[Federal Register Volume 81, Number 215 (Monday, November 7, 2016)]
[Notices]
[Pages 78149-78154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26865]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2014-0699; FRL-9954-95-OAR]
California State Motor Vehicle Pollution Control Standards;
Malfunction and Diagnostic System Requirements for 2010 and Subsequent
Model Year Heavy-Duty Engines; Notice of Decision
AGENCY: Environmental Protection Agency.
ACTION: Notice of decision.
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SUMMARY: The Environmental Protection Agency (EPA) is granting the
California Air Resources Board's (CARB's) request for a waiver of Clean
Air Act preemption for amendments made in 2013 (``2013 HD OBD
Amendments'') to its Malfunction and Diagnostic System Requirements for
2010 and Subsequent Model Year Heavy-Duty Engine (HD OBD Requirements)
and to its Enforcement of Malfunction and Diagnostic System
Requirements for 2010 and Subsequent Model-Year Heavy-Duty Engines
(``HD OBD Enforcement Regulation''), collectively referred to herein as
HD OBD Regulations. EPA also confirms that certain of the 2013 HD OBD
Amendments are within the scope of the previous waiver for the HD OBD
Requirements and HD OBD Enforcement Regulation. This decision is issued
under the authority of the Clean Air Act (``CAA'' or ``the Act'').
DATES: Petitions for review must be filed by January 6, 2017.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2014-0699. All documents relied upon in making this
decision, including those submitted to EPA by CARB, are contained in
the public docket. Publicly available docket materials are available
either electronically through www.regulations.gov or in hard copy at
the Air and Radiation Docket in the EPA Headquarters Library, EPA West
Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The
Public Reading Room is open to the public on all federal government
working days from 8:30 a.m. to 4:30 p.m.; generally, it is open Monday
through Friday, excluding holidays. The telephone number for the
Reading Room is (202) 566-1744. The Air and Radiation Docket and
Information Center's Web site is http://www.epa.gov/oar/docket.html.
The email address for the Air and Radiation Docket is: [email protected], the telephone number is (202) 566-1742, and the fax
number is (202) 566-9744. An electronic version of the public docket is
available through the federal government's electronic public docket and
comment system at http://www.regulations.gov. After opening the
www.regulations.gov Web site, enter EPA-HQ-OAR-2014-0699 in the ``Enter
Keyword or ID'' fill-in box to view documents in the record. 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.
EPA's Office of Transportation and Air Quality (``OTAQ'') maintains
a Web page that contains general information on its review of
California waiver and authorization requests. Included on that page are
links to prior waiver Federal Register notices, some of which are cited
in today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.
FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
1200 Pennsylvania Ave. NW. Telephone: (202) 343-9256. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
CARB initially adopted the HD OBD Requirements in December 2005.
The HD OBD Requirements require manufacturers to install compliant HD
OBD systems with diesel and gasoline powered engines used in vehicles
[[Page 78150]]
having a gross vehicle weight rating greater than 14,000 pounds. HD OBD
systems monitor emission-related components and systems for proper
operation and for deterioration or malfunctions that cause emissions to
exceed specific thresholds.
EPA issued a waiver under section 209(b) of the CAA for the 2005 HD
OBD Requirements in 2008.\1\ CARB subsequently updated the HD OBD
Requirements to align the HD OBD Requirements with OBD II Requirements
for medium-duty vehicles, and adopted the HD OBD Enforcement
Regulation, in 2010. EPA issued California a waiver for the 2010 HD OBD
Regulations in December 2012.\2\ CARB subsequently amended the HD OBD
Regulations again in 2013. CARB formally adopted the 2013 HD OBD
Amendments on June 26, 2013, and they became operative under state law
on July 31, 2013. The HD OBD Requirements are codified at title 13,
California Code of Regulations, section 1971.1. The HD OBD Enforcement
Regulation is codified at title 13, California Code of Regulations,
section 1971.5.
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\1\ 73 FR 52042 (September 8, 2008).
\2\ 77 FR 73459 (December 10, 2012).
