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California State Motor Vehicle Pollution Control Standards; Amendments to On-Highway Heavy-Duty Vehicle In-Use Compliance Program, Amendments to 2007 and Subsequent Model Year On-Highway Heavy-Duty Engines and Vehicles, and Amendments to Truck Requirements; Notice of Decision

American Government Special Collections Reference Desk

American Government

California State Motor Vehicle Pollution Control Standards; Amendments to On-Highway Heavy-Duty Vehicle In-Use Compliance Program, Amendments to 2007 and Subsequent Model Year On-Highway Heavy-Duty Engines and Vehicles, and Amendments to Truck Requirements; Notice of Decision

Gina McCarthy
Environmental Protection Agency
17 January 2017


[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Notices]
[Pages 4867-4873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00940]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2016-0017; FRL9958-38-OAR]


California State Motor Vehicle Pollution Control Standards; 
Amendments to On-Highway Heavy-Duty Vehicle In-Use Compliance Program, 
Amendments to 2007 and Subsequent Model Year On-Highway Heavy-Duty 
Engines and Vehicles, and Amendments to Truck Requirements; Notice of 
Decision

AGENCY: Environmental Protection Agency.

ACTION: Notice of decision.

-----------------------------------------------------------------------

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 its On-Highway Heavy-Duty Vehicle In-Use 
Compliance program (``In-Use Regulation''). EPA is also confirming that 
CARB's amendments to its 2007 and Subsequent Model Year On-Highway 
Heavy-Duty Engines and Vehicles regulation (``2007 Amendments'') and 
CARB's amendments to its Truck Idling requirements (``Truck Idling 
Amendments'') are within the scope of previous waivers issued by EPA. 
The In-Use Regulation establishes a manufacturer-run in-use compliance 
program using portable emission measurement systems (``PEMS''). The 
2007 Amendments specify the NOX emission standard for heavy- 
and medium-duty diesel engines to two significant figures and provide 
manufacturers the option to certify chassis-certified diesel vehicles 
within the phase-in compliance provisions of the 2007 and Subsequent 
Model Year On-Highway Heavy-Duty Engines and Vehicles regulation. The 
Truck Idling Amendments exempt armored cars and workover rigs (a mobile 
self-propelled rig used to perform remedial operations on producing oil 
or gas wells to restore or increase well production) from the new 
engine requirements of the preexisting California Truck Idling 
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 March 20, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2016-0017. 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: a-and-r-docket@epa.gov, 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://

[[Page 4868]]

www.regulations.gov. After opening the www.regulations.gov Web site, 
enter EPA-HQ-OAR-2016-0017 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: 
dickinson.david@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On August 19, 2005, EPA granted California a waiver of preemption 
pursuant to section 209(b) of the CAA, 42 U.S.C. 7543(b), for CARB's 
amendments to its heavy-duty diesel engine standards for 2007 and 
subsequent model year (MY) vehicles and engines and related test 
procedures, including not-to-exceed (``NTE'') and supplemental steady-
state tests to determine compliance with applicable standards (``2007 
California HDDE standards'').\1\ Those standards apply to all heavy-
duty diesel engines, and align California's standards and test 
procedures with corresponding federal standards and test procedures. In 
2010 EPA granted California a waiver of preemption for CARB's adoption 
of amendments applicable to 2008 and subsequent MY heavy-duty Otto-
cycle engines.\2\ In 2005, CARB adopted truck idling requirements, 
including an element whereby new California-certified 2008 and 
subsequent MY on-road diesel engines in trucks with a gross vehicle 
weight rating (``GVWR'') greater than 14,000 pounds were required to be 
equipped with a system that automatically shuts down the engine after 
five minutes of continuous idling (``Truck Idling regulation''). In 
lieu of the automatic engine shutdown systems, manufacturers are 
allowed to optionally certify engines to a NOX idling 
emission standard. EPA granted a waiver for the Truck Idling regulation 
in 2012.\3\
---------------------------------------------------------------------------

