California State Motor Vehicle Pollution Control Standards; Malfunction and Diagnostic System Requirements for 2010 and Subsequent Model Year Heavy-Duty Engines; Request for Waiver Determination; Opportunity for Public Hearing and Comment

Christopher Grundler
Environmental Protection Agency
November 20, 2014

[Federal Register Volume 79, Number 224 (Thursday, November 20, 2014)]
[Notices]
[Pages 69104-69106]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27495]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9919-54-OAR]


California State Motor Vehicle Pollution Control Standards; 
Malfunction and Diagnostic System Requirements for 2010 and Subsequent 
Model Year Heavy-Duty Engines; Request for Waiver Determination; 
Opportunity for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted amendments to its ``Malfunction and Diagnostic 
System Requirements for 2010 and Subsequent Model Year Heavy-Duty 
Engines'' regulation (HD OBD Requirements) and its ``Enforcement of 
Malfunction and Diagnostic System Requirements for 2010 and Subsequent 
Model-Year Heavy-Duty Engines'' regulation (HD OBD Enforcement 
Regulation), collectively referred to herein as HD OBD Regulations. EPA 
previously granted California a waiver for its HD OBD Regulations as 
amended in 2010. CARB adopted further amendments to the HD OBD 
Regulations in 2013 (``2013 HD OBD amendments''). By letter dated 
February 12, 2014, CARB requested that EPA confirm that the 2013 HD OBD 
amendments are within the scope of the previously granted waiver or, 
alternatively, that EPA grant a full waiver of preemption for the 
amendments. This notice announces that EPA has tentatively scheduled a 
public hearing to consider California's request for waiver of the 2013 
HD OBD amendments, and that EPA is additionally now accepting written 
comment on California's request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on January 14, 2015 at 10 a.m. ET. EPA will hold a hearing only 
if any party notifies EPA by December 15, 2014 to express interest in 
presenting the Agency with oral testimony. Parties that wish to present 
oral testimony at the public hearing should provide written notice to 
David Read at the email address noted below. If EPA receives a request 
for a public hearing, that hearing will be held at the William 
Jefferson Clinton Building (North), Room 5530 at 1200 Pennsylvania Ave. 
NW., Washington, DC 20460. If EPA does not receive a request for a 
public hearing, then EPA will not hold a hearing, and will instead 
consider CARB's request based on written submissions to the docket. Any 
party may submit written comments until February 16, 2015.
    Any person who wishes to know whether a hearing will be held may 
call David Read at (734) 214-4367 on or after December 17, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0699, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     Email: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2014-0699, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID No. EPA-HQ-OAR-2014-0699. EPA's policy is that all 
comments we receive will be included in the public docket without 
change and may be made available online at http://www.regulations.gov, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Do not submit information that you consider to be CBI or otherwise 
protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through http://www.regulations.gov, your 
email address will automatically be captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation

[[Page 69105]]

Docket and Information Center, maintained in Docket ID No. EPA-HQ-OAR-
2014-0699. Publicly available docket materials are available either 
electronically through http://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 
work 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 http://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 CBI or other information 
whose disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality also maintains a Web 
page that contains general information on its review of California 
waiver requests. Included on that page are links to prior waiver and 
authorization Federal Register notices. The page can be accessed at 
http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Read, Attorney, Office of 
Transportation and Air Quality, U.S. Environmental Protection Agency, 
2565 Plymouth Road, Ann Arbor, MI 48105. Telephone: (734) 214-4367. 
Fax: (734) 214-4212. Email: read.david@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. California's HD OBD Regulations

    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 
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 Clean Air Act (CAA 
or Act) for the HD OBD Requirements in 2008.\1\ In 2010, CARB updated 
the regulation to align the HD OBD Requirements with OBD regulations 
applicable to medium-duty vehicles, and adopted the HD OBD Enforcement 
Regulation. EPA issued California a waiver for the 2010 HD OBD 
Regulations in December 2012.\2\ CARB subsequently updated 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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    The 2013 amendments that are subject of this notice are intended to 
ease, clarify, or add flexibility to California's previously waived HD 
OBD requirements. 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 
amendments to its HD OBD regulations.
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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.
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II. Clean Air Act Waivers of Preemption

    Section 209(a) of the CAA preempts states and local governments 
from setting emission standards for new motor vehicles and engines. It 
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.

