California State Motor Vehicle Pollution Control Standards; Malfunction and Diagnostic System Requirements for 2004 and Subsequent Model Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles and 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 69106-69109]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27503]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9919-55-OAR]


California State Motor Vehicle Pollution Control Standards; 
Malfunction and Diagnostic System Requirements for 2004 and Subsequent 
Model Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles 
and 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 regulations entitled ``Malfunction 
and Diagnostic System Requirements--2004 and Subsequent Model-Year 
Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles and 
Engines'' (OBD II Requirements) and amendments to regulations entitled 
``Enforcement of Malfunction and Diagnostic System Requirements for 
2004 and Subsequent Model-Year Passenger Cars, Light-Duty Trucks, and 
Medium-Duty Vehicles and Engines'' (OBD II Enforcement Regulation). 
CARB adopted amendments to the OBD II Requirements through rulemakings 
in 1997, 2003, 2007 and 2010, and to the OBD II Requirements and OBD II 
Enforcement Regulation in 2012 and 2013. These amendments are 
collectively referred to herein as the OBD II Amendments. EPA 
previously granted California a waiver for the original OBD II 
Requirements, as last amended in 1995. EPA has also previously given 
notice and taken comments on the 1997 and 2003 OBD II amendments, but 
did not act on California's waiver requests for those amendments. CARB 
now requests that EPA confirm that all the OBD II Amendments be found 
within the scope of the previously granted waiver or, alternatively, 
that EPA grant a full waiver of preemption for the various amendments. 
This notice announces that EPA has tentatively scheduled a public 
hearing to consider California's requests for the 2007, 2010, 2012, and 
2013 OBD II Amendments, and that EPA is additionally accepting written 
comment on California's waiver requests, and on the effect of the 2007, 
2010, 2012, and 2013 OBD II Amendments on the prior 1997 and 2003 OBD 
II Amendments for which EPA previously took comments.

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.

[[Page 69107]]


ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2013-0573, 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-
2013-0573, 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-2013-0573. 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 Docket and 
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2013-0573. 
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-2013-0573, 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 OBD II Requirements and Enforcement Regulation

    CARB initially adopted the OBD II Requirements in July 1990 and 
then adopted amendments in 1992, 1993, and 1995. The OBD II 
Requirements direct motor vehicle manufacturers to incorporate vehicle 
onboard diagnostic (OBD) systems meeting particular requirements on all 
new passenger cars, light-duty trucks, and medium-duty vehicles and 
engines. Specifically, manufacturers are required to install OBD II 
systems that effectively monitor all emission-related components and 
systems on the motor vehicle for proper operation and for deterioration 
or malfunctions that cause emissions to exceed specific thresholds. The 
regulations also require that OBD II systems provide specific 
diagnostic information in a standardized format through a standardized 
serial data link on-board the vehicles to ensure that service and 
repair technicians can properly and promptly repair identified 
malfunctions.
    In October 1996,\1\ EPA issued a waiver under section 209(b) of the 
Clean Air Act (``CAA'' or ``the Act'') for the OBD II Requirements 
adopted in 1990 and as amended in 1992, 1993, and 1995. CARB 
subsequently adopted further amendments to the OBD II Requirements in 
1997 and 2003 \2\ and requested that EPA confirm those amendments to be 
within the scope of the previously granted OBD II waiver.\3\ EPA 
published a notice of opportunity for hearing and comment on the 1997 
and 2003 California requests on February 5, 2004.\4\ The 1997 and 2003 
waiver requests are currently pending a determination by EPA.
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    \1\ The decision was signed on October 2, 1996, and published at 
61 FR 53371 (October 11, 1996).
    \2\ The Board initially approved the amendments at rulemakings 
held respectively on December 12, 1996, April 25, 2002, and 
September 28, 2006.
    \3\ On December 24, 1997, CARB requested that the 1997 
amendments be found within the scope of the previously granted 
waiver. On October 30, 2003, CARB requested that the 2003 amendments 
be found within the scope of the previously granted waiver. The 
October 30, 2003, request further asked that the OBD II Enforcement 
Regulation be found within the scope of the previously granted 
waiver for ``California's Enforcement of New and In-Use Vehicle 
Standards,'' title 13, Cal. Code Regs. Section 2100 et seq. (see 61 
FR 53371 (October 11, 1996), 43 FR 9344 (March 7, 1978), and 43 FR 
25729 (June 14, 1978)).
    \4\ See 69 FR 5542 (February 5, 2004).
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    On August 9, 2007, CARB adopted additional amendments to the OBD II 
Requirements and minor amendments to the OBD II Enforcement Regulation. 
The amendments became operative on November 9, 2007. The 2007 OBD II 
Requirements amendments were made, inter alia, to address manufacturer