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By letter dated February 12, 2014, \3\ CARB submitted to EPA a
request for a determination that the 2013 HD OBD Amendments are within
the scope of the previous HD OBD waiver or, alternatively, that EPA
grant California a waiver of preemption for the 2013 HD OBD Amendments.
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\3\ CARB, ``Request for Waiver Action Pursuant to Clean Air Act
Section 209(b) for California's Heavy-Duty Engine On-Board
Diagnostic System Requirements (HD OBD) and On-Board Diagnostic
System Requirements for Passenger Cars, Light-Duty Trucks, and
Medium-Duty Vehicles and Engines (OBD II),'' February 12, 2014
(``California Waiver Request Support Document'') See
www.regulations.gov Web site, docket number EPA-HQ-OAR-2014-0699-
0003.
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CARB's February 12, 2014 submission provides analysis and evidence
to support its finding that the 2013 HD OBD Amendments satisfy the CAA
section 209(b) criteria and that a waiver of preemption should be
granted. CARB briefly summarizes the 2013 HD OBD Amendments as
accomplishing the following primary purposes:
``accelerate the start date for OBD system implementation on
alternate-fueled engines from the 2020 model year to the 2018 model
year, relax some requirements for OBD systems on heavy-duty hybrid
vehicles for the 2013 through 2015 model years, relax malfunction
thresholds for three major emission control systems (particulate
matter (PM) filters, oxides of nitrogen (NOx) catalysts,
and NOx sensors) on diesel engines until the 2016 model
year, delay monitoring requirements for some diesel-related
components until 2015 to provide further lead time for emission
control strategies to stabilize, and clarify requirements for
several monitors and standardization.'' \4\
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\4\ California Waiver Request Support Document, at 11-12.
The 2013 HD OBD Amendments include several dozen amendments
overall.\5\
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\5\ The many 2013 HD OBD Amendments are individually summarized
by CARB in the California Waiver Request Support Document, from
pages 11-39.
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II. Principles Governing this Review
A. Scope of Review
Section 209(a) of the CAA provides:
``No State or any political subdivision thereof shall adopt or
attempt to enforce any standard relating to the control of emissions
from new motor vehicles or new motor vehicle engines subject to this
part. No State shall require certification, inspection or any other
approval relating to the control of emissions from any new motor
vehicle or new motor vehicle engine as condition precedent to the
initial retail sale, titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.'' \6\
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\6\ CAA section 209(a). 42 U.S.C. 7543(a).
Section 209(b)(1) of the Act requires the Administrator, after an
opportunity for public hearing, to waive application of the
prohibitions of section 209(a) for any state that has adopted standards
(other than crankcase emission standards) for the control of emissions
from new motor vehicles or new motor vehicle engines prior to March 30,
1966, if the state determines that its state standards will be, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards.\7\ However, no such waiver shall be
granted if the Administrator finds that: (A) The protectiveness
determination of the state is arbitrary and capricious; (B) the state
does not need such state standards to meet compelling and extraordinary
conditions; or (C) such state standards and accompanying enforcement
procedures are not consistent with section 202(a) of the Act.\8\
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\7\ CAA section 209(b)(1). 42 U.S.C. 7543(b)(1). California is
the only state that meets section 209(b)(1)'s requirement for
obtaining a waiver. See S. Rep. No. 90-403 at 632 (1967).
\8\ CAA section 209(b)(1). 42 U.S.C. 7543(b)(1).
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Key principles governing this review are that EPA should limit its
inquiry to the specific findings identified in section 209(b)(1) of the
Clean Air Act, and that EPA will give substantial deference to the
policy judgments California has made in adopting its regulations. In
previous waiver decisions, EPA has stated that Congress intended the
Agency's review of California's decision-making to be narrow. EPA has
rejected arguments that are not specified in the statute as grounds for
denying a waiver:
``The law makes it clear that the waiver requests cannot be
denied unless the specific findings designated in the statute can
properly be made. The issue of whether a proposed California
requirement is likely to result in only marginal improvement in
California air quality not commensurate with its costs or is
otherwise an arguably unwise exercise of regulatory power is not
legally pertinent to my decision under section 209, so long as the
California requirement is consistent with section 202(a) and is more
stringent than applicable Federal requirements in the sense that it
may result in some further reduction in air pollution in
California.'' \9\
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\9\ ``Waiver of Application of Clean Air Act to California State
Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more
stringent standard expressed here, in 1971, was superseded by the
1977 amendments to section 209, which established that California
must determine that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards.
