[Federal Register Volume 69, Number 24 (Thursday, February 5, 2004)]
[Notices]
[Pages 5542-5544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2422]



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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-7619-1]


California State Motor Vehicle Pollution Control Standards; 
Within the Scope Requests; Opportunity for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and public comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has approved two separate sets of amendments to its 
``Malfunction and Diagnostic System Requirements for 1994 and 
Subsequent Model Year Passenger Cars, Light-Duty Trucks, and Medium-
Duty Vehicles and Engines (OBD II).'' The first set of amendments 
addresses implementation and certification concerns that had been 
identified since implementation of OBD II in 1994. These amendments 
also add several monitoring requirements and diagnostic and repair 
information requirements. The second set of amendments applies to 2004 
and subsequent model year vehicles. These amendments, among other 
things, also address implementation and certification issues that have 
been identified since implementation of OBD II in 1994, and address 
monitoring requirements for new emission technologies that will be used 
in 2004 and subsequent model year vehicles. The amendments also include 
several new compliance provisions relating to OBD II monitoring 
requirements, including post-assembly line evaluation testing and an 
OBD II specific in-use testing protocol. CARB requests that EPA confirm 
CARB's findings that its amendments are within-the-scope of a previous 
waiver issued by EPA under section 209(b) of the Clean Air Act (Act), 
42 U.S.C. 7543(b), which covered CARB's OBD II regulations through 
April 26, 1995.

DATES: EPA has tentatively scheduled a public hearing for March 22, 
2004, beginning at 10 a.m. EPA will hold a hearing only if a party 
notifies EPA by February 20, 2004, expressing its interest in 
presenting oral testimony regarding CARB's requests or other issues 
noted in this notice. By March 1, 2004, any person who plans to attend 
the hearing should call David Dickinson of EPA's Certification and 
Compliance Division at (202) 343-9256 to learn if a hearing will be 
held. Any party may submit written comments by April 21, 2004.

ADDRESSES: EPA will make available for public inspection at the Air and 
Radiation Docket written comments received from interested parties, in 
addition to any testimony given at the public hearing. The official 
public docket is the collection of materials that is available for 
public viewing at the Air and Radiation Docket in the EPA Docket 
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air and Radiation Docket is (202) 566-1743. 
The reference number for this docket is A-99-45. Parties wishing to 
present oral testimony at the public hearing(s) should provide written 
notice to David Dickinson at the address noted below; parties should 
also submit any written comments to David Dickinson. If EPA receives a 
request for a public hearing, EPA will hold the public hearing at 1310 
L St, NW., Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Certification and 
Compliance Division (6405J), U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave, NW., Washington, DC 20460. Telephone: (202) 343-9256, 
Fax: (202) 343-2804, e-mail address: [email protected]. EPA will 
make available an electronic copy of this Notice on the Office of 
Transportation and Air Quality's (OTAQ's) homepage (http://www.epa.gov/otaq/). Users can find this document by accessing the OTAQ homepage and 
looking at the path entitled ``Regulations.'' This service is free of 
charge, except any cost you already incur for Internet connectivity. 
Users can also get the official Federal Register version of the Notice 
on the day of publication on the primary Web site: (http://www.epa.gov/docs/fedrgstr/EPA-AIR/).
    Please note that due to differences between the software used to 
develop the documents and the software into which the documents may be 
downloaded, changes in format, page length, etc., may occur. Parties 
wishing to present oral testimony at the public hearing should provide 
written notice to David Dickinson at: U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., (6405J), Washington, DC 20460. 
Telephone: (202) 343-9256.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 209(a) of the Clean Air Act, as amended (``Act''), 42 
U.S.C. 7543(a), 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.
    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) 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 the state 
standards will be, in the aggregate, at least as protective of 
public health and welfare as applicable federal standards. The 
Administrator must grant a waiver unless he finds that (A) the 
determination of the state is arbitrary and capricious, (B) the 
state does not need the state standards to meet compelling and 
extraordinary conditions, or (C) the state standards and 
accompanying enforcement procedures are not consistent with section 
202(a) of the Act.

    CARB submitted an October 30, 2003, letter to the Administrator 
notifying EPA that it had adopted additional amendments to its OBD II 
program and requesting that EPA confirm that its amendments are within 
the scope of the previously granted OBD II waiver. These amendments 
provide, among other requirements: (1) The continuation of existing 
emission malfunction thresholds for vehicles manufacturers in 2004 and 
subsequent model years with an increase in the malfunction threshold 
for vehicles complying with LEV II SULEV from 1.75 times the applicable 
standard to 2.5 times the applicable standard; (2) an update or 
expansion of current monitoring requirements including catalyst system 
monitoring for oxides of nitrogen (NOX) conversion 
efficiency, secondary air system monitoring for proper air flow during 
vehicle warm-up for 2006 and subsequent model years, more frequent 
monitoring of many components to better detect for intermittent faults 
and a standardized methodology to determine operating frequency for 
several major monitors during in-use driving (i.e., In-Use Performance 
Ratios); (3) new monitoring requirements to account for new emission-
control technologies, which will, in general, be phased in starting 
with the 2005 or 2006 model year, including monitoring for