    \1\ 70 FR 50322 (August 26, 2005).
    \2\ 75 FR 70237 (November 17, 2010).
    \3\ 77 FR 9239 (February 16, 2012).
---------------------------------------------------------------------------

    CARB's In-Use Regulation establishes a manufacturer-run in-use 
compliance program that is largely identical to EPA's previously 
adopted heavy-duty in-use testing program (``HDIUT program'') 
originally adopted in 2005.\4\ The regulation applies to 2007 and 
subsequent MY engine-dynamometer certified heavy-duty diesel engines 
installed in a motor vehicle with GVWR greater than 8,500 pounds. 
CARB's initial In-Use Regulation, adopted in 2006, included 
requirements for manufacturers screening test vehicles with portable 
emission measurement systems (PEMS) and testing the vehicles by 
operating them over typical driving routes, and under the same vehicle 
loads and environmental conditions that the vehicles routinely 
encounter. The in-use compliance program is comprised of two phases. 
The first phase, Phase 1, involves testing a designated engine family 
for conformity with the applicable NTE requirements. In the second 
phase, if the engine family does not pass the Phase 1 requirements then 
testing, under more narrowly defined test conditions, may be required 
to target specific noncomplying operating conditions. The initial 
regulation incorporated temporary measurement allowances when testing 
for compliance using PEMS. In 2007, CARB amended the In-Use Regulation 
to set forth new measurement allowances for gaseous emissions.\5\ In 
2011, CARB approved additional amendments to the In-Use Requirements to 
establish a new particulate matter (``PM'') measurement allowance. EPA 
similarly amended its federal HDIUT program in 2010 to incorporate this 
same measurement allowance.\6\
---------------------------------------------------------------------------

    \4\ 70 FR 34594 (June 14, 2005).
    \5\ See the California Air Resources Board's Waiver Request 
Support Document (``Waiver Support Document''), dated December 31, 
2015 at EPA-HQ-OAR-2016-0017-0018, at 7-8.
    \6\ Waiver Support Document at 9, citing 75 FR 68448 (November 
8, 2010).
---------------------------------------------------------------------------

    CARB initially adopted the 2007 California HDDE standards in 2001 
to fully align California's NOX emission standards for 2007 
and subsequent MY HDDEs and medium-duty diesel engines (``MDDEs'') 
certified to ultra-low-emission vehicle (``ULEV'') standards to the 
corresponding federal NOX emission standard of 0.20 gram per 
brake-horsepower hour (g/bhp-hr) (two significant figures). CARB also 
established a more stringent NOX standard for MDDEs 
certified to optional ultra-low-emission vehicle (``SULEV'') emission 
standards of 0.10 g/bhp-hr). CARB's 2007 Amendments clarify that the 
NOX ULEV emission standard for HDDEs is the same as the 
federal NOX emission standard of 0.20 g/bhp-hr and amended 
the NOX SULEV standard to 0.10 g/bhp-hr (CARB had 
inadvertently specified these NOX emission standards to only 
one significant figure (0.2 and 0.1 g/bhp-hr r, respectively)). CARB 
had also inadvertently failed to include a provision that provided 
manufacturers the option to include chassis-certified 2007 through 2009 
MY heavy-duty diesel vehicles under 14,000 pounds GVWR within the 
phase-in compliance provision of the 2007 HDDE standards. The 2007 
Amendments incorporate this optional provision. In addition, the 2007 
Amendments incorporate the flexibility provided by EPA in 2006, whereby 
manufacturers may apply multiplicative deterioration factors if, based 
on good engineering judgment, multiplicative deterioration factors are 
more appropriate for a particular engine family (as opposed to an 
adjustment by the addition of appropriate deterioration factors).\7\
---------------------------------------------------------------------------

    \7\ Id. at 11, citing 71 FR 51481 (August 30, 2006).
---------------------------------------------------------------------------

