
[Federal Register: July 30, 2010 (Volume 75, Number 146)]
[Notices]               
[Page 44948-44951]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy10-39]                         

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9183-3]

 
California State Motor Vehicle Pollution Control Standards; 
Within-the-Scope Determination for Amendments to California's Low 
Emission Vehicle Program; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of within-the-scope determination.

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SUMMARY: EPA is confirming that technical amendments promulgated by the 
California Air Resources Board (CARB) are within-the-scope of existing 
waivers of preemption for CARB's Low Emission Vehicle (LEV II) program. 
These technical amendments were adopted by CARB in 2006, and include 
amendments to California's evaporative emission test procedures, 
onboard refueling vapor recovery and spitback test procedures, exhaust 
emission test procedures, and vehicle emission control label 
requirements. These amendments align each of California's test 
procedures and label requirements with its federal counterpart, in an 
effort to streamline and harmonize the California and federal programs. 
California believes these amendments will reduce manufacturer testing 
burdens and increase in-use compliance, without compromising the 
stringency of its numerical LEV II emission standards.

DATES: Any objections to the findings in this notice regarding EPA's 
determination, that California's amendments are within-the-scope of 
previous waivers, must be filed by August 30, 2010. Upon receipt of a 
timely objection, EPA will consider scheduling a public hearing to 
reconsider these findings, which would be announced in a subsequent 
Federal Register notice. Otherwise, these findings will become final on 
September 28, 2010.

ADDRESSES: Any objections to the within-the-scope findings in this 
Federal Register notice should be filed with Kristien Knapp at the 
address noted below. All documents relied upon in making this decision, 
including those submitted to EPA by CARB, are contained in the public 
docket.
    EPA has established a docket for this action under Docket ID No. 
EPA-HQ-OAR-2010-0238. 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 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 (e-mail) 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-2010-0238 in the ``Enter 
Keyword or ID'' fill-in box to view documents in the record of CARB's 
LEV II technical amendments within-the-scope waiver request. 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 also maintains a 
webpage that contains general information on its review of California 
waiver requests. Included on that page are links to several of the 
prior waiver Federal Register notices which are cited throughout 
today's notice; the page can be accessed at http://www.epa.gov/otaq/
cafr.htm.

FOR FURTHER INFORMATION CONTACT: Kristien Knapp, Compliance and 
Innovative Strategies Division, U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: 
(202) 343-9949. Fax: (202) 343-2800. E-mail: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. CARB's 2006 Technical Amendments

    On April 30, 2007, CARB submitted a request to EPA for confirmation 
that CARB's 2006 Technical Amendments to California's LEV II program 
are within-the-scope of previously granted waivers of preemption. 
CARB's 2006 Technical Amendments generally include amendments to its 
evaporative emission test procedures, four-wheel drive dynamometer 
provisions, and vehicle label requirements. Each of these general areas 
amends previously promulgated--and waived--amendments to CARB's LEV II 
program.
    CARB originally received a waiver of preemption for its LEV II 
program from EPA on April 22, 2003.\1\ The LEV II program itself exists 
as the result of a series of amendments to California's older LEV I 
program. The LEV II program set stringent evaporative emission 
standards and test procedures beginning with the 2004 model year. 
California subsequently enacted two sets of ``follow-up'' amendments to 
its LEV II program. The first set of follow-up amendments established 
exhaust emission standards and test procedures for light-duty and 
medium-duty gasoline-fueled vehicles. The following set of follow-up 
amendments revised

