

[Federal Register: August 3, 2006 (Volume 71, Number 149)]
[Notices]               
[Page 44027-44029]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au06-45]                         

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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-8205-4]

 
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.

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[[Page 44028]]

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.\1\ The amendments to the regulations, 
outlined in CARB's request letter \2\, and fully described in CARB's 
submissions, provide for: (1) A combined level of hydrocarbon (HC) and 
oxides of nitrogen (NOX) emissions as HC + NOX 
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 + 
NOX for model years 2004 through 2007 and a Tier-2 standard 
of 0.08 for HC + NOX 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.''
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    \1\ EPA previously granted CARB a waiver of federal preemption 
for California's exhaust emission standards and test procedures for 
1978 and subsequent model year motorcycles at 41 FR 44209 (October 
7, 1976) and 43 FR 998 (January 5, 1978). EPA also confirmed that a 
subsequent amendment to the HC exhaust standard for certain small 
volume manufacturers for the 1982 model year was within the scope of 
a previously granted waiver at 47 FR 23204 (May 27, 1982). Finally, 
EPA also confirmed that CARB's HC exhaust standards for 1984 and 
subsequent model year Class III motorcycles (280 cc and above) was 
within the scope of a previously granted waiver at 53 FR 6195 (March 
1, 1988). EPA also previously waiver federal preemption for 
California's evaporative emission standards and test procedures for 
motorcycles and confirmed subsequent amendments as within the scope 
of previously granted waivers at 47 FR 1015 (January 8, 1982); 47 FR 
23204 (May 27, 1982); 53 FR 6195 (March 1, 1988); and 53 FR 36116 
(September 16, 1988).
    \2\ Docket entry EPA-HQ-OAR 2004-0486-0002, letter to EPA, from 
CARB, dated June 18, 2003.
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    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.\3\
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    \3\ Decision Document accompanying scope of waiver determination 
in 51 FR 12391 (April 10, 1986).
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    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.\4\ There was no request for a public hearing, nor were any 
comments received on the CARB standards at issue. Therefore, EPA has 
made this

[[Page 44029]]

determination based on the information submitted by CARB in its 
request.
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    \4\ 70 FR 70073 (November 21, 2005).
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    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.

    Dated: July 27, 2006.
William L. Wehrum,
Acting Assistant Administrator, Office of Air and Radiation.
 [FR Doc. E6-12546 Filed 8-2-06; 8:45 am]

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