    In 2008 CARB adopted amendments to the new engine requirements 
within the Truck Idling regulation to address specific issues regarding 
armored cars and workover rigs. Specifically, the Truck Idling 
Amendments provide that new 2008 and subsequent MY heavy-duty diesel 
engines used in armored cars and workover rigs are exempt from the new 
engine idling requirements. In addition, in 2011 CARB provided 
additional regulatory clarification of the exemption.\8\
---------------------------------------------------------------------------

    \8\ Id.
---------------------------------------------------------------------------

    By letter dated January 27, 2016, CARB submitted to EPA a request 
for a waiver of the preemption found at section 209(a) of Clean Air 
Act, 42 U.S.C. 7543(a), for the In-Use Regulation. CARB's submission 
provided analysis and evidence to support its finding that the In-Use 
Regulation satisfies the CAA section 209(b) criteria and that a waiver 
of preemption should be granted. CARB's request also sought 
confirmation that its 2007 Amendments and the Truck Idling Amendments 
are within the scope of waivers of preemption previously granted by 
EPA.\9\
---------------------------------------------------------------------------

    \9\ Id.
---------------------------------------------------------------------------

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

[[Page 4869]]

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.\10\
---------------------------------------------------------------------------

    \10\ CAA Sec.  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.\11\ 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.\12\
---------------------------------------------------------------------------

    \11\ CAA Sec.  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).
    \12\ CAA Sec.  209(b)(1). 42 U.S.C. 7543(b)(1).
---------------------------------------------------------------------------

    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.\13\
---------------------------------------------------------------------------

    \13\ ``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.\14\ ``[T]he 
statute does not provide for any probing substantive review of the 
California standards by federal officials.'' Ford Motor Co. v. EPA, 606 
F.2d 1293, 1300 (D.C. Cir. 1979). 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).
---------------------------------------------------------------------------

    \14\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 
1095 (D.C. Cir. 1979) (``MEMA I'').
---------------------------------------------------------------------------

B. Within-the-Scope Determinations

    If California amends regulations that have been previously 
authorized by EPA, California may ask EPA to determine that the 
amendments are within the scope of the earlier authorization. A within-
the-scope determination for such amendments is permissible without a 
full authorization review if three conditions are met. First, the 
amended regulations must not undermine California's previous 
determination that its standards, in the aggregate, are as protective 
of public health and welfare as applicable federal standards. Second, 
the amended regulations must not affect consistency with section 209 of 
the Act, following the same criteria discussed above in the context of 
full authorizations. Third, the amended regulations must not raise any 
new issues affecting EPA's prior waiver or authorization decisions.\15\
---------------------------------------------------------------------------

    \15\ See ``California State Motor Vehicle Pollution Control 
Standards; Amendments Within the Scope of Previous Waiver of Federal 
Preemption,'' 46 FR 36742 (July 15, 1981).
---------------------------------------------------------------------------

C. 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.\16\
---------------------------------------------------------------------------

    \16\ 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 decision 
set aside as `arbitrary and capricious.' '' \17\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \18\
---------------------------------------------------------------------------

    \17\ Id. at 1126.
    \18\ Id. at 1126.
---------------------------------------------------------------------------

    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.\19\
---------------------------------------------------------------------------

    \19\ 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.'' \20\
---------------------------------------------------------------------------

    \20\ Id.
---------------------------------------------------------------------------

    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.\21\ The court 
noted that this standard of proof also accords with the congressional 
intent to provide California with the broadest

[[Page 4870]]

possible discretion in setting regulations it finds protective of the 
public health and welfare.\22\
---------------------------------------------------------------------------

    \21\ Id.
    \22\ Id.
---------------------------------------------------------------------------

    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.'' 
\23\
---------------------------------------------------------------------------

    \23\ See, e.g., ``California State Motor Vehicle Pollution 
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 
28, 1975), at 23103.
---------------------------------------------------------------------------

D. 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.\24\
---------------------------------------------------------------------------

    \24\ 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.\25\ 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.\26\
---------------------------------------------------------------------------

    \25\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13, 
1993).
    \26\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th 
Cong., 1st Sess. 301-02 (1977)).
---------------------------------------------------------------------------

