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###### Environmental Protection Agency

          - [AMS-FRL-7961-1] 

# 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 heavy-duty diesel regulations for 2007 and subsequent model year vehicles and engines (2007 California Heavy Duty Diesel Engine Standards) and related test procedures including the not-to-exceed (NTE) and supplemental steady-state tests (supplemental test procedures) to determine compliance with applicable standards. By letter dated July 16, 2004, the California Air Resources Board (CARB) requested that EPA grant California a waiver of federal preemption for its 2007 California Heavy Duty Diesel Engine Standards, which primarily align California's standards and test procedures with the federal standards and test procedures for 2007 and subsequent model year vehicles and engines. 

# 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 and Information Center (Air Docket). Materials relevant to this decision are contained in Docket No. OAR-2004-0132. The docket is located                               ( print page 50323)                            at The Air Docket, room B-108, 1301 Constitution Avenue, NW., Washington, DC 20460, and may be viewed between 8 a.m. and 5:30 p.m., Monday through Friday. The telephone number is (202) 566-1742. A reasonable fee may be charged by EPA for copying docket material. Additionally, 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 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 electronic docket system, select “search,” then key in the appropriate docket ID number for Docket OAR-2004-0132.                     

                        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, “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, Ariel Rios Building (6405J), 1200 Pennsylvania Avenue, 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 the 2007 California Heavy Duty Diesel Engine Standards.[1] 

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. 

As further explained in the Decision Document supporting today's decision, EPA received a series of comments supporting CARB's request for a waiver of federal preemption. EPA did not receive any comment suggesting that CARB's request should be denied or a decision delayed based on the criteria set forth in section 209(b) of the Act. EPA did receive comment that the waiver of federal preemption should otherwise be delayed, but for the reasons set forth below and further discussed in the Decision Document, EPA is granting CARB's request for a waiver of federal preemption. 

CARB determined that its 2007 California Heavy Duty Diesel Engine Standards do not cause California's standards, in the aggregate, to be less protective of public health and welfare than the applicable Federal standards. No information has been submitted to demonstrate that California's standards, in the aggregate, are less protective of public health and welfare than the applicable Federal standards. Thus, EPA cannot make a finding that CARB's determination, that its 2007 California Heavy Duty Diesel Engine Standards 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 2007 California Heavy Duty Diesel Engine Standards. 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 2007 California Heavy Duty Diesel Engine Standards 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 2007 California Heavy Duty Diesel Engine Standards are inconsistent with section 202(a) of the Act. Accordingly, I hereby grant the waiver requested by California. 

This 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 October 25, 2005. 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. 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. 

      ( print page 50324)    
Dated: August 19, 2005. 

Jeffrey R. Holmstead, 

Assistant Administrator for Air and Radiation. 

# Footnotes

1.                             The CARB Board approved the 2007 Heavy Duty Diesel Engine Standards by Resolution 01-38 on October 25, 2001 (See Attachment 1 to CARB's July 16, 2004 Waiver Request Letter). The regulations covered by today's waiver include CARB's amendments to title 13, California Code of Regulations (CCR), section 1956.8. The specific regulatory text and the incorporated document covered by the 2007 Heavy Duty Diesel Engine Standards regulation are: section 1956.8, title 13, CCR, as shown in Attachment 2 to CARB's Waiver Request Letter, and amendments to the related test procedures incorporated in section 1956.8(b), “California Exhaust Emission Standards and Test Procedures for 1985 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles,” also shown in Attachment 2. For further discussion of the regulations covered by today's decision please see the Decision Document.                    
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[FR Doc. 05-17037 Filed 8-25-05; 8:45 am] 

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