[Federal Register Volume 76, Number 218 (Thursday, November 10, 2011)]
[Notices]
[Pages 70128-70130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29168]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-9490-7]


California State Motor Vehicle Pollution Control Standards; 
Amendments to the California Heavy-Duty Engine On-Board Diagnostic 
Regulation; Waiver Request; Opportunity for Public Hearing

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 regulations related to heavy-duty 
engine on-board diagnostic (HD OBD) in California. By letter dated 
September 27, 2010, CARB requested that EPA confirm that its amendments 
are within-the-scope of a previous waiver of preemption issued by EPA. 
In the alternative, CARB requested that EPA confirm that the amendments 
that relax and clarify the existing HD OBD regulation are within-the-
scope of a previous waiver of preemption issued by EPA and that EPA 
grant a new waiver of preemption for the remainder of CARB's HD OBD 
amendments. This notice announces that EPA has tentatively scheduled a 
public hearing concerning California's request and that EPA is 
accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on December 12, 2011 at 10 a.m. EPA will hold a hearing only if 
any party notifies EPA by November 25, 2011, expressing its interest in 
presenting oral testimony. By December 1, 2011, any person who plans to 
attend the hearing may call David Dickinson at (202) 343-9256 to learn 
if a hearing will be held or may check the following Web site for an 
update: http://www.epa.gov/otaq/cafr.htm.
    Parties wishing to present oral testimony at the public hearing 
should also provide written notice to David Dickinson at the address 
noted below. If EPA receives a request for a public hearing, that 
hearing will be held at 1310 L St. NW., Washington, DC 20005. If EPA 
does not receive a request for a public hearing, then EPA will not hold 
a hearing, and instead consider CARB's request based on written 
submissions to the docket. Any party may submit written comments by 
January 9, 2012.

ADDRESSES: EPA will make available for public inspection materials 
submitted by CARB, written comments received from 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 No. EPA-HQ-OAR-2011-0816. The 
docket is located at The Air Docket, 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, enter EPA-HQ-OAR-2011-0816 in ``Search Documents'' to view 
documents in the record. 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.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance Division 
(6405J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. 
NW., Washington, DC 20460. Telephone: (202) 343-9256, Fax: (202) 343-
2804, email address: [email protected].

SUPPLEMENTARY INFORMATION: 

(A) Procedural History

    CARB initially adopted the HD OBD requirements in December 2005, 
and EPA issued a waiver of preemption in August 2008.\1\ CARB's HD OBD 
regulation, as initially adopted, required manufacturers to install a 
fully compliant HD OBD system on both

[[Page 70129]]

diesel and gasoline powered heavy-duty engines (engines used in 
vehicles having a gross vehicle weight rating greater than 14,000 
pounds). The requirements are phased in on a single engine family for 
model years 2010 through 2012 before requiring manufacturers to 
incorporate fully compliant HD OBD systems on all 2013 and later model 
year engines.
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    \1\ The EPA decision was signed on August 13, 2008 and published 
at 73 FR 52042 (September 8, 2008).
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    CARB adopted amendments to its HD OBD regulation along with a new 
HD OBD enforcement regulation on April 5, 2010.\2\ In amending the HD 
OBD regulation CARB, among other provisions, relaxed the malfunction 
thresholds until 2013 model year for three major emission controls: PM 
filters, NOX catalysts, and NOX sensors. The 
amendments also delay certain monitoring requirements, including those 
that apply to catalyst-based components, until 2013. CARB further 
amended the regulation to expand the monitoring requirements for EGR 
and boost control system strategies.
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    \2\ The California Office of Administrative Law approved the 
amendments and the new regulation on May 18, 2010. The HD OBD 
requirements, as adopted in 2005, included detailed certification 
requirements and production engine/vehicle evaluation testing. The 
amended regulations, at 13 CCR section 1971.5, includes additional 
in-use enforcement provisions.
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    By letter dated September 27, 2010, CARB requested that EPA confirm 
that amendments to its HD OBD regulations are within-the-scope of a 
previous waiver of preemption issued by EPA.\3\ In the alternative, 
CARB requested that EPA confirm that the amendments that relax and 
clarify the existing HD OBD regulation (e.g. the major emission control 
monitoring requirements noted above) are within-the-scope of EPA's 
previous HD OBD waiver of preemption. Under this alternative request, 
CARB seeks a new waiver of preemption for the remainder of CARB's HD 
OBD amendments.
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    \3\ CARB's request letter can be found at EPA-HQ-OAR-2011-0816-
0001. EPA's previous waiver is at 73 FR 52042 (September 8, 2008).
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(B) Background and Discussion

    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. California is the only state that is 
qualified to seek and receive a waiver under section 209(b). The 
Administrator must grant a waiver unless she finds that (A) the above-
described ``protectiveness'' determination of the state is arbitrary 
and capricious, (B) the state does not need the state standard 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. 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.
    When EPA receives new waiver requests from CARB, EPA traditionally 
publishes a notice of opportunity for public hearing and comment and 
then, after the comment period has closed, publishes a notice of its 
decision in the Federal Register. In contrast, when EPA receives 
within-the-scope waiver requests from CARB, EPA usually publishes a 
notice of its decision in the Federal Register and concurrently invites 
public comment if an interested party is opposed to EPA's decision.
    Although CARB has submitted a within-the-scope waiver request for 
its HD OBD amendments EPA invites comment on the following issues. 
First, should California's HD OBD amendments be considered under the 
within-the-scope criteria or should they be considered under the full 
waiver criteria? Second, to the extent that not all of the HD OBD 
amendments should be considered under the within-the-scope criteria, 
should the amendments identified by CARB (as part of its alternative 
request) be considered under the within-the-scope criteria? Third, to 
the extent that HD OBD amendments should be considered as a within-the-
scope request, do such amendments meet the criteria for EPA to grant a 
within-the-scope confirmation? Specifically, do those amendments: (a) 
Undermine California's previous determination that its standards, in 
the aggregate, are at least as protective of pubic health and welfare 
as comparable Federal standards, (b) affect the consistency of 
California's requirements with section 202(a) of the Act, or (c) raise 
new issues affecting EPA's previous waiver determinations? Please also 
provide comments to address the full waiver analysis, in the event that 
EPA cannot confirm that CARB's HD OBD amendments are within-the-scope 
of previous waivers. The full waiver analysis, which we are requesting 
comment on, includes consideration of the following three criteria: 
Whether (a) 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) California needs 
separate standards to meet compelling and extraordinary conditions, and 
(c) California's standards and accompanying enforcement procedures are 
consistent with section 202(a) of the Act.
    Procedures for Public Participation: In recognition that public 
hearings are 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 pubic hearing is held, EPA will keep the record 
open until January 9, 2012. Upon expiration of the comment period, the 
Administrator will render a decision of CARB's request based on the 
record of the public hearing, if any, relevant written submissions, and 
other information that she deems pertinent. All information will be 
available for inspection at the EPA Air Docket No. EPA-HQ-OAR-2011-
0816.
    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 as CBI, then a non-confidential version of 
the document that summarizes the

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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: November 4, 2011.
Margo Tsirigotis Oge,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2011-29168 Filed 11-9-11; 8:45 am]
BILLING CODE 6560-50-P