[Federal Register Volume 79, Number 152 (Thursday, August 7, 2014)]
[Notices]
[Pages 46256-46265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18742]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2013-0491; FRL9914-78-OAR]


California State Motor Vehicle Pollution Control Standards; 
Heavy-Duty Tractor-Trailer Greenhouse Gas Regulations; Notice of 
Decision

AGENCY: Environmental Protection Agency.

ACTION: Notice of Decision.

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SUMMARY: The Environmental Protection Agency (EPA) is granting the 
California Air Resources Board's (CARB) request for a waiver of Clean 
Air Act preemption to enforce provisions of its Heavy-Duty Tractor-
Trailer Greenhouse Gas Regulations (``HD GHG Regulations'') applicable 
to new 2011 through 2013 model year (MY) Class 8 tractors equipped with 
integrated sleeper berths (sleeper-cab tractors) and to new 2011 and 
subsequent MY dry-van and refrigerated-van trailers that are pulled by 
such tractors on California highways. This decision is issued under the 
authority of the Clean Air Act (``CAA'' or ``the Act'').

DATES: Petitions for review must be filed by October 6, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2013-0491. All documents relied upon in making this 
decision, including those submitted to EPA by CARB, are contained in 
the public docket. 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, 1301 Constitution Avenue NW., Washington, DC. The 
Public Reading Room is open to the public on all federal government 
working 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 email address for the Air and Radiation Docket is: [email protected], 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 at http://www.regulations.gov. After opening the 
www.regulations.gov Web site, enter EPA-HQ-OAR-2013-0491 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 
Confidential Business Information (``CBI'') or other information whose 
disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality (``OTAQ'') maintains 
a Web page that contains general information on its review of 
California waiver and authorization requests. Included on that page are 
links to prior waiver Federal Register notices, some of which are cited 
in today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Read, Office of Transportation 
and Air Quality, U.S. Environmental Protection Agency, 2565 Plymouth 
Rd., Ann Arbor, MI 48105. Telephone: (734) 214-4367. Fax: (734) 214-
4212. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    By letter dated June 20, 2013, CARB requested that EPA grant a 
waiver of preemption pursuant to section 209(b) of the CAA for the 
California HD GHG Regulations applicable to new 2011 through 2013 model 
year (MY) Class 8 tractors equipped with integrated sleeper berths 
(sleeper-cab tractors) and to new 2011 and subsequent MY dry-van and 
refrigerated-van trailers that are pulled by such tractors on 
California highways. The HD GHG Regulations are set forth at title 17, 
California Code of Regulations (CCR) sections 95300 through 95312.\1\ 
The HD GHG

[[Page 46257]]

Regulations apply to new and in-use 53-foot or longer trailers and the 
new and in-use tractors that pull them.\2\ However, California 
expressly limited the scope of its waiver request to just new MY2011-
MY2013 tractors and MY2011 and later trailers, as described above, 
``that together are considered to operate as an integrated vehicle.'' 
\3\
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    \1\ Please note that, as used herein, the term ``HD GHG 
Regulations'' encompasses all of 17 CCR 95300 through 95312, thus 
including provisions whose scope may apply to products beyond 
California's waiver request. EPA will clarify when statements herein 
apply exclusively to provisions that are included in the waiver 
request, and not also to the HD GHG Regulations more generally.
    \2\ 17 CCR Sec. Sec.  95301(a)(1) and 95302(a)(28).
    \3\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 2. California's waiver request does 
not include California's more recent action to harmonize its HD GHG 
Regulations with EPA's HD GHG rule beginning MY 2014.
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    CARB did not include the full suite of HD GHG Regulations in its 
waiver request, nor did it include emergency, temporary amendments to 
the HD GHG Regulations that CARB adopted in 2012.\4\
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    \4\ Id. at 8.
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    CARB's June 20, 2013 submission provides analysis and evidence to 
support its finding that the HD GHG Regulations satisfy the CAA section 
209(b) criteria and that a waiver of preemption should be granted.
    The request notes that CARB promulgated the HD GHG Regulations in 
response to the California Global Warming Solutions Act of 2006 (AB 
32).\5\ That legislation directs CARB to implement ``discrete early 
action GHG emission reduction measures'' to achieve cost-effective 
reductions in GHG emissions. The resulting HD GHG Regulations are 
designed to reduce GHG emissions by, inter alia, requiring certain 
tractors and semitrailers on California highways to employ aerodynamic 
technologies and low-rolling-resistance tires. CARB determined that 
aerodynamic and other efficiency upgrades would yield the greatest GHG 
benefits when installed on vehicles that operate frequently at highway 
speeds. The HD GHG Regulations therefore exempt certain types of 
tractors and trailers that CARB deemed to be less likely to travel at 
highway speeds.\6\
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    \5\ California Global Warming Solutions Act of 2006, Assembly 
Bill 32, Stats. 2006, Chapter 488.
    \6\ 17 CCR Sec.  95301(b), (c). Exemptions include local-haul 
and short-haul tractors and trailers, drayage tractors and trailers, 
storage trailers, empty trailers, drop-frame trailers, chassis 
trailers, curtain-side trailers, livestock trailers, refuse 
trailers, and box-type trailers that are less than 53 feet in 
length.
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    For vehicles that are not exempted, the HD GHG Regulations 
incorporate elements of EPA's SmartWay[supreg] Program,\7\ in effect 
mandating use of technologies that fleets may adopt voluntarily to 
achieve SmartWay designation.\8\ Specifically, the HD GHG Regulations 
subject to this waiver request require new 2011 and subsequent MY 
sleeper-cab tractors \9\ that haul 53-foot or longer box-type trailers 
on California highways to be SmartWay certified \10\ and to use 
SmartWay verified tires beginning January 1, 2010.\11\ Likewise, new 
2011 and subsequent MY dry-van and refrigerated-van trailers are also 
required to be SmartWay certified (or equipped with specified SmartWay 
Verified Technologies) beginning January 1, 2010.\12\ The HD GHG 
Regulations apply to tractors and trailers when driven on a highway 
within California whether or not the equipment is registered in 
California.\13\
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    \7\ EPA's SmartWay Technology Program is a voluntary testing, 
verification, and designation program to help freight companies 
identify equipment, technologies and strategies that save fuel and 
lower emissions. See http://epa.gov/smartway/about/index.htm.
    \8\ These criteria for tractors include (i) a 2007 or subsequent 
MY federally certified engine, (ii) an integrated sleeper-cab high 
roof fairing, (iii) tractor-mounted side-fairing gap reducers, (iv) 
tractor fuel-tank side fairings, (v) aerodynamic bumpers and 
mirrors, (vi) low-rolling-resistance tires meeting SmartWay 
specifications, and (vii) optional systems for reducing extended 
engine idling. California Waiver Request Support Document, June 20, 
2013, EPA-HQ-OAR-2013-0491-0003, at 9.
    \9\ As noted above, this waiver request is applicable only to MY 
2011-2013 sleeper-cab tractors.
    \10\ California's term ``SmartWay certified'' is synonymous with 
EPA's term ``SmartWay designated'' herein.
    \11\ 17 CCR Sec.  95303(a).
    \12\ 17 CCR Sec.  95303(b). EPA SmartWay criteria for dry-van 
trailers include five possible configurations, all requiring low-
rolling-resistance tires and aerodynamic improvements (e.g., trailer 
side skirt fairings, trailer front-mounted gap reducer fairings, and 
trailer rear fairings). California Waiver Request Support Document, 
June 20, 2013, EPA-HQ-OAR-2013-0491-0003, at 11.
    \13\ 17 CCR Sec. Sec.  95301(a), 95302(a)(37), 95303.
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    CARB projects that the HD GHG Regulations overall will reduce GHG 
emissions in California by 0.7 million metric tons of carbon-dioxide 
equivalent emissions by 2020.\14\ CARB also projects that the HD GHG 
Regulations will reduce nitrogen oxide (NOX) emissions in 
California by 3.1 tons per day in 2014, thereby helping California meet 
national ambient air quality standards for particulate matter and 
ozone.\15\
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    \14\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 1.
    \15\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 1. The NOX reduction 
benefit is projected to fall to a 1 ton per day reduction in 
NOX emissions by 2020. Id.
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    CARB states that it formally adopted the HD GHG Regulations on 
October 23, 2009, and the HD GHG Regulations became operative under 
state law on January 1, 2010.\16\ Amendments to provide compliance 
flexibility (``the 2010 Amendments''), including limited five-day 
exemptions and an alternative compliance schedule, were adopted by CARB 
on October 26, 2011, and became operative on January 11, 2012.\17\
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    \16\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 4.
    \17\ Id. at 7.
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II. Principles Governing This Review

A. Scope of Review

    Section 209(a) of the CAA 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.\18\
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    \18\ CAA Sec.  209(a). 42 U.S.C. 7543(a).