This principle of narrow EPA review has been upheld by the U.S.
Court of Appeals for the District of Columbia Circuit.\10\ Thus, EPA's
consideration of all the evidence submitted concerning a waiver
decision is circumscribed by its relevance to those questions that may
be considered under section 209(b)(1).
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\10\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
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B. Burden and Standard of Proof
As the U.S. Court of Appeals for the D.C. Circuit has made clear in
MEMA I, opponents of a waiver request by California bear the burden of
showing that the statutory criteria for a denial of the request have
been met:
``[T]he language of the statute and its legislative history
indicate that California's regulations, and California's
determinations that they must comply with the statute, when
presented to the Administrator are presumed to satisfy the waiver
requirements and that the burden of proving otherwise is on whoever
attacks them. California must present its regulations and findings
at the hearing and thereafter the parties opposing the waiver
request bear the burden of persuading the Administrator that the
waiver request should be denied.'' \11\
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\11\ MEMA I, note 19, at 1121.
The Administrator's burden, on the other hand, is to make a
reasonable evaluation of the information in the record in coming to the
waiver decision. As the court in MEMA I stated: ``here, too, if the
Administrator ignores evidence demonstrating that the waiver should not
be granted, or if he seeks to overcome that evidence with unsupported
assumptions of his own, he runs the risk of having his waiver
[[Page 78151]]
decision set aside as `arbitrary and capricious.'' ' \12\ Therefore,
the Administrator's burden is to act ``reasonably.'' \13\
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\12\ Id. at 1126.
\13\ Id. at 1126.
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With regard to the standard of proof, the court in MEMA I explained
that the Administrator's role in a section 209 proceeding is to:
``[. . .]consider all evidence that passes the threshold test of
materiality and . . . thereafter assess such material evidence
against a standard of proof to determine whether the parties
favoring a denial of the waiver have shown that the factual
circumstances exist in which Congress intended a denial of the
waiver.'' \14\
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\14\ Id. at 1122.
In that decision, the court considered the standards of proof under
section 209 for the two findings related to granting a waiver for an
``accompanying enforcement procedure.'' Those findings involve: (1)
Whether the enforcement procedures impact California's prior
protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with section 202(a). The
principles set forth by the court are similarly applicable to an EPA
review of a request for a waiver of preemption for a standard. The
court instructed that ``the standard of proof must take account of the
nature of the risk of error involved in any given decision, and it
therefore varies with the finding involved. We need not decide how this
standard operates in every waiver decision.'' \15\
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\15\ Id.
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With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\16\ The court
noted that this standard of proof also accords with the congressional
intent to provide California with the broadest possible discretion in
setting regulations it finds protective of the public health and
welfare.\17\
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\16\ Id.
\17\ Id.
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With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all proceedings, but found
that the opponents of the waiver were unable to meet their burden of
proof even if the standard were a mere preponderance of the evidence.
Although MEMA I did not explicitly consider the standards of proof
under section 209 concerning a waiver request for ``standards,'' as
compared to a waiver request for accompanying enforcement procedures,
there is nothing in the opinion to suggest that the court's analysis
would not apply with equal force to such determinations. EPA's past
waiver decisions have consistently made clear that: ``[E]ven in the two
areas concededly reserved for Federal judgment by this legislation--the
existence of `compelling and extraordinary' conditions and whether the
standards are technologically feasible--Congress intended that the
standards of EPA review of the State decision to be a narrow one.''