[[Page 69108]]

compliance concerns and to align the monitoring requirements with those 
adopted by CARB in 2005 for heavy duty diesel engines. By letter dated 
January 22, 2008, CARB requested that EPA find that the 2007 amendments 
fall within the scope of the previous waiver.
    On April 5, 2010, CARB adopted additional amendments to the OBD II 
Requirements, but not to the OBD II Enforcment Regulation. The 
amendments became operative on June 17, 2010. The 2010 OBD II 
Requirements amendments were made primarily to harmonize the medium-
duty diesel vehicle requirements with proposed revisions to monitoring 
requirements for heavy duty diesel engines. By letter dated December 
15, 2010, CARB requested that EPA find that the 2010 OBD II 
Requirements amendments fall within the scope of the previous waiver 
or, alternatively, that a new waiver be granted for the amendments.
    On March 12, 2012, and on June 26, 2013, CARB adopted additional 
amendments to the OBD II Requirements and to the OBD II Enforcement 
Regulation. The 2012 OBD II amendments became operative August 7, 2012. 
The 2013 OBD II amendments became operative on July 31, 2013. The 2012 
OBD II amendments were primarily made to relax and/or clarify OBD II 
requirements in response to manufacturer concerns. The 2013 OBD II 
amendments primarily affect medium-duty vehicles, to align the OBD II 
monitoring requirements with those adopted by CARB for heavy duty 
diesel engines. By letter dated February 12, 2014, CARB requested that 
EPA find that the 2012 and 2013 OBD II amendments fall within the scope 
of the previous waiver or, alternatively, that a full waiver be granted 
for the amendments.
    The various amendments to the OBD II Requirements are codified at 
title 13, California Code of Regulations, section 1968.2. The various 
amendments to the OBD II Enforcement Regulation are codified at title 
13, California Code of Regulations, section 1968.5.
    CARB seeks a determination that the 2007, 2010, 2012, and 2013 OBD 
II Amendments are within the scope of the previous waiver or, 
alternatively, that EPA grant California a full waiver of preemption 
for the OBD II Amendments.

II. Clean Air Act Waivers of Preemption

    Section 209(a) of the Clean Air Act 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.\5\ The 
Administrator must grant \6\ a waiver unless she finds that: (A) 
California's above-noted ``protectiveness determination'' is arbitrary 
and capricious; \7\ (B) California does not need such state standards 
to meet compelling and extraordinary conditions; \8\ or (C) 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act.\9\ 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.\10\
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    \5\ See S. Rep. No. 90-403 at 632 (1967).
    \6\ 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).
    \7\ CAA Sec.  209(b)(1)(A).
    \8\ CAA Sec.  209(b)(1)(B).
    \9\ CAA Sec.  209(b)(1)(C).
    \10\ 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 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 each of CARB's requests, including 
but not limited to the following issues.

A. 2007, 2010, 2012, and 2013 OBD II Amendments Within-the-Scope or 
Full Waiver

    First, we request comment on whether CARB's 2007, 2010, 2012, and 
2013 OBD II Amendments, whether individually or collectively assessed, 
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 2007, 2010, 2012, and 2013 
OBD II 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 2007, 2010, 2012, and 2013 OBD II Amendments Meet the 
Criteria for Full Waiver

    Should any party believe that the 2007, 2010, 2012, or 2013 OBD II 
Amendments do not merit consideration as within-the-scope of the 
previous waiver, EPA also requests comment on whether those amendments 
meet the criteria for full waiver. Specifically, we request comment on: 
(a) whether

[[Page 69109]]

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 Clean Air Act.

C. Effect of Newer OBD II Amendments on 1997 or 2003 Amendments

    As stated above, EPA has previously given notice and taken comments 
on CARB's requests for within-the-scope determinations related to 
CARB's 1997 and 2003 OBD II amendments. As those requests are still 
pending, EPA will additionally take comment on any relevant effects of 
the 2007 and 2010 amendments on the prior 1997 and 2003 OBD II 
amendments. EPA will consider such comments in any decision on CARB's 
1997 and 2003 OBD II amendments as well.

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-2013-0573.
    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. 2014-27503 Filed 11-19-14; 8:45 am]
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