    Section 209(b)(1) of the Act requires the Administrator, after an 
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 its state standards will be, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards.\19\ However, no such waiver shall be 
granted if the Administrator finds that: (A) The protectiveness 
determination of the state is arbitrary and capricious; (B) the state 
does not need such state standards to meet compelling and extraordinary 
conditions; or (C) such state standards and accompanying enforcement 
procedures are not consistent with section 202(a) of the Act.\20\
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    \19\ CAA Sec.  209(b)(1). 42 U.S.C. 7543(b)(1). California is 
the only state that meets section 209(b)(1)'s requirement for 
obtaining a waiver. See S. Rep. No. 90-403 at 632 (1967).
    \20\ CAA Sec.  209(b)(1). 42 U.S.C. 7543(b)(1).
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    Key principles governing this review are that EPA should limit its 
inquiry to the specific findings identified in section 209(b)(1) of the 
Clean Air Act, and that EPA will give substantial deference to the 
policy judgments California has made in adopting its regulations. In 
previous waiver decisions, EPA has stated that Congress intended the 
Agency's review of California's decision-making to be narrow. EPA has 
rejected arguments that

[[Page 46258]]

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are not specified in the statute as grounds for denying a waiver:

``The law makes it clear that the waiver requests cannot be denied 
unless the specific findings designated in the statute can properly 
be made. The issue of whether a proposed California requirement is 
likely to result in only marginal improvement in California air 
quality not commensurate with its costs or is otherwise an arguably 
unwise exercise of regulatory power is not legally pertinent to my 
decision under section 209, so long as the California requirement is 
consistent with section 202(a) and is more stringent than applicable 
Federal requirements in the sense that it may result in some further 
reduction in air pollution in California.'' \21\
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    \21\ ``Waiver of Application of Clean Air Act to California 
State Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more 
stringent standard expressed here, in 1971, was superseded by the 
1977 amendments to section 209, which established that California 
must determine that its standards are, in the aggregate, at least as 
protective of public health and welfare as applicable federal 
standards.

    This principle of narrow EPA review has been upheld by the U.S. 
Court of Appeals for the District of Columbia Circuit.\22\ Thus, EPA's 
consideration of all the evidence submitted concerning a waiver 
decision is circumscribed by its relevance to those questions that may 
be considered under section 209(b)(1).
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    \22\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 
1095 (D.C. Cir. 1979) (``MEMA I'').
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B. Burden and Standard of Proof

    As the U.S. Court of Appeals for the D.C. Circuit has made clear in 
MEMA I, opponents of a waiver request by California bear the burden of 
showing that the statutory criteria for a denial of the request have 
been met:

``[T]he language of the statute and its legislative history indicate 
that California's regulations, and California's determinations that 
they must comply with the statute, when presented to the 
Administrator are presumed to satisfy the waiver requirements and 
that the burden of proving otherwise is on whoever attacks them. 
California must present its regulations and findings at the hearing 
and thereafter the parties opposing the waiver request bear the 
burden of persuading the Administrator that the waiver request 
should be denied.'' \23\
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    \23\ MEMA I, note 19, at 1121.

The Administrator's burden, on the other hand, is to make a reasonable 
evaluation of the information in the record in coming to the waiver 
decision. As the court in MEMA I stated: ``here, too, if the 
Administrator ignores evidence demonstrating that the waiver should not 
be granted, or if he seeks to overcome that evidence with unsupported 
assumptions of his own, he runs the risk of having his waiver decision 
set aside as `arbitrary and capricious.' '' \24\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \25\
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    \24\ Id. at 1126.
    \25\ Id. at 1126.
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    With regard to the standard of proof, the court in MEMA I explained 
that the Administrator's role in a section 209 proceeding is to:

``[. . .]consider all evidence that passes the threshold test of 
materiality and . . . thereafter assess such material evidence 
against a standard of proof to determine whether the parties 
favoring a denial of the waiver have shown that the factual 
circumstances exist in which Congress intended a denial of the 
waiver.'' \26\
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    \26\ Id. at 1122.

In that decision, the court considered the standards of proof under 
section 209 for the two findings related to granting a waiver for an 
``accompanying enforcement procedure.'' Those findings involve: (1) 
Whether the enforcement procedures impact California's prior 
protectiveness determination for the associated standards, and (2) 
whether the procedures are consistent with section 202(a). The 
principles set forth by the court, however, are similarly applicable to 
an EPA review of a request for a waiver of preemption for a standard. 
The court instructed that ``the standard of proof must take account of 
the nature of the risk of error involved in any given decision, and it 
therefore varies with the finding involved. We need not decide how this 
standard operates in every waiver decision.'' \27\
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    \27\ Id.
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    With regard to the protectiveness finding, the court upheld the 
Administrator's position that, to deny a waiver, there must be ``clear 
and compelling evidence'' to show that proposed enforcement procedures 
undermine the protectiveness of California's standards.\28\ The court 
noted that this standard of proof also accords with the congressional 
intent to provide California with the broadest possible discretion in 
setting regulations it finds protective of the public health and 
welfare.\29\
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    \28\ Id.
    \29\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all proceedings, but found 
that the opponents of the waiver were unable to meet their burden of 
proof even if the standard were a mere preponderance of the evidence. 
Although MEMA I did not explicitly consider the standards of proof 
under section 209 concerning a waiver request for ``standards,'' as 
compared to a waiver request for accompanying enforcement procedures, 
there is nothing in the opinion to suggest that the court's analysis 
would not apply with equal force to such determinations. EPA's past 
waiver decisions have consistently made clear that: ``[E]ven in the two 
areas concededly reserved for Federal judgment by this legislation--the 
existence of `compelling and extraordinary' conditions and whether the 
standards are technologically feasible--Congress intended that the 
standards of EPA review of the State decision to be a narrow one.'' 
\30\
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    \30\ See, e.g., ``California State Motor Vehicle Pollution 
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 
28, 1975), at 23103.
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C. Deference to California

    In previous waiver decisions, EPA has recognized that the intent of 
Congress in creating a limited review based on specifically listed 
criteria was to ensure that the federal government did not second-guess 
state policy choices. As the Agency explained in one prior waiver 
decision:

``It is worth noting . . . I would feel constrained to approve a 
California approach to the problem which I might also feel unable to 
adopt at the federal level in my own capacity as a regulator. . . . 
Since a balancing of [ ] risks and costs against the potential 
benefits from reduced emissions is a central policy decision for any 
regulatory agency under the statutory scheme outlined above, I 
believe I am required to give very substantial deference to 
California's judgments on this score.'' \31\
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    \31\ 40 FR 23102, 23103-04 (May 28, 1975).

    Similarly, EPA has stated that the text, structure, and history of 
the California waiver provision clearly indicate both a congressional 
intent and appropriate EPA practice of leaving the decision on 
``ambiguous and controversial matters of public policy'' to 
California's judgment.\32\ This interpretation is supported by relevant 
discussion in the House Committee Report for the 1977 amendments to the 
CAA. Congress had the opportunity through the 1977 amendments to 
restrict the preexisting waiver provision, but elected instead to 
expand California's flexibility to adopt a complete program of motor 
vehicle emission controls. The report explains that the amendment is 
intended to ratify and strengthen the preexisting California waiver 
provision and to affirm the underlying intent of that provision, that 
is, to afford California the broadest possible discretion in selecting 
the best means to

[[Page 46259]]

protect the health of its citizens and the public welfare.\33\
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    \32\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13, 
1993).
    \33\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th 
Cong., 1st Sess. 301-02 (1977)).
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D. EPA's Administrative Process in Consideration of California's 
Request

    On August 21, 2013, EPA published a notice of opportunity for 
public hearing and comment on California's waiver request. EPA 
scheduled a public hearing concerning CARB's request for September 6, 
2013, and asked for written comments to be submitted by October 18, 
2013.\34\ EPA's notice of CARB's request invited public comment on the 
following issues:
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    \34\ 78 FR 51724 (August 21, 2013).