\18\
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\18\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
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C. Deference to California
In previous waiver decisions, EPA has recognized that the intent of
Congress in creating a limited review based on specifically listed
criteria was to ensure that the federal government did not second-guess
state policy choices. As the Agency explained in one prior waiver
decision:
``It is worth noting . . . I would feel constrained to approve a
California approach to the problem which I might also feel unable to
adopt at the federal level in my own capacity as a regulator.. . .
Since a balancing of risks and costs against the potential benefits
from reduced emissions is a central policy decision for any
regulatory agency under the statutory scheme outlined above, I
believe I am required to give very substantial deference to
California's judgments on this score.'' \19\
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\19\ 40 FR 23102, 23103-04 (May 28, 1975).
Similarly, EPA has stated that the text, structure, and history of
the California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\20\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
CAA. Congress had the opportunity through the 1977 amendments to
restrict the preexisting waiver provision, but elected instead to
expand California's flexibility to adopt a complete program of motor
vehicle emission controls. The report explains that the amendment is
intended to ratify and strengthen the preexisting California waiver
provision and to affirm the underlying intent of that provision, that
is, to afford California the broadest possible discretion in selecting
the best means to protect the health of its citizens and the public
welfare.\21\
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\20\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13,
1993).
\21\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-02 (1977)).
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D. EPA's Administrative Process in Consideration of California's
Request
On November 20, 2014, EPA published a notice of opportunity for
public hearing and comment on California's waiver request. In that
notice, EPA requested comments on whether the 2013 HD OBD Amendments
should be considered under the within-the-scope analysis or whether
they should be considered under the full waiver criteria, and on
whether the 2013 HD OBD Amendments meet the criteria for a full
waiver.\22\ EPA additionally provided an opportunity for any individual
to request a public hearing.
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\22\ 79 FR 69104 (November 20, 2014).
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EPA received no comments and no requests for a public hearing.
Consequently, EPA did not hold a public hearing.
III. Discussion
A. Within-the-Scope Determination
CARB proposes that certain of the 2013 HD OBD Amendments meet all
three within-the-scope criteria, i.e. that the amendments: (1) Do not
undermine California's previous protectiveness determination that its
standards, in the aggregate, are at least as protective of public
health and welfare as comparable federal standards; (2) do not affect
the consistency of California's requirements with section 202(a) of the
Act, and (3) do not raise any new issue affecting the prior waiver.
CARB identifies the amendments it considers to be within the scope of
the prior waiver in Attachments 2, 3, and 4 of the California Waiver
Request Support Document.\23\ CARB does acknowledge that a number of
the 2013 HD OBD Amendments potentially establish new or more stringent
requirements, and thus will need a new waiver.\24\ These were
identified by CARB in Attachments 1 and 4 of its Waiver Request Support
Document.\25\ EPA must also assess
[[Page 78152]]
whether the HD OBD Amendments that have been identified by CARB as
requirements within the scope of the prior waiver can be confirmed by
EPA to not need a new waiver. If EPA determines that the amendments do
not meet the requirements for a within-the-scope confirmation, we will
then consider whether the amendments satisfy the criteria for full
waiver.
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\23\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at Attachment 2 (``2013 Amendments to HD OBD and
OBD II Requirements That Relax Existing Requirements''), at
Attachment 3 (``2013 Amendments to HD OBD and OBD II Requirements
That Clarify Existing Requirements''), and at Attachment 4 (the
portion identified as ``Amendments that Relax of Clarify Existing
Requirements'').
\24\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 42-43.
\25\ See Attachment 1 (``2013 Amendments to HD OBD and OBD II
Requirements That Potentially Establish New or More Stringent
Requirements'') of the California Waiver Request Support Document
[EPA-HQ-OAR-2014-0699-0003, at 72-73], and Attachment 4 (the portion
identified as ``Amendments that Establish New or More Stringent
Requirements'').
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As described previously, EPA specifically invited comment on
whether the 2013 HD OBD Amendments are within the scope of the prior
waiver. We received no comments disputing CARB's contentions on this
issue.
