California State Motor Vehicle Pollution Control Standards; Notice of Waiver of Clean Air Act Preemption; California's 2010 Model Year Heavy-Duty Vehicle and Engine On-Board Diagnostic Standards

Gina McCarthy
Environmental Protection Agency
December 10, 2012

[Federal Register Volume 77, Number 237 (Monday, December 10, 2012)]
[Notices]
[Pages 73459-73461]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29792]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9759-4]


California State Motor Vehicle Pollution Control Standards; 
Notice of Waiver of Clean Air Act Preemption; California's 2010 Model 
Year Heavy-Duty Vehicle and Engine On-Board Diagnostic Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision.

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SUMMARY: EPA has granted the California Air Resources Board (CARB) its 
request to confirm that its amendments to California's heavy-duty 
vehicle and engine on-board diagnostic (HD OBD) requirements that relax 
the standards for 2010-2012 model years (MYs) are within the scope of a 
previous waiver of preemption of the Clean Air Act (Act). The 
amendments to the HD OBD requirements for MY 2013 and later are granted 
a new waiver of preemption.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2011-0816. All documents relied upon in making this 
decision, including those submitted to

[[Page 73460]]

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, located at 
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 electronic mail (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. You may access EPA dockets at http://www.regulations.gov. After 
opening the www.regulations.gov Web site, enter EPA-HQ-OAR-2011-0816 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 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, Compliance Division, 
U.S. Environmental Protection Agency, Ariel Rios Building (6405J), 1200 
Pennsylvania Avenue NW., Washington, DC 20460. Telephone: (202) 343-
9256. EMail Address: Dickinson.David@EPA.GOV.

SUPPLEMENTARY INFORMATION: I confirm that the amendments to 
California's HD OBD requirements that relax the requirements for the 
2010-2012 MYs are within the scope of a previous waiver of Clean Air 
Act preemption. I am also granting a new waiver of Clean Air Act 
preemption for the amendments to California's HD OBD requirements that 
create more stringent requirements for MYs 2013 and later pursuant to 
section 209(b) of the Act.\1\
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    \1\ The CARB Board approved the OBD amendments by Resolution 09-
37 on May 28, 2009 and the California Office of Administrative Law 
approved the regulations on May 18, 2010.
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    Section 209(b) of the Act provides that, if certain criteria are 
met, the Administrator shall waive preemption for California to enforce 
new motor vehicle emissions standards and accompanying enforcement 
procedures. The criteria include consideration of whether California 
arbitrarily and capriciously determined that its standards are, in the 
aggregate, at least as protective of public health and welfare as the 
applicable Federal standards, whether California needs State standards 
to meet compelling and extraordinary conditions, and whether the 
standards are consistent with section 202(a) of the Act.
    If California acts to amend a previously waived standard or 
accompanying enforcement procedure, the amendment may be considered 
within the scope of the previously granted waiver, provided that it 
doesn't undermine California's determination that its standards, in the 
aggregate, are at least as protective of public health and welfare as 
the applicable Federal standards, does not affect its consistency with 
section 202(a) of the Act, and raises no new issues affecting EPA's 
previous waiver decisions.
    In its request letter to EPA, CARB asked EPA to confirm that the HD 
OBD amendments that relax the requirements for the 2010-2012 MYs are 
within the scope of an earlier waiver. CARB stated that these 
amendments will not cause the California standards, in the aggregate, 
to be less protective of public health and welfare than the applicable 
Federal standards. EPA received no information during this proceeding 
that questioned whether CARB's HD OBD requirements are less protective 
than applicable Federal standards. Therefore, I cannot find that CARB's 
HD OBD regulations would cause the California motor vehicle emissions 
standards, in the aggregate, to be less protective of public health and 
welfare than applicable Federal standards.
    CARB stated in its request letters that the amendments do not raise 
any concerns of technological infeasibility, inadequate lead-time or 
imposition of any inconsistent certification requirements. Because EPA 
has not received any adverse public comment, or any other relevant 
information on this issue, I cannot find that CARB's HD OBD 
regulations, as noted, would cause the California motor vehicle 
emission standards to be inconsistent with section 202(a).
    EPA has received no comments on whether the amendments to 
California's HD OBD regulations that relax the requirements for the 
2010-2012 MYs raise any new issues. Therefore, I find that these 
particular amendments do not raise any new issues.
    Given the above, EPA can confirm that the amendments that relax the 
requirements for the 2010-2012 MYs are within the scope of the previous 
waiver of preemption.
    In its request letter to EPA, CARB also asked EPA to confirm that 
the HD OBD amendments for MYs 2013 and later are within the scope of an 
earlier waiver. EPA cannot confirm that the amendments to California's 
HD OBD requirements that create new, more stringent standards for 2013 
and later model year engines, and the new enforcement procedures are 
within the scope of the previous waiver of preemption. EPA has stated 
in prior waiver and authorization determinations that increases in the 
stringency of standards are ``new issues'' for which full waiver or 
authorization is required.\2\ Because the amendments for MY 2013 and 
later increase the stringency of the standards, they are not within the 
scope of the previous waiver, and must be evaluated under the standards 
for a full waiver of preemption.
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    \2\ See, e.g., 71 FR 44027 at 44028 (August 3, 2006)(``EPA 
believed it possible that CARB's amendments do in fact raise `new 
issues' as they impose new more stringent standards * * *'').
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    In its request letter to EPA, CARB asked EPA, in the alternative, 
to grant a full waiver of preemption for the amendments that create 
new, more stringent requirements for 2013 and later MYs, and the 
accompanying enforcement procedures. Therefore, EPA has applied the 
traditional, full waiver analysis to these particular amendments.
    CARB stated in its request that the HD OBD regulations, as amended, 
are at least as protective of public health and safety as the 
comparable Federal standards. EPA has not received any information 
suggesting that the new standards are any less protective of public 
health and safety as the comparable Federal standards. Therefore, I 
cannot find that CARB acted arbitrarily and capriciously in determining 
that its OBD regulations would not cause the California motor vehicle 
emission standards, in the aggregate, to be less protective of public 
health and welfare than applicable Federal standards.