``Whether (a) California's determination that its motor vehicle 
emission standards are, in the aggregate, at least as protective of 
public health and welfare as applicable federal standards is 
arbitrary and capricious, (b) California needs such standards to 
meet compelling and extraordinary conditions, and (c) California's 
standards and accompanying enforcement procedures are consistent 
with section 202(a) of the Clean Air Act.'' \35\
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    \35\ 78 FR 51725 (August 21, 2013).

    EPA received no requests for a public hearing, so EPA did not hold 
a hearing. In response to the request for comments, EPA received 
comments from the California Construction Trucking Association 
(``CCTA''),\36\ the Owner-Operated Independent Drivers Association, 
Inc. (OOIDA),\37\ the California Trucking Association (CTA),\38\ and 
American Trucking Associations, Inc. (ATA).\39\ EPA also received an 
additional submission from CARB.\40\
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    \36\ CCTA comments are at EPA-HQ-OAR-2013-0491-0051.
    \37\ OOIDA comments are at EPA-HQ-OAR-2013-0491-0053.
    \38\ CTA comments are at EPA-HQ-OAR-2013-0491-0052.
    \39\ ATA comments are at EPA-HQ-OAR-2013-0491-0050.
    \40\ CARB supplemental comments are at EPA-HQ-OAR-2013-0491-
0054.
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III. Discussion

    As discussed above, California's HD GHG Regulations apply to 
trailers as well as to tractors. The inclusion of trailers in the HD 
GHG Regulations led to comments raising the question of whether 
California's HD GHG trailer regulations are ``standards relating to the 
control of emissions from new motor vehicles or new motor vehicle 
engines'' and thus, subject to CAA preemption under section 209(a) and 
EPA waiver review under section 209(b)(1). As a result, before 
proceeding to a discussion on the merits of the waiver request, the 
Agency will first address the threshold question of whether the trailer 
regulations are indeed preempted and subject to EPA waiver review.

A. Whether Regulation of GHG Emissions Associated With Trailer Use 
Relates to the Control of Emissions From New Motor Vehicles

    Section 209(a) of the CAA only applies to states' efforts to 
``adopt or attempt to enforce any standard relating to the control of 
emissions from new motor vehicles or new motor vehicle engines.'' \41\ 
Thus, if a California regulation (in this case the regulation of 
greenhouse gas emissions associated with trailers) does not relate to 
the control of emissions from new motor vehicles or new motor vehicle 
engines, there would be no preemption under section 209(a), in which 
case no waiver is necessary under section 209(b) for California to 
enforce its regulation. Conversely, a waiver would be necessary and a 
waiver review appropriate for any California regulation that sets forth 
any standard relating to the control of emissions from new motor 
vehicles or new motor vehicle engines. Therefore, as a threshold issue, 
the Agency first examines whether the HD GHG Regulations, as applied to 
the reduction of emissions associated with trailer use, relate to the 
control of emissions from new motor vehicles or new motor vehicle 
engines, as defined and applied under the CAA.
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    \41\ 42 U.S.C. 7543(a).
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    EPA received comments from CCTA and OOIDA arguing that trailers are 
not by themselves ``motor vehicles'' and do not by themselves produce 
emissions, and therefore the HD GHG Regulations for trailers are not 
related to the control of emissions from new motor vehicles.\42\ If 
this argument were correct, then California would not need a waiver of 
preemption under section 209(b), as discussed above. We note that both 
CCTA and OOIDA make this point as part of arguments that assume that 
CARB's authority to regulate comes from CAA section 209, and that CARB 
has no authority to regulate trailers apart from the CAA. However, 
CARB's authority to regulate comes from California state law.\43\ As 
noted in MEMA I, the U.S. Court of Appeals for the District of Columbia 
Circuit, in reviewing the legislative history of section 209, noted 
that California had regulated motor vehicle pollution well before any 
federal emission standards were promulgated.\44\ Section 209 only 
relates to the potential Clean Air Act preemption of California's laws 
on the issue. EPA did not receive comment indicating why a regulation 
that is not preempted by section 209(a) should be disallowed by EPA. 
Certainly, for the purposes of this proceeding, if a state regulation 
is not prohibited under section 209(a), then a waiver of preemption is 
unnecessary under section 209(b).
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    \42\ CCTA, at 2; OOIDA, at 4.
    \43\ See Response to Comments Submitted by Parties Opposing 
California's Request for Waiver for California's Tractor-Trailer 
Greenhouse Gas Regulation Pursuant to Clean Air Act Section 209(b), 
December 6, 2013, EPA-HQ-OAR-2013-0491-0054 (``CARB's Supplemental 
Comment''), at 2 (``CARB's authority to regulate new 53-foot and 
longer box-type trailers pulled by tractors is derived from state 
law, primarily, the California Global Warming Solutions Act of 2006. 
. .'')
    \44\ MEMA I at 1110-1111 (``The history of congressional 
consideration of the California waiver provision, from its original 
enactment up through 1977, indicates that Congress intended the 
State to continue and expand its pioneering efforts at adopting and 
enforcing motor vehicle emission standards. . . .'') (Emphasis 
added).
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    CARB's waiver request did not address the statutory interpretation 
of the CAA definition of ``motor vehicle,'' or specifically, whether 
that would include trailers. CARB nevertheless requested a waiver for 
the HD GHG Regulations (including the trailer provisions), stating that 
its request ``is consistent with EPA's statements that trailers affect 
the aerodynamic drag, rolling resistance, and overall weight of 
combination tractor-trailers.'' \45\ In addition, CARB notes that EPA 
had found that addressing GHG emissions from heavy-duty trucks requires 
a focus on the entire vehicle, and that trailers impact the carbon 
dioxide emissions from combination tractors.\46\
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    \45\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 2 n.4.
    \46\ CARB's Supplemental Comment, at 3-4, citing 75 FR 74152, 
74159-160, 74346 (November 30, 2010) and 76 FR 57106, 57362 
(September 15, 2011).
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    The CAA defines ``motor vehicle'' as ``any self-propelled vehicle 
designed for transporting persons or property on a street or highway.'' 
\47\ The commenters note that a trailer by itself is not ``self-
propelled.'' They claim that as a result, a trailer does not constitute 
a ``motor vehicle'' under the Act. EPA disagrees. Another evident way 
to view the issue is that the heavy-duty vehicles subject to this 
waiver discussion are comprised of two major components: The tractor 
and the trailer. The vehicle consists of these two detachable parts. 
The trailer's sole purpose is to serve as the cargo-hauling part of the 
vehicle. Without the tractor, the trailer cannot transport property; 
however, the tractor is also incomplete without the trailer. The motor 
vehicle needs both parts to accomplish its fully intended use.

[[Page 46260]]