[[Page 44949]]

vehicle labeling provisions and refueling emission standards and test 
procedures. Both sets of follow-up amendments were determined by EPA to 
be within-the-scope of previous waivers on April 28, 2005.\2\ CARB 
presents that its 2006 Technical Amendments are within-the-scope of 
EPA's LEV II waiver, and EPA's within-the-scope confirmation for 
California's LEV II follow-up amendments.\3\
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    \1\ 60 FR 19811 (April 22, 2003).
    \2\ 70 FR 22034 (April 28, 2005).
    \3\ 68 FR 77 (April 22, 2003), 70 FR 22034 (April 28, 2005). See 
also 67 FR 162 (August 21, 2002) (EPA's waiver for California's 
onboard refueling vapor recovery standards and procedures, which 
pre-existed and were modified by CARB's second set of LEV II follow-
up amendments.).
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    CARB's 2006 Technical Amendments directly incorporate a direct 
final rule issued by EPA on December 8, 2005,\4\ in order to streamline 
California's exhaust, evaporative, and refueling test procedures to the 
corresponding federal procedures. CARB considered and approved the 2006 
Technical Amendments at a June 22, 2006 hearing by adopting Resolution 
06-20; \5\ the technical amendments became effective California state 
law on February 17, 2007, pending EPA's waiver review. CARB believes 
its effort to harmonize its procedures with EPA's procedures in the 
2006 Technical Amendments will reduce manufacturer testing burdens and 
compliance requirements without compromising the stringency or efficacy 
of its numerical emission standards.
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    \4\ 70 FR 72917 (December 8, 2005).
    \5\ CARB, ``Resolution 06-20,'' EPA-HQ-OAR-2010-0238-0006.
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    CARB's 2006 Technical Amendments affect only evaporative emission 
test procedures and not the underlying standards. Specifically, the 
2006 Technical Amendments: (1) Authorize manufacturers to opt to 
certify new vehicles to the Two-Day Diurnal plus Hot Soak (2D+HS) test 
sequence on the basis of an engineering judgment; (2) clarify that when 
a manufacturer has certified vehicles using an alternative running loss 
test procedure, CARB may conduct certification confirmatory tests and 
in-use compliance tests using either the specified procedures or that 
manufacturer's approved alternative running loss test procedure; (3) 
provide manufacturers an option to use an alternative canister 
preconditioning method; (4) clarify that only one evaporative test 
demonstration is required for all applicable fuel types of each 
evaporative/refueling family; (5) modify the Onboard Refueling Vapor 
Recovery (ORVR) requirements to make optional the disconnection of the 
canister and fuel tank-vent hose assembly when the drain-and-ten-
percent-fill step of the refueling test sequence is performed; (6) 
include several minor, non-substantive amendments to maintain federal 
harmonization; (7) modify existing test procedures to allow a 
manufacturer to perform certification emission tests of four-wheel 
drive (4WD) vehicles on 4WD dynamometers; (8) eliminate the requirement 
that manufacturers include certain outdated information on their 
vehicle labels.\6\ These changes amend title 13, California Code of 
Regulations (CCR), sections 1961, 1976, and 1978; \7\ these three 
amended code sections incorporate by reference three contemporaneously 
amended test procedure documents.\8\
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    \6\ CARB, Waiver Support Document, EPA-HQ-OAR-2010-0238-0002 at 
pp. 4-8.
    \7\ See CARB, ``Final Regulation Order,'' EPA-HQ-OAR-2010-0238-
0008.
    \8\ See CARB, Attachment 7, EPA-HQ-OAR-2010-0238-0009.
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B. 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 (this is known as 
California's ``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.\9\ The 
Administrator must grant a waiver unless she finds that: (A) 
California's above-noted ``protectiveness determination'' is arbitrary 
and capricious; \10\ (B) California does not need such State standards 
to meet compelling and extraordinary conditions; \11\ or (C) 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act.\12\ EPA has previously 
stated that consistency with section 202(a) requires that California's 
standards must be technologically feasible within the lead time 
provided, given due consideration of costs, and that California and 
applicable Federal test procedures be consistent.\13\
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    \9\ See S. Rep. No. 90-403 at 632 (1967).
    \10\ CAA section 209(b)(1)(A).
    \11\ CAA section 209(b)(1)(B).
    \12\ CAA section 209(b)(1)(C).
    \13\ See, e.g., 74 FR at 32767 (July 8, 2009); see also Motor 
and Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 
1095, 1126 (DC Cir. 1979).
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    If California amends regulations that were previously granted a 
waiver of preemption, EPA can confirm that the amended regulations are 
within-the-scope of the previously granted waiver 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.

