[Federal Register Volume 81, Number 215 (Monday, November 7, 2016)]
[Notices]
[Pages 78149-78154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26865]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0699; FRL-9954-95-OAR]


California State Motor Vehicle Pollution Control Standards; 
Malfunction and Diagnostic System Requirements for 2010 and Subsequent 
Model Year Heavy-Duty Engines; 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's) request for a waiver of Clean 
Air Act preemption for amendments made in 2013 (``2013 HD OBD 
Amendments'') to its Malfunction and Diagnostic System Requirements for 
2010 and Subsequent Model Year Heavy-Duty Engine (HD OBD Requirements) 
and to its Enforcement of Malfunction and Diagnostic System 
Requirements for 2010 and Subsequent Model-Year Heavy-Duty Engines 
(``HD OBD Enforcement Regulation''), collectively referred to herein as 
HD OBD Regulations. EPA also confirms that certain of the 2013 HD OBD 
Amendments are within the scope of the previous waiver for the HD OBD 
Requirements and HD OBD Enforcement Regulation. This decision is issued 
under the authority of the Clean Air Act (``CAA'' or ``the Act'').

DATES: Petitions for review must be filed by January 6, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2014-0699. 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-2014-0699 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 Dickinson, Office of 
Transportation and Air Quality, U.S. Environmental Protection Agency, 
1200 Pennsylvania Ave. NW. Telephone: (202) 343-9256. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    CARB initially adopted the HD OBD Requirements in December 2005. 
The HD OBD Requirements require manufacturers to install compliant HD 
OBD systems with diesel and gasoline powered engines used in vehicles

[[Page 78150]]

having a gross vehicle weight rating greater than 14,000 pounds. HD OBD 
systems monitor emission-related components and systems for proper 
operation and for deterioration or malfunctions that cause emissions to 
exceed specific thresholds.
    EPA issued a waiver under section 209(b) of the CAA for the 2005 HD 
OBD Requirements in 2008.\1\ CARB subsequently updated the HD OBD 
Requirements to align the HD OBD Requirements with OBD II Requirements 
for medium-duty vehicles, and adopted the HD OBD Enforcement 
Regulation, in 2010. EPA issued California a waiver for the 2010 HD OBD 
Regulations in December 2012.\2\ CARB subsequently amended the HD OBD 
Regulations again in 2013. CARB formally adopted the 2013 HD OBD 
Amendments on June 26, 2013, and they became operative under state law 
on July 31, 2013. The HD OBD Requirements are codified at title 13, 
California Code of Regulations, section 1971.1. The HD OBD Enforcement 
Regulation is codified at title 13, California Code of Regulations, 
section 1971.5.
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    \1\ 73 FR 52042 (September 8, 2008).
    \2\ 77 FR 73459 (December 10, 2012).
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    By letter dated February 12, 2014, \3\ CARB submitted to EPA a 
request for a determination that the 2013 HD OBD Amendments are within 
the scope of the previous HD OBD waiver or, alternatively, that EPA 
grant California a waiver of preemption for the 2013 HD OBD Amendments.
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    \3\ CARB, ``Request for Waiver Action Pursuant to Clean Air Act 
Section 209(b) for California's Heavy-Duty Engine On-Board 
Diagnostic System Requirements (HD OBD) and On-Board Diagnostic 
System Requirements for Passenger Cars, Light-Duty Trucks, and 
Medium-Duty Vehicles and Engines (OBD II),'' February 12, 2014 
(``California Waiver Request Support Document'') See 
www.regulations.gov Web site, docket number EPA-HQ-OAR-2014-0699-
0003.
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    CARB's February 12, 2014 submission provides analysis and evidence 
to support its finding that the 2013 HD OBD Amendments satisfy the CAA 
section 209(b) criteria and that a waiver of preemption should be 
granted. CARB briefly summarizes the 2013 HD OBD Amendments as 
accomplishing the following primary purposes:

``accelerate the start date for OBD system implementation on 
alternate-fueled engines from the 2020 model year to the 2018 model 
year, relax some requirements for OBD systems on heavy-duty hybrid 
vehicles for the 2013 through 2015 model years, relax malfunction 
thresholds for three major emission control systems (particulate 
matter (PM) filters, oxides of nitrogen (NOx) catalysts, 
and NOx sensors) on diesel engines until the 2016 model 
year, delay monitoring requirements for some diesel-related 
components until 2015 to provide further lead time for emission 
control strategies to stabilize, and clarify requirements for 
several monitors and standardization.'' \4\
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    \4\ California Waiver Request Support Document, at 11-12.