Connected together, a tractor and trailer constitute ``a self-propelled 
vehicle designed for transporting persons or property on a street or 
highway,'' and thus meet the definition of ``motor vehicle'' under the 
Act.
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    \47\ 42 U.S.C. 7550(2).
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    This analysis is consistent with definitions in the federal 
regulations issued under the Act at 40 CFR 86.1803.01, where a heavy-
duty vehicle ``that has the primary load carrying device or container 
attached'' is referred to as a ``[c]omplete heavy-duty vehicle,'' while 
a heavy-duty vehicle or truck ``which does not have the primary load 
carrying device or container attached'' is referred to as an 
``[i]ncomplete heavy-duty vehicle'' or ``[i]ncomplete truck.'' \48\ The 
trailers covered by California's HD GHG Regulations here are properly 
considered ``the primary load carrying device or container'' for the 
heavy-duty vehicles to which they become attached for use. Therefore, 
such trailers are implicitly part of a ``complete heavy-duty vehicle,'' 
and thus part of a ``motor vehicle.''
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    \48\ 40 CFR 86.1803.01 ``Complete heavy-duty vehicle means any 
Otto-cycle heavy-duty vehicle of 14,000 pounds Gross Vehicle Weight 
Rating or less that has the primary load carrying device or 
container attached at the time the vehicle leaves the control of the 
manufacturer of the engine.'' . . . ``Incomplete heavy-duty vehicle 
means any heavy-duty vehicle which does not have the primary load 
carrying device or container attached.'' . . . ``Incomplete truck 
means any truck which does not have the primary load carrying device 
or container attached.''
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    Moreover, it is important to remember that the preemption language 
in section 209 does not apply to ``motor vehicles,'' but to ``standards 
relating to the control of emissions from new motor vehicles or new 
motor vehicle engines.'' As EPA discussed in its regulation of 
greenhouse gas emissions from heavy-duty engines, improvement of 
trailer aerodynamic properties will result in GHG emission reductions 
from the engine of the vehicle. Likewise, the efficiency of the 
trailer's tires affects GHG emission levels.\49\ It is therefore 
logical to treat emission-related regulations directed at trailers 
pulled by tractors as regulations related to emissions of motor 
vehicles under the CAA. In the same way, EPA has applied its 
regulations to other equipment that is known to be generally part of a 
motor vehicle and to affect the emissions of the motor vehicle, but is 
not part of the engine system or powertrain itself. For example, 
emissions testing provisions under the federal rules controlling GHG 
emissions from heavy-duty vehicles and engines consider the test 
vehicle's tires in determining the vehicle's emissions test results. 
Light-duty vehicle roof racks and side mirrors (which affect vehicle 
aerodynamics, and hence GHG emissions) are additional examples from the 
EPA light-duty vehicle rules. Similarly, under 40 CFR 86.1832-01, 
optional equipment that exceeds a certain minimum weight is counted in 
the curb weight for a motor vehicle if it is expected to be attached to 
at least a certain minimum percentage of the car line. Like trailers, 
these parts of a motor vehicle do not generally produce emissions by 
themselves, but they are nevertheless considered in determining 
emissions related to motor vehicles under the CAA.
---------------------------------------------------------------------------

    \49\ See 75 FR 74152, 74347-49 (Nov. 30, 2010); 76 FR 57106, 
57362 (Sept. 15, 2011). Weight reduction from trailers affords 
another opportunity for GHG reductions. Id.
---------------------------------------------------------------------------

    In addition, we note that the California program regulates 
emissions associated with trailers when the trailer is operated as part 
of the vehicle. The reason the trailers are regulated is because of 
their effect on the vehicle's emissions. CCTA, in its comments, does 
not dispute that a trailer affects the GHG emissions of the tractor 
pulling the trailer or that the HD GHG Regulations as to trailers are 
intended to create emissions reductions from new motor vehicles that 
include those trailers.\50\ In summary, California's HD GHG Regulations 
clearly relate to the control of emissions from new motor vehicles and 
are thus subject to the CAA preemption and waiver requirements under 
section 209 of the Act.
---------------------------------------------------------------------------

    \50\ CCTA, at 2.
---------------------------------------------------------------------------

    Moreover, as noted above, even under the commenters' argument that 
emission standards applicable to trailers are not standards related to 
emissions from motor vehicles, the effect of that argument would be 
that California regulations affecting trailers would not be preempted 
under section 209(a) of the Act, and thus would not need a waiver under 
section 209(b) of the Act to be enforced.

B. California's Protectiveness Determination

    Section 209(b)(1)(A) of the Act sets forth the first of the three 
criteria governing a waiver request--whether California was arbitrary 
and capricious in its determination that its state standards will be, 
in the aggregate, at least as protective of public health and welfare 
as applicable federal standards. Section 209(b)(1)(A) of the CAA 
requires EPA to deny a waiver if the Administrator finds that 
California's protectiveness determination was arbitrary and capricious. 
However, a finding that California's determination was arbitrary and 
capricious must be based upon clear and convincing evidence that 
California's finding was unreasonable.\51\
---------------------------------------------------------------------------

    \51\ MEMA I, 627 F.2d at 1122, 1124 (``Once California has come 
forward with a finding that the procedures it seeks to adopt will 
not undermine the protectiveness of its standards, parties opposing 
the waiver request must show that this finding is unreasonable.''); 
see also 78 FR 2112, at 2121 (Jan. 9, 2013).
---------------------------------------------------------------------------

    CARB did make a protectiveness determination in adopting the HD GHG 
Regulations, and found that the HD GHG Regulations would not cause 
California motor vehicle emissions standards, in the aggregate, to be 
less protective of the public health and welfare than applicable 
federal standards.\52\ CARB noted that EPA has not issued regulations 
to control GHG emissions from medium and heavy-duty on-road vehicles 
for MYs 2011 through 2013, nor has EPA issued regulations to control 
GHG emissions relating to trailer usage. Thus, CARB concluded that 
California's 2011 through 2013 MY standards for sleeper-cab tractors 
and California's standards for MY 2011 and subsequent trailers are 
clearly, in the aggregate, at least as protective of the public health 
and welfare as applicable federal standards.\53\
---------------------------------------------------------------------------

    \52\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 16, citing Board Resolutions 08-44 and 
10-46.
    \53\ Id.
---------------------------------------------------------------------------

    Under CAA section 209(b)(2), ``[i]f each State standard is at least 
as stringent as the comparable applicable Federal standard, such State 
standard shall be deemed to be at least as protective of health and 
welfare as such Federal standards for purposes of [209(b)(1)].'' \54\ 
Where, as here, there are no federal standards directly comparable to 
the specific California standards under review,\55\ the analysis then 
occurs against the backdrop of previous waivers, which have determined 
that the California program overall was at least as protective as the 
federal program.\56\ Consistent with this precedent, we cannot find 
that the HD GHG Regulations for which California is now requesting a 
waiver diminish the protectiveness of the overall California program.
---------------------------------------------------------------------------

    \54\ CAA Sec.  209(b)(2); see also 78 FR 2112, at 2121-22 (Jan. 
9, 2013).
    \55\ As mentioned, while comparable federal standards for 
tractors will apply beginning MY 2014, there are no comparable 
standards for MYs 2011-2013 and no comparable federal standards for 
trailers.
    \56\ 78 FR 2112, at 2122 n. 52 (Jan. 9, 2013); see also 71 FR 
78190 (December 21, 2006).
---------------------------------------------------------------------------

    EPA received no comments or evidence suggesting that CARB's 
protectiveness determination, under EPA's traditional analysis, is 
arbitrary and capricious. In particular, no commenter disputes that 
California

[[Page 46261]]

standards, whether looking at the particular California standards being 
analyzed in this proceeding or the entire suite of California standards 
applicable to heavy-duty motor vehicles and engines, are at least as 
stringent, in the aggregate, as applicable federal standards.
    CTA did note that EPA provided policy reasons for not regulating 
trailers in the first phase of EPA's Heavy-Duty National Program.\57\ 
However, EPA's policy discussion cited by CTA does not indicate 
regulation of trailers was not protective of public health. As noted 
above, EPA acknowledged that regulation of trailers could have an 
effect on emissions.
---------------------------------------------------------------------------

    \57\ CTA, at 3; ``Greenhouse Gas Emissions Standards and Fuel 
Efficiency Standards for Medium- and Heavy-Duty Engines and 
Vehicles,'' 76 FR 57106 (September 15, 2011) (``Heavy-Duty National 
Program'').
---------------------------------------------------------------------------

    CTA commented that CARB's protectiveness conclusion was not 
rationally based on any empirical evidence demonstrating benefits from 
the HD GHG Regulations.\58\ CTA argues that the actual emission 
reduction benefits of the HD GHG Regulations are much lower than CARB 
claimed, although CTA acknowledges that the HD GHG Regulations do 
provide at least some emissions reduction benefit in the aggregate.\59\
---------------------------------------------------------------------------

    \58\ CTA, at 3-4.
    \59\ CTA, at 4 and at Attachment B.
---------------------------------------------------------------------------

    However, this comment does not take into account that the 
protectiveness criterion does not require EPA to determine whether 
California's projections of emission reductions are correct in all of 
its aspects, but rather whether CARB's protectiveness determination is 
arbitrary and capricious. EPA need not confirm the precise accuracy of 
California's projections of emission benefits to find that its 
protectiveness determination is not arbitrary or capricious. This has 
not been EPA's practice in prior waiver decisions. As previously 
explained, the text, structure, and history of section 209(b)(1) 
clearly indicate both a congressional intent and appropriate EPA 
practice of leaving the decision on ``ambiguous and controversial 
matters of public policy'' to California's judgment.\60\ Thus, unless 
EPA finds California's protectiveness determination to be arbitrary and 
capricious, the state's determination that the HD GHG regulations 
provide an emissions reduction benefit that is at least equivalent to 
federal standards is sufficient.
---------------------------------------------------------------------------

    \60\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13, 
1993).
---------------------------------------------------------------------------

    Indeed, California standards are most clearly ``at least as 
protective'' when they are compared to the absence of federal emission 
standards.\61\ In the absence of EPA standards there is a clear 
rational basis for CARB's determination that its standards will be at 
least as protective of human health and welfare as applicable federal 
standards.
---------------------------------------------------------------------------

    \61\ 74 FR 32744, 32755 (July 8, 2009).
---------------------------------------------------------------------------

    Because the commenters have not presented evidence to show that 
CARB's protectiveness determination is arbitrary and capricious, EPA 
cannot find that California's protectiveness determination is arbitrary 
and capricious.