With regard to the first of the within-the-scope criteria, CARB
notes its finding in Resolution 12-29 that the 2013 HD OBD Amendments
do not undermine California's previous protectiveness determination
that its standards, in the aggregate, are at least as protective of
public health and welfare as comparable federal standards.\26\ CARB
maintains that its HD OBD Regulations are more stringent than
comparable federal regulations.\27\ As there are no comments and EPA is
not aware of evidence to the contrary, EPA finds that the 2013 HD OBD
Amendments do not undermine the previous protectiveness determination
made with regard to California's HD OBD Requirements and HD OBD
Enforcement Regulation.
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\26\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 43, 51, and Attachment 14 (CARB Resolution 12-
29, dated August 23, 2012).
\27\ Id.
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With regard to the second within-the-scope prong (affecting
consistency with section 202(a) of the Act), CARB argues that the 2013
HD OBD Amendments listed in Attachments 2, 3 and 4 as relaxing or
clarifying existing requirements do not affect the consistency of
California's requirements with section 202(a) of the Act. For these
amendments, CARB states that there is sufficient lead time to permit
the development of technology necessary to meet the standards, giving
appropriate consideration to the cost of compliance, since the
amendments merely relax or clarify existing standards, and that
manufacturers can still meet both the state and federal test
requirements with one test vehicle or engine.\28\ California contends
that the 2013 HD OBD Amendments (other than those specifically listed
in Attachments 1 and 4 as being otherwise) do not create new or more
stringent requirements.\29\ In addition, regarding the third within-
the-scope prong, CARB argues that the 2013 HD OBD Amendments (other
than those identified in Attachments 1 and 4 as establishing new or
more stringent standards) do not raise any new issue affecting the
prior waiver.\30\
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\28\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 45-46, 51-52.
\29\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 50-54.
\30\ Id.
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Despite CARB's contentions on the second and third within-the-scope
prongs, it was self-evident in EPA's review of the record that some of
the amendments identified by CARB as being within the scope of the
prior waiver instead require a new waiver because the amendments raise
new issues regarding the waiver and may affect the consistency of
California's requirements with section 202(a) of the Act. As stated in
the background section, while the burden of proof rests with opponents
of a waiver request (and there were none in this case), EPA retains the
burden ``to make a reasonable evaluation of the information in the
record'' before it. In evaluating the record, it is clear that some of
the 2013 HD OBD Amendments listed by CARB as clarifying or relaxing
existing requirements arguably provide new or more stringent
requirements that must be met by manufacturers. Specifically, in
addition to the amendments listed by CARB in Attachment 1 to its Waiver
Request Support Document, EPA notes that the following additional 2013
HD OBD Amendments also provide new or more stringent requirements and
thus require a new waiver:
[In the order presented in the Waiver Request Support Document,
Attachment 2]
Section 1971.1(d)(4.3.2)(E): Denominator Specifications [providing
new criteria to increment the denominator]
Section 1971.1(d)(4.3.2)(J): Denominator Specifications for Hybrid
Vehicles [providing new criteria to increment the denominator for
hybrid vehicles]
Section 1971.1(e)(8.2.4): NMHC Conversion Monitoring [requiring
monitoring of capability to generate desired feed gas]
Section 1971.1(e)(9.2.2)(A): NOx and PM Sensor
Malfunction Criteria [requiring fault before emissions are twice the
NMHC standard]
Section 1971.1(e)(9.3.1): NOx and PM Sensor Monitoring
Conditions [requiring track and report of ``monitoring capability''
monitors]
Section 1971.1(g)(3.2.2)(B)(ii)d: Diesel Idle Control System
Monitoring [requiring manufacturer to consider known, not given,
operating conditions]
[In the order presented in the Waiver Request Support Document,
Attachment 3]
Section 1971.1(c): ``Alternate-fueled engine'' [new scope of
exempted vehicles]