E. EPA's Administrative Process in Consideration of California's 
Request

    On August 9, 2016, EPA published a notice of opportunity for public 
hearing and comment on California's waiver request.\27\ In that notice, 
EPA requested comments on whether the 2007 Amendments and the Truck 
Idling Amendments, each individually assessed, should be considered 
under the within-the-scope analysis or whether they should be 
considered under the full waiver criteria. For the In-Use Regulation, 
and to the degree the 2007 Amendments or the Truck Idling Amendments 
should not be considered under the within-the-scope criteria, EPA 
sought comment under the following three criteria: Whether (a) 
California's determination that its motor vehicle emissions standards 
are, in the aggregate, at least as protective of public health and 
welfare as applicable federal standards is arbitrary and capricious, 
(b) California needs such State standards to meet compelling and 
extraordinary conditions, and (c) California's standards and 
accompanying enforcement procedures are consistent with section 202(a) 
of the Clean Air Act.
---------------------------------------------------------------------------

    \27\ 81 FR 52678 (August 9, 2016).
---------------------------------------------------------------------------

    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 Analysis

    EPA initially evaluates California's 2007 Amendments and Truck 
Idling Amendments by application of our traditional within-the-scope 
analysis, as CARB requested. If we determine that CARB's request does 
not meet the requirements for a within-the-scope determination, we then 
evaluate the request based on a full authorization analysis. In 
determining whether amendments can be viewed as within the scope of 
previous waivers, EPA looks at whether CARB's revision is either 
limited to minor technical amendments to previously waived regulations 
or modifying regulations in order to provide additional compliance 
flexibility without significantly reducing the overall stringency of 
previously waived regulations. The amendments at issue in this request 
provide regulatory clarity and corrections, and provide limited 
exemptions in order to provide for compliance flexibility
    EPA sought comment on a range of issues, including those applicable 
to a within-the-scope analysis as well as those applicable to a full 
authorization analysis. No party submitted a comment that California's 
2007 Amendments or Truck Idling Amendments require a full authorization 
analysis. Given the lack of comments on this issue, and EPA's 
assessment of the nature of the amendments, I will evaluate 
California's 2007 amendments and Truck Idling Amendments by application 
of the traditional within-the-scope analysis, as CARB requested.
    As noted above, EPA can confirm that the amended regulations are 
within the scope of a previously granted waiver of preemption if three 
conditions are met. First, the amended regulations do not undermine 
California's determination that its standards, in the aggregate, are as 
protective of public health and welfare as applicable federal 
standards. Second, the amended regulations do not affect consistency 
with section 202(a) of the Act. Third, the amended regulations do not 
raise any ``new issues'' affecting EPA's prior authorizations.

B. Full Authorization Analysis

    CARB's waiver request also included the In-Use Regulation. EPA must 
grant a waiver for the In-Use Regulation unless the Administrator 
finds: (1) California's determination that its standards will be, in 
the aggregate, as protective of public health and welfare as applicable 
federal standards is arbitrary and capricious; (2) California does not 
need such California standards to meet compelling and extraordinary 
conditions; or (3) California's standards and accompanying enforcement 
procedures are not consistent with this section.
    EPA's evaluation of the 2007 Amendments, the Truck Idling 
Amendments, and the In-use Regulation is set forth below. Because of 
the similarity of the within-the-scope criteria and the full waiver 
criteria, a discussion of all three sets of respective amendments take 
place within each waiver criterion. To the extent that the

[[Page 4871]]

criteria are applied uniquely, or that additional criteria apply under 
either the within-the-scope analysis or the full waiver analysis, such 
application is also addressed below.

C. 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 motor vehicle emissions 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.\28\
    CARB notes that in its initial adoption and amendments to the In-
Use Regulation in 2006, 2007, and 2011, the CARB Board approved 
Resolutions 06-27, 07-56 and 11-19 in which it declared:

    Be it further resolved that the Board hereby determines that the 
regulations adopted herein will not cause California motor vehicle 
emission standards, in the aggregate, to be less protective of the 
public health and welfare than applicable federal standards.\29\
---------------------------------------------------------------------------

    \28\ 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 (January. 9, 2013).
    \29\ Waiver Support Document at 17. See EPA-HQ-OAR-2016-0017-
0027, EPA-HQ-OAR-2016-0017-0047, and EPA-HQ-OAR-2016-0017-0056.