C. Whether the Standards are Necessary to Meet Compelling and 
Extraordinary Conditions

    Section 209(b)(1)(B) instructs that EPA cannot grant a waiver if 
the Agency finds that California ``does not need such California 
standards to meet compelling and extraordinary conditions.'' EPA's 
inquiry under this second criterion has traditionally been to determine 
whether California needs its own mobile source pollution program (i.e. 
set of standards) for the relevant class or category of vehicles or 
engines to meet compelling and extraordinary conditions, and not 
whether the specific standards that are the subject of the waiver 
request are necessary to meet such conditions.\62\ In recent waiver 
actions, EPA again examined the language of section 209(b)(1)(B) and 
reiterated this longstanding traditional interpretation as the better 
approach for analyzing the need for ``such State standards'' to meet 
``compelling and extraordinary conditions.'' \63\
---------------------------------------------------------------------------

    \62\ See California State Motor Vehicle Pollution Control 
Standards; Notice of Decision Granting a Waiver of Clean Air Act 
Preemption for California's 2009 and Subsequent Model Year 
Greenhouse Gas Emission Standards for New Motor Vehicles,'' 74 FR 
32744 (July 8, 2009), at 32761; see also ``California State Motor 
Vehicle Pollution Control Standards; Waiver of Federal Preemption 
Notice of Decision,'' 49 FR 18887 (May 3, 1984), at 18889-18890.
    \63\ See 78 FR 2112, at 2125-26 (Jan. 9, 2013) (``EPA does not 
look at whether the specific standards at issue are needed to meet 
compelling and extraordinary conditions related to that air 
pollutant.'' ; see also EPA's July 9, 2009 GHG Waiver Decision 
wherein EPA rejected the suggested interpretation of section 
209(b)(1)(B) as requiring a review of the specific need for 
California's new motor vehicle greenhouse gas emission standards as 
opposed to the traditional interpretation (need for the program as a 
whole) applied to local or regional air pollution problems.
---------------------------------------------------------------------------

    CARB determined in Resolutions 08-44 and 10-46 that California 
continues to need its own motor vehicle program to meet serious ongoing 
air pollution problems.\64\ CARB asserted that ``[t]he geographical and 
climatic conditions and the tremendous growth in vehicle population and 
use that moved Congress to authorize California to establish vehicle 
standards in 1967 still exist today . . . and therefore there can be no 
doubt of the continuing existence of compelling and extraordinary 
conditions justifying California's need for its own motor vehicle 
emissions control program.'' \65\ Specifically, CARB's Board noted 
``The proposed regulation is estimated to result in statewide 
reductions of oxides of nitrogen emissions of approximately 4.3 tons 
per day in 2014 and 1.4 tons per day in 2020. These reductions will 
help with progress toward attainment of National and State Ambient Air 
Quality Standards for particulate matter and ozone.'' \66\
---------------------------------------------------------------------------

    \64\ California Waiver Request Support Document, at 16-17.
    \65\ California Waiver Request Support Document, at 17.
    \66\ See CARB Resolution 08-44 at 5. These estimates were later 
reduced somewhat. See footnote 69 hereafter.
---------------------------------------------------------------------------

    There has been no evidence submitted to indicate that California's 
compelling and extraordinary conditions do not continue to exist. 
California, particularly the South Coast and San Joaquin Valley air 
basins, continues to experience some of the worst air quality in the 
nation and many areas in California continue to be in non-attainment 
with national ambient air quality standards for fine particulate matter 
and ozone.\67\ As California has previously stated, ``nothing in 
[California's unique geographic and climatic] conditions has changed to 
warrant a change in this determination.'' \68\
---------------------------------------------------------------------------

    \67\ 74 FR 32744, 32762-63 (July 8, 2009).
    \68\ 74 FR 32744, 32762 (July 8, 2009); 76 FR 77515, 77518 
(December 13, 2011).
---------------------------------------------------------------------------

    California projects reductions in NOX emissions of 3.1 
tons per day in 2014 and one ton per day in 2020 due to the HD GHG 
Regulations.\69\ California states that these emissions reductions will 
help California in its efforts to attain applicable air quality 
standards. California further projects that the HD GHG Regulations will 
reduce GHG emissions in California by approximately 0.7 million metric 
tons (MMT) of carbon dioxide equivalent emissions (CO2e) by 
2020.\70\
---------------------------------------------------------------------------

    \69\ California Waiver Request Support Document, at 1; see also 
CARB Staff Report: Initial Statement of Reasons for Proposed 
Rulemaking (ISOR), October 2008, at ES5 and 56 (initially projecting 
even higher CO2 and NOX emission reductions).
    \70\ California Waiver Request Support Document, at 1.
---------------------------------------------------------------------------

    Based on the record before us, EPA is unable to identify any change 
in

[[Page 46262]]

circumstances or evidence to suggest that the conditions that Congress 
identified as giving rise to serious air quality problems in California 
no longer exist. Therefore, EPA cannot deny the waiver based on EPA's 
traditional interpretation under this waiver prong.
    EPA received comment suggesting that the Agency's past actions 
suggest that there can be no ``need'' for CARB's trailer standards. 
Specifically, in one comment, CCTA argues that the EPA's ``cause or 
contribution finding,'' made at the same time as EPA's endangerment 
finding, concludes that current and projected concentrations of six key 
greenhouse gases in the atmosphere threaten the public health and 
welfare of current and future generations, but only included a 
definition of ``new motor vehicles and new motor vehicle engines'' and 
did not include new or newer trailers in the finding.\71\ While CCTA 
phrased its comment as an argument against a necessity determination, 
these issues are extraneous to EPA's evaluation of the request as 
dictated by section 209(b)(1)(B).\72\ First, as previously noted, the 
HD GHG Regulations relate to the control of emissions from new motor 
vehicles, and trailers are appropriately considered within that term. 
Therefore, CCTA's claim that EPA's cause or contribution finding 
excluded trailers is incorrect. Second, the HD GHG Regulations are 
promulgated under the authority of California state law, and are 
neither contingent on nor dependent upon EPA's endangerment 
finding.\73\ Finally, EPA's evaluation of whether California's 
standards are necessary to meet compelling and extraordinary conditions 
is not contingent on or directly related to EPA's cause or contribution 
finding, which was a completely different determination than whether 
California needs its mobile source pollution program to meet compelling 
and extraordinary conditions in California.
---------------------------------------------------------------------------

    \71\ CCTA, at 6. As background, on December 7, 2009 the EPA 
Administrator made two distinct findings regarding greenhouse gases 
under section 202(a) of the Clean Air Act. These findings were 
published at 74 FR 66496 (December 15, 2009). EPA noted that the 
transportation sources covered under section 202(a) (the section 
under which the two findings occur) include passenger cars, light- 
and heavy-duty trucks, buses, and motorcycles.
    \72\ Although CCTA did not suggest that a supposed lack of an 
endangerment and/or cause or contribution finding regarding trailers 
causes CARB's Regulations to be inconsistent with section 202(a) 
(and thus a waiver should not be granted under the third waiver 
prong), EPA nevertheless incorporates the reasoning set forth in the 
2009 light-duty motor vehicle greenhouse gas emission waiver at 74 
FR 32744, 32778-32780 (July 8, 2009).
    \73\ CCTA acknowledges that the California program to reduce 
emissions from motor vehicles in fact predates the CAA. Here, 
California's HD GHG tractor-trailer regulations are particularly 
authorized under the California Global Warming Solutions Act of 2006 
(AB 32), codified at California Health and Safety Code section 
38560.5. See CARB Supplemental Comments, EPA-HQ-OAR-2013-0491-0054, 
at 2-3.
---------------------------------------------------------------------------