    The 2013 HD OBD Amendments include several dozen amendments 
overall.\5\
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    \5\ The many 2013 HD OBD Amendments are individually summarized 
by CARB in the California Waiver Request Support Document, from 
pages 11-39.
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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.'' \6\
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    \6\ CAA section 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.\7\ 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.\8\
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    \7\ CAA section 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).
    \8\ CAA section 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 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.'' \9\
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    \9\ ``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.\10\ 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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    \10\ 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.'' \11\
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    \11\ 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

[[Page 78151]]

decision set aside as `arbitrary and capricious.'' ' \12\ Therefore, 
the Administrator's burden is to act ``reasonably.'' \13\
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    \12\ Id. at 1126.
    \13\ 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.'' \14\
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    \14\ 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 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.'' \15\
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    \15\ 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.\16\ 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.\17\
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    \16\ Id.
    \17\ 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.'' 
\18\
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    \18\ 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.'' \19\
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    \19\ 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.\20\ 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 protect the health of its citizens and the public 
welfare.\21\
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    \20\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13, 
1993).
    \21\ 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 November 20, 2014, EPA published a notice of opportunity for 
public hearing and comment on California's waiver request. In that 
notice, EPA requested comments on whether the 2013 HD OBD Amendments 
should be considered under the within-the-scope analysis or whether 
they should be considered under the full waiver criteria, and on 
whether the 2013 HD OBD Amendments meet the criteria for a full 
waiver.\22\ EPA additionally provided an opportunity for any individual 
to request a public hearing.
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    \22\ 79 FR 69104 (November 20, 2014).
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    EPA received no comments and no requests for a public hearing. 
Consequently, EPA did not hold a public hearing.

III. Discussion

A. Within-the-Scope Determination

    CARB proposes that certain of the 2013 HD OBD Amendments meet all 
three within-the-scope criteria, i.e. that the amendments: (1) Do not 
undermine California's previous protectiveness determination that its 
standards, in the aggregate, are at least as protective of public 
health and welfare as comparable federal standards; (2) do not affect 
the consistency of California's requirements with section 202(a) of the 
Act, and (3) do not raise any new issue affecting the prior waiver. 
CARB identifies the amendments it considers to be within the scope of 
the prior waiver in Attachments 2, 3, and 4 of the California Waiver 
Request Support Document.\23\ CARB does acknowledge that a number of 
the 2013 HD OBD Amendments potentially establish new or more stringent 
requirements, and thus will need a new waiver.\24\ These were 
identified by CARB in Attachments 1 and 4 of its Waiver Request Support 
Document.\25\ EPA must also assess

[[Page 78152]]