CARB also notes that EPA has previously granted California a waiver for 
California's 2007 California HDDE standards (which included the NTE 
test procedures), and the addition of the In-Use Regulation will help 
ensure that the emission control systems on HDDEs are properly designed 
and sufficiently durable to ensure compliance with the emission 
requirements during their useful life. CARB further noted that the In-
Use Regulation provisions are ``essentially identical to the 
requirements of EPA's corresponding HDIUT program.\30\ CARB also notes 
that the 2007 Amendments in no way undermine the stringency of the 
underlying exhaust emission standards or the associated test procedures 
(which is the criterion under the within-the-scope analysis), but 
instead ensure that California's standards remain as, or more 
protective than, applicable federal standards.\31\ Similarly, CARB 
notes that with regard to the Truck Idling Amendments that EPA's 
regulations do not require new heavy-duty diesel engines to be equipped 
with idling shutdown systems or to optionally comply with 
NOX idling emission standards.\32\
---------------------------------------------------------------------------

    \30\ Id.
    \31\ Id. at 21.
    \32\ Id. at 24, citing Resolution 11-19.
---------------------------------------------------------------------------

    As it is clear that California's standards are at least as 
protective of public health and welfare as applicable federal 
standards, and that no evidence is in the record suggesting otherwise 
(and EPA is not otherwise aware of any information), I find that 
California's respective protectiveness determinations are not arbitrary 
and capricious for purposes of the In-Use Regulation, the 2007 
Amendments, and the Truck Idling Amendments.

D. 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 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\
---------------------------------------------------------------------------

    \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. See also 79 FR 46256, 46261 (August 7, 
2014).
---------------------------------------------------------------------------

    In conjunction with the initial adoption and subsequent amendments 
of the In-Use Regulation in 2006, 2007, and 2011, respectively (see 
Resolutions 06-27, 07-56, and 11-19 noted above), the CARB's Board 
confirmed California's longstanding position that California continues 
to need its own motor vehicle emission program to meet serious air 
pollution problems. CARB notes that the geographical and climatic 
conditions and the tremendous growth in vehicle population and use that 
moved Congress to authorize California to establish separate vehicle 
standards in 1967 still exist today.\35\ ``Nothing in these conditions 
has changed to warrant a change in EPA's confirmation, 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\
---------------------------------------------------------------------------

    \35\ Waiver Support Request Support Document at 18.
    \36\ Id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \37\ 74 FR 32744, 32762-63 (July 8, 2009), 76 FR 77515, 77518 
(December 13, 2011), 81 FR 95982 (December 29, 2016). EPA 
continually evaluates the air quality conditions in the United 
States, including California. California continues to experience 
some of the worst air quality in the country and continues to be in 
nonattainment with National Ambient Air Quality Standards for fine 
particulate matter and ozone, see ``Notice of Availability of the 
Environmental Protection Agency's Preliminary Interstate Ozone 
Transport Modeling Data for the 2015 Ozone National Ambient Air 
Quality Standard (NAAQS)'' at EPA-HQ-OAR-2016-0751.
    \38\ Id.
---------------------------------------------------------------------------

    Based on the record before us, including EPA's prior waiver 
decisions, I am 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, including its In-Use

[[Page 4872]]

Regulation, to meet compelling and extraordinary conditions in 
California.