    CTA, also commenting on protectiveness, argues that California has 
not quantified how the HD GHG Regulations would ``contribute to 
attainment of ozone or fine particle standards in any meaningful way.'' 
\74\ But nothing in section 209(b)(1)(B) calls for California to 
quantify specifically how its regulations would affect attainment of 
the national ambient air quality standards in the state. As noted 
above, California did quantify the projected reductions in 
emissions.\75\ California further states that these emissions 
reductions will help California in its efforts to attain national and 
California air quality standards for particulate matter and ozone. As 
stated before, the relevant question is whether California needs its 
own motor vehicle pollution program to meet compelling and 
extraordinary conditions, and not whether the specific standards that 
are the subject of this waiver request are necessary to meet such 
conditions.\76\
---------------------------------------------------------------------------

    \74\ CTA, at 2. CTA's argument is perhaps more relevant to the 
``protectiveness'' criterion discussed above, but CTA nevertheless 
raised the issue under this prong instead, as to whether 
California's program is necessary to meet compelling and 
extraordinary conditions.
    \75\ California Waiver Request Support Document, at 1; see also 
CARB Staff Report: Initial Statement of Reasons for Proposed 
Rulemaking (ISOR), October 2008, at ES5 and 56 (initially projecting 
even higher CO2 and NOX emission reductions).
    \76\ See 78 FR 2112, at 2125-26 (Jan. 9, 2013) (``EPA does not 
look at whether the specific standards at issue are needed to meet 
compelling and extraordinary conditions related to that air 
pollutant.''); see also EPA's July 9, 2009 GHG Waiver Decision 
wherein EPA rejected the suggested interpretation of section 
209(b)(1)(B) as requiring a review of the specific need for 
California's new motor vehicle greenhouse gas emission standards as 
opposed to the traditional interpretation (need for the program as a 
whole) applied to local or regional air pollution problems.
---------------------------------------------------------------------------

    In another comment, CCTA argues that since EPA and the National 
Highway Transportation Safety Administration (NHTSA) have embarked on 
the Heavy-Duty National Program to regulate GHG emissions from heavy-
duty vehicles, California's program is no longer necessary.\77\ 
However, as EPA has explained in previous decisions, the existence of a 
parallel or harmonized national program does not mean that California's 
program is no longer necessary.\78\ Furthermore, EPA's GHG regulations 
for heavy-duty vehicles apply to 2014 and later tractors. California's 
HD GHG Regulations, on the other hand, extend further than EPA's 
regulations to cover 2011 through 2013 tractors and also 2011 and later 
trailers. The California HD GHG Regulations apply earlier than the 
Heavy-Duty National Program, reflecting CARB's interest in further 
action to address California's ongoing air quality conditions. The CCTA 
presents no evidence that CARB's emissions regulation program is not 
necessary to address the ``compelling and extraordinary conditions'' 
underlying the state's air pollution problems.
---------------------------------------------------------------------------

    \77\ CCTA, at 6.
    \78\ See, e.g., California State Motor Vehicle Pollution Control 
Standards; Notice of Decision Granting a Waiver of Clean Air Act 
Preemption for California's 2009 and Subsequent Model Year 
Greenhouse Gas Emission Standards for New Motor Vehicles,'' 74 FR 
32744 (July 8, 2009) (granting waiver despite the fact that EPA and 
NHTSA had embarked on a parallel national program to reduce GHG 
emissions from light duty vehicles).
---------------------------------------------------------------------------

    In summary, EPA has not received any adverse comments suggesting 
that California no longer needs a separate motor vehicle emissions 
program to address the various conditions that led to serious and 
unique air pollution problems in California. Based on the record, EPA 
is unable to identify any change in circumstances or any evidence to 
suggest that the conditions that California identified as giving rise 
to serious air quality problems in California no longer exist. 
Therefore, EPA cannot deny the waiver request here based on this 
criterion.

D. Consistency With Section 202(a)

    For the third and final criterion, EPA evaluates the program for 
consistency with section 202(a) of the CAA. Under section 209(b)(1)(C) 
of the CAA, EPA must deny California's waiver request if EPA finds that 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a). Section 202(a) requires that 
regulations ``shall take effect after such period as the Administrator 
finds necessary to permit the development and application of the 
relevant technology, considering the cost of compliance within that 
time.''
    EPA has previously stated that the determination is limited to 
whether those opposed to the waiver have met their burden of 
establishing that California's standards are technologically 
infeasible, or that California's test procedures impose requirements 
inconsistent with the federal test procedure. Infeasibility is shown by 
demonstrating that there is inadequate lead time to permit the 
development of technology necessary to meet the HD GHG Regulations that 
are subject to the waiver request, giving appropriate consideration to 
the cost of

[[Page 46263]]

compliance within that time.\79\ California's accompanying enforcement 
procedures would also be inconsistent with section 202(a) if the 
federal and California test procedures conflicted, i.e., if 
manufacturers would be unable to meet both the California and federal 
test requirements with the same test vehicle.\80\
---------------------------------------------------------------------------

    \79\ See, e.g., 38 F.R 30136 (November 1, 1973) and 40 FR 30311 
(July 18, 1975).
    \80\ See, e.g., 43 FR 32182 (July 25, 1978).
---------------------------------------------------------------------------

    EPA has reviewed the information submitted to the record to 
determine whether the parties opposing this waiver request have met 
their burden to demonstrate that the HD GHG Regulations subject to the 
waiver request are not consistent with section 202(a). Regarding test 
procedure conflict, as CARB notes, there is no issue of test procedure 
inconsistency because there are no analogous federal standards or 
associated test procedures applicable to new 2011 through 2013 MY 
sleeper tractors and new 2011 and subsequent MY dry-van and 
refrigerated-van trailers that are pulled by such tractors.\81\ EPA has 
received no adverse comment or evidence of test procedure 
inconsistency. Therefore, EPA cannot deny the waiver on the grounds of 
test procedure inconsistency.
---------------------------------------------------------------------------

    \81\ California Waiver Request Support Document, at 22. EPA 
notes that California's trailer requirements are based on EPA's 
SmartWay program, including requiring implementation of EPA SmartWay 
verified technologies (or their equivalents). However, as mentioned 
above, EPA's SmartWay Program is a voluntary system, and does not 
involve any federal standards or test procedures that could be 
considered inconsistent with California's HD GHG Regulations.
---------------------------------------------------------------------------

    EPA did not receive comments arguing that the HD GHG Regulations 
were infeasible when reviewed purely as a matter of technology. The 
Agency did, however, receive comment arguing that the cost of 
compliance is excessive. In its comment, OOIDA states that the HD GHG 
Regulations impose large expenses on thousands of small and financially 
struggling carriers.\82\
---------------------------------------------------------------------------

    \82\ OOIDA, at 3-4.
---------------------------------------------------------------------------

    Regarding cost of compliance arguments such as OOIDA's, EPA's 
previous waiver decisions indicate that cost of compliance as it 
relates to lead time must be shown to be excessive in order to find 
that California's standards are inconsistent with section 202(a).\83\ 
In MEMA I, the court addressed the cost of compliance issue in 
reviewing a waiver decision. According to the court:
---------------------------------------------------------------------------

    \83\ See, e.g., 78 FR 2134 (Jan. 9, 2013), 47 FR 7306, 7309 
(Feb. 18, 1982), 43 FR 25735 (Jun. 17, 1978), and 46 FR 26371, 26373 
(May 12, 1981).

Section 202's cost of compliance concern, juxtaposed as it is with 
the requirement that the Administrator provide the requisite lead 
time to allow technological developments, refers to the economic 
costs of motor vehicle emission standards and accompanying 
enforcement procedures. See S. Rep. No. 192, 89th Cong., 1st Sass. 
5-8 (1965); H.R. Rep. No. 728 90th Cong., 1st Sass. 23 (1967), 
reprinted in U.S. Code Cong. & Admin. News 1967, p. 1938. It relates 
to the timing of a particular emission control regulation rather 
than to its social implications. Congress wanted to avoid undue 
economic disruption in the automotive manufacturing industry and 
also sought to avoid doubling or tripling the cost of motor vehicles 
to purchasers. It, therefore, requires that the emission control 
regulations be technologically feasible within economic parameters. 
Therein lies the intent of the cost of compliance requirement 
---------------------------------------------------------------------------
(emphasis added).