whether the HD OBD Amendments that have been identified by CARB as 
requirements within the scope of the prior waiver can be confirmed by 
EPA to not need a new waiver. If EPA determines that the amendments do 
not meet the requirements for a within-the-scope confirmation, we will 
then consider whether the amendments satisfy the criteria for full 
waiver.
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    \23\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at Attachment 2 (``2013 Amendments to HD OBD and 
OBD II Requirements That Relax Existing Requirements''), at 
Attachment 3 (``2013 Amendments to HD OBD and OBD II Requirements 
That Clarify Existing Requirements''), and at Attachment 4 (the 
portion identified as ``Amendments that Relax of Clarify Existing 
Requirements'').
    \24\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 42-43.
    \25\ See Attachment 1 (``2013 Amendments to HD OBD and OBD II 
Requirements That Potentially Establish New or More Stringent 
Requirements'') of the California Waiver Request Support Document 
[EPA-HQ-OAR-2014-0699-0003, at 72-73], and Attachment 4 (the portion 
identified as ``Amendments that Establish New or More Stringent 
Requirements'').
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    As described previously, EPA specifically invited comment on 
whether the 2013 HD OBD Amendments are within the scope of the prior 
waiver. We received no comments disputing CARB's contentions on this 
issue.
    With regard to the first of the within-the-scope criteria, CARB 
notes its finding in Resolution 12-29 that the 2013 HD OBD Amendments 
do not undermine California's previous protectiveness determination 
that its standards, in the aggregate, are at least as protective of 
public health and welfare as comparable federal standards.\26\ CARB 
maintains that its HD OBD Regulations are more stringent than 
comparable federal regulations.\27\ As there are no comments and EPA is 
not aware of evidence to the contrary, EPA finds that the 2013 HD OBD 
Amendments do not undermine the previous protectiveness determination 
made with regard to California's HD OBD Requirements and HD OBD 
Enforcement Regulation.
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    \26\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 43, 51, and Attachment 14 (CARB Resolution 12-
29, dated August 23, 2012).
    \27\ Id.
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    With regard to the second within-the-scope prong (affecting 
consistency with section 202(a) of the Act), CARB argues that the 2013 
HD OBD Amendments listed in Attachments 2, 3 and 4 as relaxing or 
clarifying existing requirements do not affect the consistency of 
California's requirements with section 202(a) of the Act. For these 
amendments, CARB states that there is sufficient lead time to permit 
the development of technology necessary to meet the standards, giving 
appropriate consideration to the cost of compliance, since the 
amendments merely relax or clarify existing standards, and that 
manufacturers can still meet both the state and federal test 
requirements with one test vehicle or engine.\28\ California contends 
that the 2013 HD OBD Amendments (other than those specifically listed 
in Attachments 1 and 4 as being otherwise) do not create new or more 
stringent requirements.\29\ In addition, regarding the third within-
the-scope prong, CARB argues that the 2013 HD OBD Amendments (other 
than those identified in Attachments 1 and 4 as establishing new or 
more stringent standards) do not raise any new issue affecting the 
prior waiver.\30\
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    \28\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 45-46, 51-52.
    \29\ See California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 50-54.
    \30\ Id.
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    Despite CARB's contentions on the second and third within-the-scope 
prongs, it was self-evident in EPA's review of the record that some of 
the amendments identified by CARB as being within the scope of the 
prior waiver instead require a new waiver because the amendments raise 
new issues regarding the waiver and may affect the consistency of 
California's requirements with section 202(a) of the Act. As stated in 
the background section, while the burden of proof rests with opponents 
of a waiver request (and there were none in this case), EPA retains the 
burden ``to make a reasonable evaluation of the information in the 
record'' before it. In evaluating the record, it is clear that some of 
the 2013 HD OBD Amendments listed by CARB as clarifying or relaxing 
existing requirements arguably provide new or more stringent 
requirements that must be met by manufacturers. Specifically, in 
addition to the amendments listed by CARB in Attachment 1 to its Waiver 
Request Support Document, EPA notes that the following additional 2013 
HD OBD Amendments also provide new or more stringent requirements and 
thus require a new waiver:
    [In the order presented in the Waiver Request Support Document, 
Attachment 2]
    Section 1971.1(d)(4.3.2)(E): Denominator Specifications [providing 
new criteria to increment the denominator]
    Section 1971.1(d)(4.3.2)(J): Denominator Specifications for Hybrid 
Vehicles [providing new criteria to increment the denominator for 
hybrid vehicles]
    Section 1971.1(e)(8.2.4): NMHC Conversion Monitoring [requiring 
monitoring of capability to generate desired feed gas]
    Section 1971.1(e)(9.2.2)(A): NOx and PM Sensor 
Malfunction Criteria [requiring fault before emissions are twice the 
NMHC standard]
    Section 1971.1(e)(9.3.1): NOx and PM Sensor Monitoring 
Conditions [requiring track and report of ``monitoring capability'' 
monitors]
    Section 1971.1(g)(3.2.2)(B)(ii)d: Diesel Idle Control System 
Monitoring [requiring manufacturer to consider known, not given, 
operating conditions]
    [In the order presented in the Waiver Request Support Document, 
Attachment 3]
    Section 1971.1(c): ``Alternate-fueled engine'' [new scope of 
exempted vehicles]
    Section 1971.1(c): ``Ignition Cycle'' and ``Propulsion System 
Active'' [new specific requirements for hybrid vehicles]
    Section 1971.1(d)(2.3.1)(A) and (2.3.2)(A): MIL Extinguishing and 
Fault Code Erasure Protocol [requiring MIL to be extinguished after 
three driving cycles]
    Section 1971.1(d)(2.3.1)(C)(ii)(b).3 and (2.3.2)(D)(ii)b.3: Erasing 
a Permanent Fault Code [requiring erasure of fault code if not detected 
again for 40 warm-up cycles]
    Section 1971.1(d)(5.5.2)(B): Ignition Cycle Counter [requiring 
counter to be incremented when hybrid vehicle propulsion system is 
active for minimum time period]
    Section 1971.1(f)(7.1): Evaporative System Monitoring [requiring 
evaporative system monitoring for alternative-fueled engines]
    Section 1971.1(h)(3.2): SAE J1939 Communication Protocol 
[prohibiting use of 250 kbps baud rate version for 2016 model year]
    Section 1971.1(h)(4.1): Readiness status [removing exceptions 
allowing readiness status to say ``complete'' under certain conditions 
without completion of monitoring]
    Section 1971.1(h)(4.2.2) and (h)(4.2.3)(E): Data Stream [requiring 
additional information in data stream]
    Section 1971.1(h)(4.5.5): Test Results when Fault Memory Cleared 
[requiring report of non-zero values corresponding to ``test not 
complete'']
    Section 1971.1(i)(3.1.2): Diesel Misfire Monitor [requiring 
continuous misfire monitoring for diesel engines and demonstration 
testing for the misfire monitor]
    Section 1971.1(i)(3.2.1): Gasoline Fuel System [requiring 
demonstration testing of air-fuel cylinder imbalance monitor]
    [In the order presented in the Waiver Request Support Document, 
Attachment 4]
    Section 1971.5(d)(3)(A)(iii) [adding mandatory recall criteria for 
diesel misfire monitors]
    Section 1971.5(d)(3)(A)(vi) [adding mandatory recall criteria for 
PM filter monitors]
    The amendments listed above combined with those listed in 
Attachment 1 to Waiver Request