Section 1971.1(c): ``Ignition Cycle'' and ``Propulsion System
Active'' [new specific requirements for hybrid vehicles]
Section 1971.1(d)(2.3.1)(A) and (2.3.2)(A): MIL Extinguishing and
Fault Code Erasure Protocol [requiring MIL to be extinguished after
three driving cycles]
Section 1971.1(d)(2.3.1)(C)(ii)(b).3 and (2.3.2)(D)(ii)b.3: Erasing
a Permanent Fault Code [requiring erasure of fault code if not detected
again for 40 warm-up cycles]
Section 1971.1(d)(5.5.2)(B): Ignition Cycle Counter [requiring
counter to be incremented when hybrid vehicle propulsion system is
active for minimum time period]
Section 1971.1(f)(7.1): Evaporative System Monitoring [requiring
evaporative system monitoring for alternative-fueled engines]
Section 1971.1(h)(3.2): SAE J1939 Communication Protocol
[prohibiting use of 250 kbps baud rate version for 2016 model year]
Section 1971.1(h)(4.1): Readiness status [removing exceptions
allowing readiness status to say ``complete'' under certain conditions
without completion of monitoring]
Section 1971.1(h)(4.2.2) and (h)(4.2.3)(E): Data Stream [requiring
additional information in data stream]
Section 1971.1(h)(4.5.5): Test Results when Fault Memory Cleared
[requiring report of non-zero values corresponding to ``test not
complete'']
Section 1971.1(i)(3.1.2): Diesel Misfire Monitor [requiring
continuous misfire monitoring for diesel engines and demonstration
testing for the misfire monitor]
Section 1971.1(i)(3.2.1): Gasoline Fuel System [requiring
demonstration testing of air-fuel cylinder imbalance monitor]
[In the order presented in the Waiver Request Support Document,
Attachment 4]
Section 1971.5(d)(3)(A)(iii) [adding mandatory recall criteria for
diesel misfire monitors]
Section 1971.5(d)(3)(A)(vi) [adding mandatory recall criteria for
PM filter monitors]
The amendments listed above combined with those listed in
Attachment 1 to Waiver Request
[[Page 78153]]
Support Document will hereafter be referred to as 2013 HD OBD New or
Stricter Requirements. For the remaining 2013 HD OBD Amendments that
are not listed above (i.e., the ``Relaxed 2013 HD OBD Requirements''),
no evidence or comment was received indicating that the Relaxed 2013 HD
OBD Requirements are not within the scope of the prior waiver, nor was
there anything self-evident from the record indicating otherwise.
Therefore, EPA cannot find that the Relaxed 2013 HD OBD Requirements
either affect the consistency of California's requirements with section
202(a) of the Act or raise a new issue affecting the prior waiver.
California has thus met the within-the-scope criteria, and EPA confirms
that the Relaxed 2013 HD OBD Requirements are within the scope of the
previous waiver of the HD OBD Requirements and HD OBD Enforcement
Regulation.
B. New Waiver Determination
a. Whether California's Protectiveness Determination was Arbitrary and
Capricious
As stated in the background, section 209(b)(1)(A) of the Act sets
forth the first of the three criteria governing a new waiver request--
whether California was arbitrary and capricious in its determination
that its state standards will be, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards. Section 209(b)(1)(A) of the CAA requires EPA to deny a
waiver if the Administrator finds that California's protectiveness
determination was arbitrary and capricious. However, a finding that
California's determination was arbitrary and capricious must be based
upon clear and convincing evidence that California's finding was
unreasonable.\31\
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\31\ MEMA I, 627 F.2d at 1122, 1124 (``Once California has come
forward with a finding that the procedures it seeks to adopt will
not undermine the protectiveness of its standards, parties opposing
the waiver request must show that this finding is unreasonable.'');
see also 78 FR 2112, at 2121 (Jan. 9, 2013).
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CARB did make a protectiveness determination in adopting the 2013
HD OBD Amendments, and found that the 2013 HD OBD Amendments would not
cause California motor vehicle emissions standards, in the aggregate,
to be less protective of the public health and welfare than applicable
federal standards.\32\ EPA received no comments or EPA is not otherwise
aware of evidence suggesting that CARB's protectiveness determination
was unreasonable.
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\32\ California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 43, 51, and Attachment 14 (CARB Resolution 12-
29, dated August 23, 2012).