[[Page 73461]]

    CARB has repeatedly demonstrated the existence of compelling and 
extraordinary conditions in California. EPA has not received any 
adverse comments to suggest that California no longer suffers from 
compelling and extraordinary conditions. Because EPA has not received 
adverse public comment, or any other relevant information, challenging 
the need for CARB's own motor vehicle pollution control program based 
on lack of compelling and extraordinary conditions for the purposes of 
this waiver request, I cannot deny the waiver based on a lack of 
compelling and extraordinary conditions.
    CARB stated in its request letter that the amendments and 
accompanying enforcement procedures do not raise any concerns of 
technological infeasibility, inadequate lead time or impose any 
inconsistent certification requirements. Because EPA has not received 
adverse public comment, or any other relevant information regarding the 
consistency of California's HD OBD amendments with section 202(a) of 
the Clean Air Act, I cannot find that CARB's HD OBD regulations, as 
noted, would cause the California motor vehicle emissions standards to 
be inconsistent with section 202(a).
    Therefore, as to the amendments that create new, more stringent 
requirements for the 2013 and later MYs, and the new enforcement 
procedures, there is insufficient basis to deny a full waiver of 
preemption under the criteria set forth in section 209(b) of the Act.
    A full explanation of EPA's decision is contained in a Decision 
Document which may be obtained as explained above.
    The Administrator has delegated the authority to grant California 
section 209(b) waivers of preemption to the Assistant Administrator for 
Air and Radiation. After evaluating California's HD OBD amendments and 
CARB's submissions, EPA is taking the following actions. First, EPA is 
confirming that the amendments that relax the HD OBD requirements for 
2010-2012 MYs are within the scope of the previous waiver of 
preemption. Second, EPA is granting a new waiver of preemption for the 
amendments to the HD OBD regulations that create new, more stringent 
requirements for MY 2013 and later, along with the accompanying 
enforcement procedures.
    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 heavy-duty vehicles and engines for 
sale in California. For this reason, I hereby determine and find that 
this is a final action of national applicability for the 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 February 8, 2013. Judicial review of this 
action may not be obtained in subsequent enforcement proceedings, 
pursuant to section 307(b)(2) of the Act.
    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.
    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 the purposes 
of 5 U.S.C. 804(3).

    Dated: November 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-29792 Filed 12-7-12; 8:45 am]
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