EPA in this notice has made the requested confirmation for the amendments in CARB's requests.                     

# 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                               ( print page 59921)                            viewing. The EPA Docket Center Public Reading Room is open from 8:30 a.m. 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 numbers for these dockets are A-2000-45 and A-2002-16. 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: (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. 

##                     II. 1998 NOX                     Regulations                 

                    I have determined that amendments to the CARB's heavy-duty diesel powered vehicles and engines regulation are within-the-scope of a prior waivers issued under section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b), granted by EPA to CARB.[1]                                          The amendments to the regulations, outlined in CARB's request letter [2]                                         , and fully described in CARB's submissions, provide for: (1) A mandatory 4.0 g/bhp-hr NOX                     standard for heavy-duty engines and vehicles for the 1998 and subsequent model years which parallels EPA's adoption of this standard; (2) optional, lower NOX                     emission standards beginning with the 1995 model year; (3) changing the “useful life” definition for heavy-duty engines and vehicles under Title 13, California Code of Regulations, section 2112, by extending the period of “useful life” from eight to ten years while maintaining the applicable, alternative mileage provisions that range from 110,000 to 290,000 miles (whichever occurs first); and (4) implementing new requirements for the California Motor Vehicle Emission Control Label Specifications in order to identify those engines which are certified to the optional, lower emission standards.                 

                    In a February 27, 1997, letter to EPA, CARB notified EPA of the above-described amendments to its heavy-duty vehicle and engine regulations and asked EPA to confirm that these amendments are within-the-scope of 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 amendments 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.[3] 

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 received no comments in opposition to CARB's findings and thus there is nothing in the record to support a denial of CARB's request. In addition, 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. 

## III. CARB's 1995 Urban Bus Standards 

                    I have determined that amendments to the CARB's heavy-duty diesel powered vehicles and engines regulation are within-the-scope of prior waivers issued under section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b), granted by EPA to CARB.[4]                                          The amendments to the regulations, outlined in CARB's request letter [5]                                         , and fully described in CARB's submissions, provide for: (1) An alignment of California's particulate matter (PM) standards with Federal standards for such engines in the 1994 and 1995 model years and with the Federal PM standards starting in the 1996 model year; (2) a NOX                     standard starting in the 1996 model year for urban buses; (3) an adoption of the Federal urban bus definition; (4) an exemption from the 4.0 g/bhp-hr NOX                     standard for up to 10 percent of urban bus sales for model years 1996 and 1997; (5) an allowance to use California diesel fuel for certifying 1996 and 1997 model year urban buses and in 1998 and thereafter the applicable Federal test fuel; (6) an optional, lower NOX                     emission standard beginning with the 1994 model year; (7) changing the useful life definition for 1994 and later urban buses; and (8) new requirements for Label Specifications                 

In a December 26, 1995 letter to EPA, CARB notified EPA of the above-described amendments to its heavy-duty vehicle and engine regulations and asked EPA to confirm that these amendments are within the scope of previous waivers. 

                    In its request letter, CARB stated that the amendments will not cause the California standards, in the aggregate, to                           ( print page 59922)                        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 received no comments in opposition to CARB's findings and thus there is nothing in the record to support a denial of CARB's request. In addition, 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. 

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 heavy-duty diesel powered engines and 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 December 6, 2004. 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 prior authorizations 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 authorizations under section 209(b) of the Act to the Assistant Administrator for Air and Radiation. 

Dated: September 28, 2004. 

Jeffrey R. Holmstead, 

Assistant Administrator, Office of Air and Radiation. 

# Footnotes

1.                             CARB generally aligned the California heavy-duty engine emission standards with the comparable Federal standards and procedures. EPA granted waivers for the aligned gasoline engine standards (53 FR 7022 (March 4, 1988)) and diesel engine standards (53 FR 7021 (March 4, 1988) and 52 FR 20777 (June 3, 1987)).                    
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2.                             Docket entry A-2000-45, II-B-1, letter to EPA, from CARB, dated February 27, 1997.                    
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3.                             Decision Document accompanying scope of waiver determination in 51 FR 12391 (April 10, 1986).                    
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4.                             CARB generally aligned the California heavy-duty engine and vehicle emission standards with the comparable Federal standards and procedures. EPA granted waivers for the aligned gasoline engine standards (53 FR 7022 (March 4, 1988) and diesel engine standards (53 FR 7021 (March 4, 1988) and 52 FR 20777 (June 3, 1987)).                    
        Back to Citation      

5.                             Docket entry A-2002-16, II-A-1, letter to EPA, from CARB, dated December 26, 1995.                    
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[FR Doc. 04-22488 Filed 10-5-04; 8:45 am] 

BILLING CODE 6560-50-P