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As it is clear that California's standards are at least as
protective of public health and welfare as applicable federal
standards, and that the 2013 HD OBD New or Stricter Requirements make
California's standards even more protective, EPA finds that
California's protectiveness determination is not arbitrary and
capricious.
b. Whether the Standards Are Necessary To Meet Compelling and
Extraordinary Conditions
Section 209(b)(1)(B) instructs that EPA cannot grant a waiver if
the Agency finds that California ``does not need such State standards
to meet compelling and extraordinary conditions.'' EPA's inquiry under
this second criterion has traditionally been to determine whether
California needs its own motor vehicle emission control program (i.e.
set of standards) to meet compelling and extraordinary conditions, and
not whether the specific standards (the 2013 HD OBD New or Stricter
Requirements) that are the subject of the waiver request are necessary
to meet such conditions.\33\ In recent waiver actions, EPA again
examined the language of section 209(b)(1)(B) and reiterated this
longstanding traditional interpretation as the better approach for
analyzing the need for ``such State standards'' to meet ``compelling
and extraordinary conditions.'' \34\
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\33\ See California State Motor Vehicle Pollution Control
Standards; Notice of Decision Granting a Waiver of Clean Air Act
Preemption for California's 2009 and Subsequent Model Year
Greenhouse Gas Emission Standards for New Motor Vehicles,'' 74 FR
32744 (July 8, 2009), at 32761; see also ``California State Motor
Vehicle Pollution Control Standards; Waiver of Federal Preemption
Notice of Decision,'' 49 FR 18887 (May 3, 1984), at 18889-18890.
\34\ See 78 FR 2112, at 2125-26 (Jan. 9, 2013) (``EPA does not
look at whether the specific standards at issue are needed to meet
compelling and extraordinary conditions related to that air
pollutant.'' ; see also EPA's July 9, 2009 GHG Waiver Decision
wherein EPA rejected the suggested interpretation of section
209(b)(1)(B) as requiring a review of the specific need for
California's new motor vehicle greenhouse gas emission standards as
opposed to the traditional interpretation (need for the motor
vehicle emission program as a whole) applied to local or regional
air pollution problems.
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In conjunction with the 2013 HD OBD Amendments, CARB determined in
Resolution 12-29 that California continues to need its own motor
vehicle program to meet serious ongoing air pollution problems.\35\
CARB asserted that ``[t]he geographical and climatic conditions and the
tremendous growth in vehicle population and use that moved Congress to
authorize California to establish vehicle standards in 1967 still exist
today . . . and therefore there can be no doubt of the continuing
existence of compelling and extraordinary conditions justifying
California's need for its own motor vehicle emissions control
program.'' \36\
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\35\ California Waiver Request Support Document, at 44 and
Attachment 14 (Resolution 12-29, dated August 23, 2012).
\36\ California Waiver Request Support Document, at 45.
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There has been no evidence submitted to indicate that California's
compelling and extraordinary conditions do not continue to exist.
California, particularly in the South Coast and San Joaquin Valley air
basins, continues to experience some of the worst air quality in the
nation, and many areas in California continue to be in non-attainment
with national ambient air quality standards for fine particulate matter
and ozone.\37\ As California has previously stated, ``nothing in
[California's unique geographic and climatic] conditions has changed to
warrant a change in this determination.'' \38\
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\37\ 74 FR 32744, 32762-63 (July 8, 2009).
\38\ 74 FR 32744, 32762 (July 8, 2009); 76 FR 77515, 77518
(December 13, 2011).
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Based on the record before us, EPA is unable to identify any change
in circumstances or evidence to suggest that the conditions that
Congress identified as giving rise to serious air quality problems in
California no longer exist. Therefore, EPA cannot find that California
does not need its state standards to meet compelling and extraordinary
conditions in California.
c. Consistency With Section 202(a)
For the third and final criterion, EPA evaluates the program for
consistency with section 202(a) of the CAA. Under section 209(b)(1)(C)
of the CAA, EPA must deny California's waiver request if EPA finds that
California's standards and accompanying enforcement procedures are not
consistent with section 202(a). Section 202(a) requires that
regulations ``shall take effect after such period as the Administrator
finds necessary to permit the development and application of the
relevant technology, considering the cost of compliance within that
time.''