    OIDA does not submit sufficient evidence to meet the opponents' 
burden of proof to show that the costs of compliance with the HD GHG 
Regulations are so excessive as to constitute technological 
infeasibility. For tractors, CARB estimated the average incremental 
capital cost of compliance in 2008 to be $2,100 per tractor, which 
could be recovered within 1.0 to 1.5 years through fuel savings.\84\ 
OOIDA does not submit any evidence contrary to these estimates for 
tractors, and no evidence in the record refutes these estimates. 
Therefore, EPA cannot find that the costs of compliance have been shown 
to be excessive for tractors.
---------------------------------------------------------------------------

    \84\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 21.
---------------------------------------------------------------------------

    For trailers, OOIDA disagrees with CARB's estimate of total average 
cost of compliance. CARB calculated the average incremental cost of 
trailer compliance as $2,900 per trailer, plus an additional $125 
annually for maintenance and reporting costs.\85\ CARB estimated that 
the additional cost could be recovered within 18 months through reduced 
fuel consumption (or, alternatively, through commanding higher rates 
from freight carriers due to the improved fuel efficiency provided by 
the aerodynamic trailers).\86\ CARB's cost estimate has since decreased 
to an estimated $1,250 per trailer, which is expected to be recovered 
in 11 months, on average, through fuel savings.\87\ OOIDA, on the other 
hand, portrays the cost as $7,520-$9,325 per trailer,\88\ and says that 
CARB's projected payback is greatly overstated.\89\
---------------------------------------------------------------------------

    \85\ California Waiver Request Support Document, June 20, 2013, 
EPA-HQ-OAR-2013-0491-0003, at 24-25; see also CARB Staff Report: 
Initial Statement of Reasons for Proposed Rulemaking (ISOR), October 
2008, at 33-42, 60-62.
    \86\ California Waiver Request Support Document, at 25; ISOR, at 
42.
    \87\ ATA, at 5 (citing CARB estimates that were updated in 
2012).
    \88\ OOIDA, at 4.
    \89\ OOIDA, at 5, 10, 14.
---------------------------------------------------------------------------

    OOIDA does not provide evidence or data to support its higher cost 
estimates for trailers. Instead, OOIDA relies upon an incorrect 
portrayal of CARB's original estimates. OOIDA misstates CARB's cost 
estimates in two ways. First, OOIDA's estimate incorrectly assumes that 
a company must install all available types of trailer aerodynamic 
devices (i.e., front, side, and rear fairings) simultaneously to 
achieve compliance.\90\ However, this assumption overestimates likely 
costs since the CARB-mandated levels of performance can be attained 
with single devices or with paired combinations (e.g., front with side 
fairing, rear with side fairing, or front and large rear fairing).\91\ 
Second, OOIDA incorrectly counts a $2,800 incremental cost for a 
``SmartWay certified trailer'' as a separate and additional cost above 
the cost of the aerodynamic technologies used, when instead the cost is 
duplicative (i.e., the incremental cost for a SmartWay certified 
trailer includes the cost of the aerodynamic technologies).\92\ 
Adjusted for these differences, OOIDA's cost figures are in relative 
agreement with CARB's original cost projections (which CARB now 
estimates are even lower). Therefore, there is no evidence showing 
CARB's estimated cost of compliance for trailers to be excessive or 
infeasible.\93\
---------------------------------------------------------------------------

    \90\ Compare OOIDA, at 4, and California Waiver Request Support 
Document, June 20, 2013, EPA-HQ-OAR-2013-0491-0003, at 24-25; see 
also ISOR, at 20, 60, and CARB's Supplemental Comment, at 14.
    \91\ 17 C.C.R. Sec.  95303(b) (requiring 2011 and newer trailers 
to be either (i) a U.S. EPA Certified SmartWay Trailer or (ii) 
equipped with verified SmartWay tires plus any combination or 
aerodynamic technologies demonstrated to provide a specified level 
of fuel savings (4% for refrigerated trailers, and 5% for dry van 
trailers)). Specifications for EPA Certified SmartWay Trailer 
configurations generally have a gap reducer on the trailer front or 
tail, but not both. See U.S. EPA Designated SmartWay Mark: License 
Agreement, Technical Specification & Requirements, and Graphics 
Standards & Usage Guide for Tractor & Trailer Manufacturers, '' at 7 
(publication available at http://www.epa.gov/smartway/documents/technology/get-designated/420-B11-013.pdf).
    \92\ Compare OOIDA, at 4, and ISOR, at 33-42, 60-62; see also 
CARB's Supplemental Comment, at 14.
    \93\ California Waiver Request Support Document, at 24-25; ISOR, 
at 33-42, 60-62.
---------------------------------------------------------------------------

    OOIDA also submits various arguments about cost-effectiveness of 
the HD GHG Regulations, asserting that the costs of the HD GHG 
Regulations outweigh the emission benefits that CARB seeks to 
attain.\94\ OOIDA argues that the HD GHG Regulations are especially not 
cost-effective for trailers,

[[Page 46264]]

which OOIDA estimates are on the road only one-third as often as 
tractors, and for motor carriers who only occasionally make trips into 
California.\95\ OOIDA also notes that compliance with the HD GHG 
Regulations will have negative side effects. For example, OOIDA states 
that the required low-rolling-resistance (LRR) tires will have a 
shorter life span and be less safe than regular tires, causing 
increased traffic backups or use of tire chains (and thus increased 
fuel usage) in inclement weather. OOIDA also argues that the HD GHG 
Regulations will cause reduced freight capacity and revenue due to the 
added weight of the required aerodynamic equipment.\96\ OOIDA does not 
provide any supporting evidence to verify or quantify these potential 
additional costs. Finally, OOIDA and other commenters suggest that many 
tractors do not obtain the expected fuel savings due to application-
specific factors such as typical speeds and miles travelled.\97\ 
However, they have not provided any evidence supporting a significantly 
different average cost or payback time.
---------------------------------------------------------------------------

    \94\ OOIDA, at 4.
    \95\ OOIDA, at 5, 14.
    \96\ OOIDA, at 9-10.
    \97\ Id.
---------------------------------------------------------------------------

    CARB disputes OOIDA's assertions about shorter life spans or 
difficulties in inclement weather with LRR tires, stating that there is 
no evidence to support OOIDA's claims.\98\ CARB additionally states 
that reduced freight capacity due to weight of the aerodynamic 
equipment would be relatively insignificant for a heavy duty vehicle, 
with the average weight of a set of side skirts being between 150 and 
350 lbs.\99\
---------------------------------------------------------------------------

    \98\ CARB's Supplemental Comment, at 15-16.
    \99\ CARB's Supplemental Comment, at 16.
---------------------------------------------------------------------------

    In the context of a section 209(b) waiver review, EPA generally 
does not consider arguments that a regulation will result in only 
marginal air quality improvements, or that the expected air quality 
benefits will be outweighed by the costs, to be legally pertinent in 
evaluating cost-of-compliance.\100\ EPA has stated that ``[t]he 
appropriate level of cost-effectiveness is a policy decision of 
California,'' and EPA has historically deferred to California on these 
policy decisions.\101\ In addition, the costs of compliance with the HD 
Regulations are expected to be quickly recovered through fuel savings, 
as stated above.
---------------------------------------------------------------------------

    \100\ See 78 FR 2134 (Jan. 9, 2013).
    \101\ Id.
---------------------------------------------------------------------------

    In summary, the evidence that has been presented is insufficient to 
show that the HD GHG Regulations are technologically infeasible, 
considering costs of compliance. Indeed, such a finding is particularly 
unlikely where the average lifetime fuel savings created by compliance 
with the trailer regulations are expected to exceed the projected cost 
of compliance. In addition, no evidence has been presented showing that 
California's test procedures impose requirements inconsistent with 
federal test procedures. Therefore, the waiver opponents have presented 
no evidence demonstrating that the HD GHG Regulations are not 
consistent with Section 202(a).