II. Discussion

    As stated above, EPA can confirm that amended regulations are 
within-the-scope of a previously granted waiver if three conditions are 
met. CARB, in its Resolution 06-20, expressly found that its 2006 
Technical Amendments met each of these criteria.\14\
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    \14\ CARB, ``Resolution 06-20,'' EPA-HQ-OAR-2010-0238-0006, pp. 
4-5.
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A. California's Protectiveness Determination

    When granting a waiver for CARB's LEV II amendments, which 
established the LEV II standards at the heart of the LEV II program, 
EPA declined to find that California's protectiveness determination was 
arbitrary and capricious.\15\ The protectiveness

[[Page 44950]]

determination at issue in the original LEV II proceeding was based upon 
a comparison of California's LEV II emission standards, as amended by 
the LEV II follow-up amendments, to federal Tier 2 standards. CARB 
notes that its LEV II-to-Tier 2 comparison showed that LEV II standards 
were more stringent than the applicable federal Tier 2 standards, 
particularly taking into account CARB's more stringent NOX 
standards for the 2007 through 2010 model years and CARB's more 
stringent evaporative emission standards.\16\ CARB also notes that the 
LEV II follow-up amendments increased the protectiveness of 
California's LEV II program by ensuring that federal vehicles that are 
cleaner than their California counterparts would be certified in 
California.\17\
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    \15\ 68 FR 19812 (April 22, 2003). See also EPA's LEV II Waiver 
Decision Document at pp. 9-11 (``EPA did not receive any comments 
stating that CARB's LEV II requirement are not, in the aggregate, as 
stringent as applicable federal standards. Therefore, based on the 
record before me, I cannot find that CARB's LEV II regulations, as 
noted, would cause the California motor vehicle emission standards, 
in the aggregate, to be less protective of public health and welfare 
than applicable Federal standards.'') (citation omitted).
    \16\ CARB, ``Waiver Support Document,'' EPA-HQ-OAR-2010-0238-
0002 at 11.
    \17\ Id.
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    CARB's 2006 Technical Amendments do not increase or decrease the 
stringency of the LEV II standards; they only affect test procedures 
and label requirements, in an effort to harmonize California compliance 
requirements with federal compliance requirements. We see no reason to 
think that application of compliance requirements that mirror 
federally-promulgated compliance requirements would undermine--rather 
than reinforce--California's protectiveness determination.
    After reviewing the materials submitted by CARB, EPA can confirm 
that the 2006 Technical Amendments do not undermine California's 
previous determination that its standards, in the aggregate, are as 
protective of public health and welfare as applicable federal 
standards.

B. Consistency With Section 202(a) of the Clean Air Act

    EPA has stated in the past that California standards and 
accompanying test procedures would be inconsistent with section 202(a) 
of the Clean Air Act if: (1) There is inadequate lead time to permit 
the development of technology necessary to meet those requirements, 
giving appropriate consideration to cost of compliance within the lead 
time provided, or (2) the federal and California test procedures impose 
inconsistent certification requirements.\18\
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    \18\ See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034 
(April 28, 2005).
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    The first prong of EPA's inquiry into consistency with section 
202(a) of the Act depends upon technological feasibility. This requires 
EPA to determine whether adequate technology already exists; or if it 
does not, whether there is adequate time to develop and apply the 
technology before the standards go into effect. CARB points out that in 
the course of its rulemaking, no manufacturer raised any lead time 
concerns.\19\ Additionally, CARB notes that these procedures have 
already been promulgated and applied by EPA. Consequently, EPA cannot 
identify any lead time issue posed by application of procedures that 
are already used for federal compliance.\20\ We find that adequate 
technology already exists.
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    \19\ CARB, ``Waiver Support Document,'' EPA-HQ-OAR-2010-0238-
0002 at 12.
    \20\ Id.
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    The second prong of EPA's inquiry into consistency with section 
202(a) of the Act depends on the compatibility of the federal and 
California test procedures. CARB points out, again here, that its 
technical amendments are designed to harmonize its test procedures with 
federal test procedures.\21\ In fact, CARB found that without the 
technical amendments, inconsistent test procedures would exist.\22\ EPA 
agrees with this analysis; because identical test procedures cannot be 
incompatible, we cannot find that California's test procedures are 
inconsistent with our own.
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    \21\ Id.
    \22\ CARB, ``Resolution 06-20,'' EPA-HQ-OAR-2010-0238-0006 at 3.
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    For those reasons, EPA can confirm that the 2006 Technical 
Amendments are not inconsistent with section 202(a) of the Clean Air 
Act.

