[Federal Register Volume 73, Number 174 (Monday, September 8, 2008)]
[Notices]
[Pages 52042-52043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20732]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8708-1]


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 regarding waiver of clean air act preemption.

-----------------------------------------------------------------------

SUMMARY: By this decision, issued under section 209(b) of the Clean Air 
Act, as amended, (Act), 42 U.S.C. 7543(b), the Environmental Protection 
Agency (EPA) is granting California its request for a waiver Clean Air 
Act preemption for its 2010 and later model year heavy-duty vehicle and 
engine on-board diagnostic (OBD) requirements.

ADDRESSES: The Agency's Decision Document, containing an explanation of 
the Deputy Assistant Administrator's decision, as well as all documents 
relied upon in making that decision, including those submitted to EPA 
by CARB, are available at EPA's Air and Radiation Docket and 
Information Center (Air Docket). Materials relevant to this decision 
are contained in Docket No. EPA-HQ-OAR-2006-0844. The docket is located 
at the Air Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW., 
Washington, DC 20460, and may be viewed between 8 a.m. and 5:30 p.m., 
Monday through Friday. The telephone is (202) 566-1742. A reasonable 
fee may be charged by EPA for copying docket material.
    Additionally, 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, select ``Environmental Protection Agency'' from the pull-down 
Agency list, then scroll to ``Keyword or ID'' and enter EPA-HQ-OAR-
2006-0844 to view documents in the record of this California 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.
    Electronic copies of this Notice and the accompanying Decision 
Document are available via the Internet on the Office of Transportation 
and Air Quality (OTAQ) Web site and looking at the path entitled http://www.epa.gov/OTAQ. Users can find these documents by accessing the OTAQ 
web and looking at the path entitled Federal Register Notices. The 
electronic Federal Register version of the Notice is made available on 
the day of publication on the primary Web site http://epa.gov/docs/fedrgstr/EPA-AIR. Please note that due to the differences between the 
software used to develop the documents and the software into the 
documents may be downloaded, changes in format, page length, etc., may 
occur.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and 
Innovative Strategies Division, U.S. Environmental Protection Agency, 
Ariel Rios Building (6405J), 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460. Telephone: (202) 343-9256. E-Mail Address: 
[email protected]

SUPPLEMENTARY INFORMATION: I have decided to grant California a waiver 
of Clean Air Act preemption pursuant to section 209(b) of the Act for 
its 2010 and later model year heavy-duty vehicle and engine OBD 
requirements.\1\
---------------------------------------------------------------------------

    \1\ The CARB Board approved the OBD standards by Resolution 05-
38 on July 21, 2005 and the California Office of Administrative Law 
approved the regulations on February 15, 2006.
---------------------------------------------------------------------------

    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 emission 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 
California's standards are consistent with section 202(a) of the Act.
    As further explained in the Decision Document supporting today's 
decision, although EPA did receive comment on California's request, the 
Agency finds there is an insufficient basis to deny California its 
waiver request based on the criteria set forth in section 209(b) of the 
Act.
    In its request letter to EPA, the California Air Resources Board 
(CARB) stated that the OBD requirements 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 OBD 
requirements are less protective than applicable Federal standards. I 
cannot find that CARB's OBD regulations would cause the California 
motor vehicle emission standards, in the aggregate, to be less 
protective of public health and welfare than applicable Federal 
standards.
    CARB has repeatedly demonstrated, with respect to traditional 
pollution concerns, (i.e. not including global climate change), the 
existence of compelling and extraordinary conditions in California.\2\ 
EPA has not received any adverse comments to suggest that California no 
longer suffers from serious and unique air pollution problems. 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 cannotdeny the 
waiver based on a lack of compelling and extraordinary conditions.
---------------------------------------------------------------------------

    \2\ EPA recently denied California its request for a waiver for 
its new motor vehicle greenhouse gas standards. See 73 FR 12156 
(March 6, 2008).
---------------------------------------------------------------------------

    CARB stated in its request letters that the amendments do not raise 
any concerns of inadequate leadtime or impose any inconsistent 
certification requirements. EPA received comment suggesting that EPA 
not necessarily deny the ultimate granting of CARB's waiver request, 
but rather that EPA defer making a decision in order to ``maximize the 
opportunities for full alignment and harmonization between the EPA and 
ARB OBD programs for HDOH engines, and to reduce the prospects that 
other states will elect to opt into the ARB OBD program, which, from an 
emissions inventory perspective, will not be materially different from 
the EPA OBD program.'' EPA notes that its notice of proposed rulemaking 
for heavy-duty vehicle and engine OBD was published on January 24, 2007 
but a final rule has not been completed.\3\ Although EPA remains 
sensitive to the issues raised by the commenter, such comments do not 
include data or other basis by which to

[[Page 52043]]

demonstrate the feasibility of CARB's OBD requirements. I cannot find 
that CARB's OBD regulations, as noted, would cause the California motor 
vehicle emission standards to be inconsistent with section 202(a).
---------------------------------------------------------------------------

    \3\ 72 FR 3200 (January 24, 2007).
---------------------------------------------------------------------------

    A full explanation of EPA's decision, including our review of 
comments received, is contained in a Decision Document which may be 
obtained as explained above.
    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.
    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.
    Finally, the Administrator has delegated the authority to make 
determinations regarding waivers under section 209(b) of the Act to the 
Assistant Administrator for Air and Radiation.

    Dated: August 13, 2008.
Robert J. Meyers,
Principal Deputy Assistant Administrator, Office of Air and Radiation.
[FR Doc. E8-20732 Filed 9-5-08; 8:45 am]
BILLING CODE 6560-50-P