Through operation of section 209(b) of the Act, California is able to 
seek and receive a waiver of section 209(a)'s preemption. If certain 
criteria are met, section 209(b)(1) of the Act requires the 
Administrator, after notice and opportunity for public hearing, to 
waive application of the prohibitions of section 209(a). Section 
209(b)(1) only allows a waiver to be granted for any state that had 
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 
standards will be, in the aggregate, at least as protective of public 
health and welfare as applicable Federal standards (i.e., if such state 
makes a ``protectiveness determination''). Because California was the 
only state to have adopted standards prior to 1966, it is the only 
state that is qualified to seek and receive a waiver.\4\ The 
Administrator must grant \5\ a waiver unless she finds that: (A) 
California's above-noted ``protectiveness determination'' is arbitrary 
and capricious; \6\ (B) California does not need such state standards 
to meet compelling and extraordinary conditions; \7\ or (C) 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act.\8\ EPA has previously stated 
that consistency with section 202(a) requires that California's 
standards must be technologically feasible within the lead time 
provided, giving due consideration to costs, and that California and 
applicable Federal test procedures be consistent.\9\
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    \4\ See S. Rep. No. 90-403 at 632 (1967).
    \5\ EPA's review of California regulations under section 209 is 
not a broad review of the reasonableness of the regulations or its 
compatibility with all other laws. Sections 209(b) and 209(e) of the 
Clean Air Act limit EPA's authority to deny California requests for 
waivers and authorizations to the three criteria listed therein. As 
a result, EPA has consistently refrained from denying California's 
requests for waivers and authorizations based on any other criteria. 
In instances where the U.S. Court of Appeals has reviewed EPA 
decisions declining to deny waiver requests based on criteria not 
found in section 209(b), the Court has upheld and agreed with EPA's 
determination. See Motor and Equipment Manufacturers Ass'n v. 
Nichols, 142 F.3d 449, 462-63, 466-67 (D.C. Cir. 1998), Motor and 
Equipment Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20 
(D.C. Cir. 1979). See also 78 FR 58090, 58120 (September 20, 2013).
    \6\ CAA Sec.  209(b)(1)(A).
    \7\ CAA Sec.  209(b)(1)(B).
    \8\ CAA Sec.  209(b)(1)(C).
    \9\ See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and 
Equipment Manufacturers Association v. EPA, 627 F.2d 1095, 1126 
(D.C. Cir. 1979).
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    If California amends regulations that were previously granted a 
waiver, EPA can confirm that the amended regulations are within the 
scope of the previously granted waiver. Such within-the-scope 
amendments are permissible without a full waiver review if three 
conditions are met. First, the amended

[[Page 69106]]

regulations must 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 must not affect consistency with section 202(a) of the Act. 
Third, the amended regulations must not raise any ``new issues'' 
affecting EPA's prior waivers.

III. EPA's Request for Comments

    EPA invites public comment on CARB's request, including but not 
limited to the following issues.

A. 2013 HD OBD Amendments Within-the-Scope or Full Waiver

    First, we request comment on whether CARB's 2013 HD OBD amendments 
should be considered under the within-the-scope analysis or whether 
they should be considered under the full waiver criteria. Specifically, 
we request comment on whether California's 2013 HD OBD amendments (1) 
undermine California's previous determination that its standards, in 
the aggregate, are at least as protective of public health and welfare 
as comparable federal standards, (2) affect the consistency of 
California's requirements with section 202(a) of the Act, and (3) raise 
any other ``new issue'' affecting EPA's previous waiver or 
authorization determinations.

B. Whether 2013 HD OBD Amendments Meet the Criteria for New Waiver

    Should any party believe that CARB's 2013 HD OBD amendments do not 
merit consideration as within-the-scope of the previous waivers, EPA 
also requests comment on whether those amendments meet the criteria for 
full waiver. Specifically, we request comment on: (a) Whether CARB's 
determination that its standards, in the aggregate, are at least as 
protective of public health and welfare as applicable federal standards 
is arbitrary and capricious, (b) whether California needs such 
standards to meet compelling and extraordinary conditions, and (c) 
whether California's standards and accompanying enforcement procedures 
are consistent with section 202(a) of the CAA.

IV. Procedures for Public Participation

    If a hearing is held, the Agency will make a record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a public hearing is held, EPA will keep the 
record open until February 16, 2015. Upon expiration of the comment 
period, EPA will render a decision on CARB's request based on the 
record from the public hearing, if any, all relevant written 
submissions, and other information that the Agency deems pertinent. All 
information will be available for inspection at the EPA Air Docket No. 
EPA-HQ-OAR-2014-0699.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information'' 
(``CBI''). If a person making comments wants EPA to base its decision 
on a submission labeled as CBI, then a non-confidential version of the 
document that summarizes the key data or information should be 
submitted to the public docket. To ensure that proprietary information 
is not inadvertently placed in the public docket, submissions 
containing such information should be sent directly to the contact 
person listed above and not to the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed, and according to the procedures set forth in 40 CFR 
part 2. If no claim of confidentiality accompanies the submission when 
EPA receives it, EPA will make it available to the public without 
further notice to the person making comments.

    Dated: November 12, 2014.
Christopher Grundler,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2014-27495 Filed 11-19-14; 8:45 am]
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