C. New Issues

    EPA has stated that if CARB amendments raise ``new issues'' 
affecting previously granted waivers, we cannot confirm that those 
amendments are within-the-scope of previous waivers.\23\ Here, CARB 
determined that there are no new issues presented by CARB's 2006 
Technical Amendments.\24\ CARB notes that in the course of its 
rulemaking, it received only two public comments: One comment from a 
manufacturer in support and one comment unrelated to the 
rulemaking.\25\ After our own review of CARB's 2006 Technical 
Amendments, EPA is similarly unable to identify any new issues.
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    \23\ See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034 
(April 28, 2005).
    \24\ CARB, ``Waiver Support Document,'' EPA-HQ-OAR-2010-0238-
0002 at 13.
    \25\ Id.
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III. Decision

    CARB's April 30, 2007 letter seeks confirmation from EPA that 
CARB's 2006 Technical Amendments to California's LEV II program are 
within-the-scope of previous waivers of preemption that EPA has 
granted. After evaluating the 2006 Technical Amendments, EPA confirms 
that CARB meets the three criteria that EPA traditionally uses to 
determine whether a present request from California is within-the-scope 
of previous waivers. First, EPA agrees with CARB that the technical 
amendments do not undermine California's protectiveness determination 
from its previous LEV II waiver requests. Second, EPA agrees with CARB 
that its 2006 Technical Amendments are not inconsistent with section 
202(a) of the Act. Third, EPA agrees with CARB that its 2006 Technical 
Amendments do not present any ``new issues,'' which would affect its 
previous waivers. Therefore, EPA confirms that CARB's 2006 Technical 
Amendments are within-the-scope of EPA's waivers of preemption for 
California's LEV II program.
    The Administrator has delegated the authority to grant California a 
section 209(b) waiver of preemption to the Assistant Administrator for 
Air and Radiation. Having given consideration to all the material 
submitted for this record, and other relevant information, I find that 
I cannot make the determinations required for a denial of a waiver 
pursuant to section 209(b) of the Act. EPA's analysis confirms CARB's 
finding that these amendments meet the criteria for receiving a within-
the-scope determination; therefore, EPA finds that the 2006 Technical 
Amendments are within-the-scope of previous waivers for California's 
LEV II program.
    Because these amendments are within-the-scope of a previous waiver, 
a public hearing to consider them is not necessary. However, if any 
party asserts an objection to these findings by August 30, 2010, EPA 
will consider holding a public hearing to provide interested parties an 
opportunity to present oral testimony and written evidence to show that 
there are issues to be addressed through a section 209(b) waiver 
proceeding and that EPA should reconsider its findings. Otherwise, 
these findings will become final on September 28, 2010.
    My decision will affect not only persons in California, but also 
manufacturers outside the State who must comply with California's 
requirements in order to produce engines for sale in California. For 
this reason, I determine and find that this is a final action of 
national applicability for purposes of section 307(b)(1) of the Act. 
Pursuant to section 307(b)(1) of the

[[Page 44951]]

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 September 28, 2010. Judicial 
review of this final action may not be obtained in subsequent 
enforcement proceedings, pursuant to section 307(b)(2) of the Act.
    As with past authorization and 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 purposes of 
5 U.S.C. 804(3).

    Dated: July 22, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-18791 Filed 7-29-10; 8:45 am]
BILLING CODE 6560-50-P