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variable valve timing and/or control systems, cold start emission 
reduction strategies, and direct ozone reduction systems, and for 
diesel emission control systems (catalyst and particulate trap); (4) 
additional diagnostic information on the OBD data stream, including, 
but not limited to, vehicle identification numbers (VIN), catalyst 
temperature, distance traveled since MIL activated and other 
information contained in Title 13 CCR 1968.2 (f)(4.2); (5) an allowance 
for the new Controller Area Network (CAN) communication protocols in 
addition to the current communication protocols for 2004-2007 and 
solely for all 2008 and subsequent model years; and (6) new enforcement 
provisions which include (i) requirements for a sampling of assembly 
line production vehicles, validation testing on one to three production 
vehicles per model year, and a collection of in-use data from new motor 
vehicles during the first six months after production begins and (ii) a 
new ``section 1968.5'' which establishes an OBD II-specific in-use 
testing protocol and associated remedial provisions, including detailed 
in-use testing procedures for OBD II systems installed on 2004 and 
subsequent model year vehicles, criteria that CARB will consider in 
determining compliance and appropriate remedies, and procedures for 
manufacturers to follow in the course of remedial action.
    CARB also submitted a December 24, 1997, letter to the 
Administrator notifying EPA that it had adopted amendments to its OBD 
II program. These amendments provide for, among other requirements: (1) 
Catalyst monitoring requirements for low emission vehicles (LEV I 
program) to specify a tailpipe emission level malfunction criterion in 
place of a front catalyst efficiency criterion with a phase-in 
commencing in 1998; (2) a new phase-in of the ``full-range'' misfire 
requirement of 50 percent in the 1997-1999 model years, 75 percent in 
2000, 90 percent in 2001 and 100 percent in 2002, including a 
clarification of the criteria for meeting the full range detection 
requirements; (3) an allowance of manufacturers to demonstrate 
compliance with the requirement to monitor the evaporative system for 
leaks equal or greater in magnitude than a 0.020 inch diameter hole, 
with a phase-in beginning with the 2000 model year, if it can 
demonstrate that smaller diameter leaks will not cause evaporative 
emissions to exceed 1.5 times the applicable standard; (4) a positive 
crankcase ventilation (PCV) monitoring requirement with a phase-in from 
the 2002 through 2004 model years; (5) a thermostat monitoring 
requirement with a phase-in from the 2000 through 2002 model years; (6) 
an extension of the alternate fuel vehicle full compliance requirement 
with OBD II to the 2005 model year; (7) beginning with the 1997 model 
year through the 2003 model year, manufacturers could continue to have 
two deficiencies without being subject to penalties, unless a 
monitoring strategy was completely absent, in which case penalties 
would accrue with the first deficiency, and any additional deficiency 
provisions; (8) a deletion of the tampering protection provisions 
except those that apply to non-reprogrammable vehicles; and (9) various 
service information requirements.
    CARB asserts, and requests that the Administrator determine, that 
its OBD II amendments fall within the scope of EPA's previously granted 
waiver, and thereby may be deemed to meet the requirements of section 
209(b) of the Act set forth above.
    EPA has decided in the past that when California's amendments: (1) 
Do not undermine the previous determination that California's 
standards, in the aggregate, are at least as protective of public 
health and welfare as comparable Federal standards; (2) do not affect 
the consistency of California's requirements with section 202(a) of the 
Act; and (3) raise no new issues affecting EPA's previous waiver 
determinations, then EPA's concurrence that the amendments are within 
the scope of a previous waiver determination is merited.
    When EPA receives new waiver requests from CARB, EPA publishes a 
notice of opportunity for public hearing and comment and then publishes 
a decision in the Federal Register following the public comment period. 
In contrast, when EPA receives within the scope waiver requests from 
CARB, EPA traditionally publishes a decision in the Federal Register 
and concurrently invites public comment if an interested party is 
opposed to EPA's decision.
    Because of the many elements of CARB's OBD II amendments, EPA 
invites comment on the following issues before making a determination 
for CARB's within the scope requests: (1) Should EPA consider CARB's 
requests as within the scope of a previous waiver request or should 
they be considered and examined as new waiver requests? (2) If EPA were 
to consider CARB's requests as within the scope requests then do 
California's respective amendments (a) undermine California's previous 
determinations that its standards, in the aggregate, are at least as 
protective of public health and welfare as comparable Federal 
standards, (b) affect the consistency of California's requirements with 
section 202(a) of the Act, and (c) raise new issues affecting EPA's 
previous waiver determinations? (3) If EPA were to consider CARB's 
requests as new waiver requests, then provide comment on (a) whether 
California's determinations that its standards are at least as 
protective of public health and welfare as applicable federal standards 
are arbitrary and capricious, (b) whether California needs separate 
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 Act.

II. Procedures for Public Participation

    If a public hearing is held, any party desiring to make an oral 
statement on the record should file ten (10) copies of its proposed 
testimony and other relevant material with David Dickinson at the 
address listed above no later than March 19, 2004. In addition, the 
party should submit 25 copies, if feasible, of the planned statement to 
the presiding officer at the time of the hearing.
    In recognition that a public hearing is designed to give interested 
parties an opportunity to participate in this proceeding, there are no 
adverse parties as such. Statements by participants will not be subject 
to cross-examination by other participants without special approval by 
the presiding officer. The presiding officer is authorized to strike 
from the record statements that he or she deems irrelevant or 
repetitious and to impose reasonable time limits on the duration of the 
statement of any participant.
    If a hearing is held, the Agency will make a verbatim 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 April 21, 2004. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record of the public hearing, if any, relevant written 
submissions, and other information that he deems pertinent.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest 
possible extent and label it as ``Confidential Business Information'' 
(CBI). If a person making comments wants EPA to base its decision in 
part on a submission labeled CBI, then a nonconfidential version of

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the document that summarizes the key data or information should be 
submitted for the public docket. To ensure that proprietary information 
is not inadvertently placed in the 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 
by 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: January 27, 2004.
Robert Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 04-2422 Filed 2-4-04; 8:45 am]
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