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###### Environmental Protection Agency

          - [AMS-FRL-7827-5] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Notice regarding waiver of federal preemption. 

# SUMMARY:

EPA today, pursuant to section 209(b) of the Clean Air Act (Act), 42 U.S.C. 7543(b), is granting California its request for a waiver of federal preemption for its regulations controlling emissions from off-cycle aggressive driving and air-conditioning usage for motor vehicles under 8,501 pounds gross vehicle weight rating. The California Air Resources Board (CARB) requested that EPA grant California a waiver of federal preemption for its regulations which incorporate EPA's two supplemental federal test procedures (SFTP) and associated certification standards. 

# 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 available at the EPA's Air and Radiation Docket at EPA's Docket Center. The Docket Center is open from 8:30 to 4:30 p.m. Monday through Friday, at EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The reference number for this docket is OAR-2003-0187. 

                        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 Web site 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 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. 

# FOR FURTHER INFORMATION CONTACT:

                        David J. Dickinson, Certification and Compliance Division, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: (202) 343-9256. E-Mail address:                         *Dickinson.David@EPA.GOV*.                     

# SUPPLEMENTARY INFORMATION:

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 regarding emissions from off-cycle aggressive driving (US06) and air-conditioning (SC03) as set forth at 13 California Code of Regulations 1960.1, 2062, and 2101 and the incorporated “California Exhaust Emission Standards and Test Procedures for 1988 and Subsequent Model Year Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles,” “California New vehicle Compliance Test Procedure,” and “California Assembly-Line Test Procedures for 1988 and Subsequent Model Year Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles.” 

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 its off-cycle aggressive driving and air-conditioning usage 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. EPA received no comments that questioned CARB's determination. EPA cannot make a finding that CARB's determination, that its requirements are, in the aggregate, at least as protective of public health and welfare, is arbitrary and 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 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. No information has been presented to demonstrate that CARB's requirements are inconsistent with section 202(a) of the Act, nor does EPA have any other reason to believe that CARB's requirements are inconsistent with section 202(a). Thus, I cannot find that California's requirements 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 Appeal for the District of Columbia Circuit. Petitions for review must be filed by December 13, 2004. 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                           ( print page 60996)                        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. 

Dated: September 30, 2004. 

Jeffrey R. Holmstead, 

Assistant Administrator, Office of Air and Radiation. 

[FR Doc. 04-23035 Filed 10-13-04; 8:45 am] 

BILLING CODE 6560-50-P