EPA has previously stated that the determination is limited to
whether those opposed to the waiver have met their burden of
establishing that California's standards are technologically
infeasible, or that California's test procedures impose requirements
inconsistent with the federal test procedure. Infeasibility would be
shown here by demonstrating
[[Page 78154]]
that there is inadequate lead time to permit the development of
technology necessary to meet the 2013 HD OBD New or Stricter
Requirements that are subject to the waiver request, giving appropriate
consideration to the cost of compliance within that time.\39\
California's accompanying enforcement procedures would also be
inconsistent with section 202(a) if the federal and California test
procedures conflicted, i.e., if manufacturers would be unable to meet
both the California and federal test requirements with the same test
vehicle.\40\
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\39\ See, e.g., 38 F.R 30136 (November 1, 1973) and 40 FR 30311
(July 18, 1975).
\40\ See, e.g., 43 FR 32182 (July 25, 1978).
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Regarding test procedure conflict, CARB notes that there is no
issue of test procedure inconsistency because federal regulations
provide that engines certified to California's HD OBD regulation are
deemed to comply with federal standards. EPA has received no adverse
comment or evidence of test procedure inconsistency. We therefore
cannot find that the 2013 HD OBD New or Stricter Requirements are
inconsistent with federal test procedures.
EPA also did not receive any comments arguing that the 2013 HD OBD
Amendments were technologically infeasible or that the cost of
compliance would be excessive, such that California's standards might
be inconsistent with section 202(a).\41\ In EPA's review of the 2013 HD
OBD New or Stricter Requirements, we likewise cannot identify any
requirements that appear technologically infeasible or excessively
expensive for manufacturers to implement within the timeframes
provided. EPA therefore cannot find that the 2013 HD OBD New or
Stricter Requirements do not provide adequate lead time or are
otherwise not technically feasible.
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\41\ See, e.g., 78 FR 2134 (Jan. 9, 2013), 47 FR 7306, 7309
(Feb. 18, 1982), 43 FR 25735 (Jun. 17, 1978), and 46 FR 26371, 26373
(May 12, 1981).
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We therefore cannot find that the 2013 HD OBD New or Stricter
Requirements that we analyzed under the waiver criteria are
inconsistent with section 202(a).
Having found that the 2013 HD OBD New or Stricter Requirements
satisfy each of the criteria for a waiver, and having received no
evidence to contradict this finding, we cannot deny a waiver for the
amendments.
IV. Decision
The Administrator has delegated the authority to grant California
section 209(b) waivers to the Assistant Administrator for Air and
Radiation. After evaluating CARB's 2013 HD OBD Amendments and CARB's
submissions for EPA review, EPA is hereby confirming that the 2013 HD
OBD Amendments, with the exception of the 2013 HD OBD New or Stricter
Requirements identified above, are within the scope of EPA's previous
waivers for the HD OBD Requirements and HD OBD Enforcement Regulation.
In addition, EPA is hereby granting a waiver for the 2013 HD OBD New or
Stricter Requirements.
This decision will affect persons in California and those
manufacturers and/or owners/operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(b) waiver has been
granted under section 177 of the Act if certain criteria are met, this
decision would also affect those states and those persons in such
states. For these reasons, EPA determines and finds that this is a
final action of national applicability, and also a final action of
nationwide scope or effect for purposes of section 307(b)(1) of the
Act. Pursuant to 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 January 6, 2017. Judicial review of this final action may not
be obtained in subsequent enforcement proceedings, pursuant to section
307(b)(2) of the Act.
V. Statutory and Executive Order Reviews
As with past waiver and authorization 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.
Further, 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).
Dated: October 24, 2016.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2016-26865 Filed 11-4-16; 8:45 am]
BILLING CODE 6560-50-P