E. 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 that there is inadequate lead time to 
permit the development of technology necessary to meet the In-Use 
Amendments, the 2007 Amendments, or the Truck Idling Amendments that 
are the subject of 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\
---------------------------------------------------------------------------

    \39\ See, e.g., 38 FR 30136 (November 1, 1973) and 40 FR 30311 
(July 18, 1975).
    \40\ See, e.g., 43 FR 32182 (July 25, 1978).
---------------------------------------------------------------------------

    Regarding test procedure conflict, CARB notes both EPA and CARB 
utilize essentially identical test procedures in certifying 2007 and 
subsequent MY heavy-duty engines and that the 2007 Amendments also do 
not preclude manufacturers from conducting one set of tests on a heavy-
duty engines or vehicle to determine compliance with both the 
California and federal requirements.\41\ For the reasons set forth 
above, and because there is no evidence in the record or other 
information that EPA is aware of, I cannot find that CARB's In-Use 
Compliance Regulation, 2007 Amendments, and Truck Idling Amendments are 
inconsistent with section 202(a) based upon test procedure 
inconsistency.
---------------------------------------------------------------------------

    \41\ Id. at 20, 22.
---------------------------------------------------------------------------

    In addition, EPA did not receive any comments arguing that the 
CARB's In-Use Regulation, 2007 Amendments, and Truck Idling 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).\42\ In EPA's review of CARB's In-Use Regulation, I find 
that CARB's statements about the capability of PEMS technology to 
measure gaseous pollutants as well as PM emissions is accurate.\43\ 
With regard to the 2007 Amendments, I find that the amendments do not 
raise any new issues regarding technological feasibility given that the 
amendments regarding how the NOX standard is expressed is a 
regulatory clarification and the amendment regarding the new option for 
certain chassis-certified 2007 through 2009 model year heavy-duty 
vehicles provides additional compliance flexibility. Similarly, the 
Truck Idling Amendments merely provide compliance flexibility to a 
previously waived program by setting forth limited compliance 
exemptions (i.e., the exemptions for armored vehicles and workover 
rigs).
---------------------------------------------------------------------------

    \42\ See, e.g., 78 FR 2134 (January 9, 2013), 47 FR 7306, 7309 
(February 18, 1982), 43 FR 25735 (June 17, 1978), and 46 FR 26371, 
26373 (May 12, 1981).
    \43\ Waiver Support Document at 19 (CARB explains that several 
PEMS capable of measuring gaseous emissions are commercially 
available and that the further development needed (at the time of 
CARB's initial adoption of the In-Use Regulation) for PM emissions 
monitoring by PEMS has been resolved.
---------------------------------------------------------------------------

    I therefore cannot find that California standards, which include 
the CARB's In-Use Regulation, 2007 Amendments, and Truck Idling 
Amendments are inconsistent with section 202(a).

F. New Issues

    EPA has stated in the past that if California promulgates 
amendments that raise new issues affecting previously granted waivers, 
we would not confirm that those amendments are within the scope of 
previous waivers.\44\ I do not believe that either the 2007 Amendments 
or the Truck Idling Amendments raise any new issues with respect to our 
prior waivers governing their underlying regulations. Moreover, EPA did 
not receive any comments that CARB's 2007 Amendments or Truck Idling 
Amendments raised new issues affecting the previously granted waivers. 
Therefore, I cannot find that CARB's 2007 Amendments and Truck Idling 
Amendments raise new issues and consequently, cannot deny CARB's 
within-the-scope requests based on this criterion.
---------------------------------------------------------------------------

    \44\ See, e.g., 78 FR 38970 (June 28, 2013), 75 FR 8056 
(February 23, 2010), and 70 FR 22034 (April 28, 2005).
---------------------------------------------------------------------------

IV. Decision

    After evaluating CARB's In-Use Regulation and CARB's submissions 
for EPA review, I am hereby granting a waiver for the In-Use 
Regulation. After evaluating CARB's 2007 Amendments and Truck Idling 
Amendments and CARB's submissions for EPA review, I am hereby 
confirming that such amendments are within the scope of prior EPA 
waivers.
    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 March 20, 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).


[[Page 4873]]


    Dated: January 9, 2017.
Gina McCarthy,
Administrator.
[FR Doc. 2017-00940 Filed 1-13-17; 8:45 am]
 BILLING CODE 6560-50-P
 

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