E. Other Issues Raised Outside of the Scope of This Review

a. Constitutional Issues
    Some of the commenters, including the CCTA and OOIDA, argue that 
the HD GHG Regulations violate the commerce clause of the U.S. 
Constitution in that the HD GHG Regulations will have the effect of 
disproportionately and unfairly burdening out-of-state carriers.\102\ 
For example, CCTA argues that exemptions in the HD GHG Regulations for 
local-haul, drayage, and short-haul tractors and trailers will result 
in the exemption of most California in-state motor carriers, but 
virtually no out-of-state motor carriers. The comments further point 
out that the uneven impact does not correlate closely, if at all, with 
expected GHG emissions from the respective vehicles.\103\ OOIDA argues 
that the HD GHG Regulations unfairly burden out-of-state carriers who 
contribute less in emissions than exempted in-state motor 
carriers.\104\
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    \102\ CCTA, at 3-5; OOIDA, at 3, 10-17.
    \103\ CCTA, at 4-5; OOIDA, at 6-8. A disproportionate impact on 
out-of-state carriers is supported by CARB's data as well. See, 
e.g., ISOR, at 12-15 (projecting only 37,009 impacted MY 2010 
tractors and 92,523 impacted MY 2010 trailers in California, versus 
398,677 impacted MY 2010 tractors and 996,693 impacted MY 2010 
trailers outside of California, Thus, over 90% of the cost impact of 
California's Regulations is expected to occur outside of 
California.).
    \104\ OOIDA, at 3, 8.
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    However, commerce clause issues are beyond the scope of this 
review. As stated in MEMA I, ``[t]he waiver proceeding produces a forum 
ill-suited to the resolution of constitutional claims.'' \105\ 
Constitutional challenges to the HD GHG Regulations are more 
appropriately addressed by a legal challenge directly against the 
state. Moreover, EPA has consistently refrained from reviewing 
California's requests for waivers based on criteria that extend beyond 
those set forth in section 209(b) of the CAA,\106\ and courts have 
confirmed that EPA could not deny a waiver based on such additional 
criteria. ``If EPA concludes that California's standards [meet section 
209(b)], it is obligated to approve California's waiver application.'' 
\107\ Therefore, EPA cannot find this issue to be a proper ground for 
denial of California's waiver request.
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    \105\ MEMA I, supra, 627 F.2d at 1114-1120; See also Motor & 
Equipment Mfrs Ass'n v. Nichols, 142 F.3d 449, 462-463, 466-467 
(D.C. Cir. 1998).
    \106\ See 78 FR 2112, 2145 (January 9, 2013) and 74 FR 3030 
(January 16, 2009).
    \107\ Motor & Equipment Mfrs Ass'n v. Nichols, 142 F.3d 449 at 
463.
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b. Conflict With the Federal Aviation Administration Authorization Act
    CCTA and OOIDA also argue that the HD GHG Regulations violate the 
Federal Aviation Administration Authorization Act (FAAAA) \108\ on 
grounds that the requirements directly affect the prices, routes, and 
services of motor carriers.\109\ However, as discussed above, the 
criteria EPA must apply in deciding whether to grant or deny a waiver 
are specifically prescribed in section 209(b). Conflict with the FAAAA 
is not one of those criteria. Thus, questions about whether 
California's HD GHG Regulations comply with the FAAAA are outside of 
the proper scope of review under section 209(b) and EPA cannot deny a 
waiver request under section 209(b) based on this issue. Therefore, EPA 
cannot find this issue to be a proper ground for denial of California's 
waiver request.
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    \108\ CCTA, at 3; OOIDA, at 17.
    \109\ CCTA, at 3.
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c. Whether the HD GHG Regulations Improperly Regulate Fuel Economy
    CCTA argues that the California HD GHG Regulations impermissibly 
regulate fuel economy, and that the authority to regulate fuel economy 
resides solely with the National Highway Traffic Safety Administration 
(NHTSA).\110\ Again, however, as with the commerce clause and FAAAA 
issues, the Agency has previously determined that this issue is outside 
of the proper scope of review since it is not among the criteria listed 
under section 209(b).\111\ As a result, EPA cannot deny a waiver 
request based on whether California's HD GHG Regulations regulate fuel 
economy. Therefore, EPA cannot find this issue to be a proper

[[Page 46265]]

ground for denial of California's waiver request.
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    \110\ CCTA, at 2-3. Presumably, CTA is arguing that the Energy 
Policy and Conservation Act (EPCA) preempts the California HD GHG 
Regulations to the extent that they regulate fuel economy.
    \111\ 74 FR 32744, 32782-83 (July 8, 2009) (``As EPA has stated 
on numerous occasions, section 209(b) of the Clean Air Act limits 
our authority to deny California's requests for waivers to the three 
criteria therein, and EPA has refrained from denying California's 
request for waivers based on any other criteria.'').
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d. Effects of Delay and Previous Non-Enforcement of the Regulations
    Some commenters, including the ATA and CTA, criticize California 
for not enforcing the HD GHG Regulations for nearly four years after 
implementation. They argue that the non-enforcement has increased 
carrier costs and has disadvantaged carriers who attempted to comply 
with the HD GHG Regulations on time.\112\ ATA further asks EPA to 
consider in its waiver decisions whether California has adequate 
enforcement resources to actually achieve the projected levels of 
compliance and emissions benefits that CARB projects when it makes its 
waiver requests.\113\ California responds that CTA's and ATA's 
assertions on enforcement issues are not issues properly considered in 
this decision.\114\
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    \112\ ATA, at 6; CTA, at 2.
    \113\ ATA, at 6.
    \114\ CARB's Supplemental Comment, at 20.
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    As discussed above, EPA may only deny waiver requests that are 
based on criteria listed under section 209(b), and both delayed 
enforcement and previous non-enforcement of prior regulations are not 
among them. Thus, these issues are outside of the proper scope of 
review because they are not among the criteria listed under section 
209(b). Therefore, EPA cannot find these issues to be a proper ground 
for denial of California's waiver request.
e. Applicability of the Regulations to Already-Purchased Equipment
    Finally, ATA expresses concern about delays in the submission and 
approval of California waivers and authorizations, and ATA asks EPA to 
determine whether it is ``valid'' for the HD GHG Regulations to apply 
to equipment that has already been purchased and is in operation.'' 
\115\ However, ATA does not show how this concern is relevant to the 
criteria that EPA must evaluate related to California's request for a 
waiver under section 209(b).
---------------------------------------------------------------------------

    \115\ ATA, at 6.
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    As previously explained, EPA may only deny waiver requests that are 
based on criteria listed under section 209(b), and EPA has consistently 
refrained from reviewing California's requests for waivers and 
authorizations based on criteria that extend beyond the criteria of 
section 209(b) of the CAA. Therefore, EPA cannot find this issue to be 
a proper ground for denial of California's waiver request.

IV. Decision

    The Administrator has delegated the authority to grant California 
section 209(b) waivers to the Assistant Administrator for Air and 
Radiation. After evaluating CARB's amendments to the HD GHG Regulations 
described above and CARB's submissions for EPA review, EPA is hereby 
granting a waiver for California's Tractor-Trailer Greenhouse Gas 
Regulations (``HD GHG Regulations'') for new 2011 through 2013 MY Class 
8 tractors equipped with integrated sleeper berths (sleeper-cab 
tractors) and to new 2011 and subsequent MY dry-van and refrigerated-
van trailers that are pulled by such tractors on California highways.
    This decision will affect not only persons in California, but also 
manufacturers and operators nationwide who must comply with 
California's requirements. In addition, because other states may adopt 
California's standards for which a section 209(b) waiver has been 
granted under section 177 of the Act if certain criteria are met, this 
decision would also affect those states and those persons in such 
states. For these reasons, EPA determines and finds that this is a 
final action of national applicability, and also a final action of 
nationwide scope or effect for purposes of section 307(b)(1) of the 
Act. Pursuant to section 307(b)(1) of the 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 October 6, 2014. Judicial review of this final action may not 
be obtained in subsequent enforcement proceedings, pursuant to section 
307(b)(2) of the Act.

V. Statutory and Executive Order Reviews

    As with past waiver and authorization 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 30, 2014.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2014-18742 Filed 8-6-14; 8:45 am]
BILLING CODE 6560-50-P