[[Page 78153]]

Support Document will hereafter be referred to as 2013 HD OBD New or 
Stricter Requirements. For the remaining 2013 HD OBD Amendments that 
are not listed above (i.e., the ``Relaxed 2013 HD OBD Requirements''), 
no evidence or comment was received indicating that the Relaxed 2013 HD 
OBD Requirements are not within the scope of the prior waiver, nor was 
there anything self-evident from the record indicating otherwise. 
Therefore, EPA cannot find that the Relaxed 2013 HD OBD Requirements 
either affect the consistency of California's requirements with section 
202(a) of the Act or raise a new issue affecting the prior waiver. 
California has thus met the within-the-scope criteria, and EPA confirms 
that the Relaxed 2013 HD OBD Requirements are within the scope of the 
previous waiver of the HD OBD Requirements and HD OBD Enforcement 
Regulation.

B. New Waiver Determination

a. Whether California's Protectiveness Determination was Arbitrary and 
Capricious
    As stated in the background, section 209(b)(1)(A) of the Act sets 
forth the first of the three criteria governing a new 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.\31\
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    \31\ 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).
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    CARB did make a protectiveness determination in adopting the 2013 
HD OBD Amendments, and found that the 2013 HD OBD Amendments 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.\32\ EPA received no comments or EPA is not otherwise 
aware of evidence suggesting that CARB's protectiveness determination 
was unreasonable.
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    \32\ California Waiver Request Support Document [EPA-HQ-OAR-
2014-0699-0003], at 43, 51, and Attachment 14 (CARB Resolution 12-
29, dated August 23, 2012).
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    As it is clear that California's standards are at least as 
protective of public health and welfare as applicable federal 
standards, and that the 2013 HD OBD New or Stricter Requirements make 
California's standards even more protective, EPA finds that 
California's protectiveness determination is not arbitrary and 
capricious.
b. 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 State standards 
to meet compelling and extraordinary conditions.'' EPA's inquiry under 
this second criterion has traditionally been to determine whether 
California needs its own motor vehicle emission control program (i.e. 
set of standards) to meet compelling and extraordinary conditions, and 
not whether the specific standards (the 2013 HD OBD New or Stricter 
Requirements) that are the subject of the waiver request are necessary 
to meet such conditions.\33\ 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.'' \34\
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    \33\ 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.
    \34\ 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 motor 
vehicle emission program as a whole) applied to local or regional 
air pollution problems.
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    In conjunction with the 2013 HD OBD Amendments, CARB determined in 
Resolution 12-29 that California continues to need its own motor 
vehicle program to meet serious ongoing air pollution problems.\35\ 
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.'' \36\
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    \35\ California Waiver Request Support Document, at 44 and 
Attachment 14 (Resolution 12-29, dated August 23, 2012).
    \36\ California Waiver Request Support Document, at 45.
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    There has been no evidence submitted to indicate that California's 
compelling and extraordinary conditions do not continue to exist. 
California, particularly in 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.\37\ As California has previously stated, ``nothing in 
[California's unique geographic and climatic] conditions has changed to 
warrant a change in this determination.'' \38\
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    \37\ 74 FR 32744, 32762-63 (July 8, 2009).
    \38\ 74 FR 32744, 32762 (July 8, 2009); 76 FR 77515, 77518 
(December 13, 2011).
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    Based on the record before us, EPA is unable to identify any change 
in 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 find that California 
does not need its state standards to meet compelling and extraordinary 
conditions in California.
c. 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 would be 
shown here by demonstrating

[[Page 78154]]

that there is inadequate lead time to permit the development of 
technology necessary to meet the 2013 HD OBD New or Stricter 
Requirements that are subject to the waiver request, giving appropriate 
consideration to the cost of compliance within that time.\39\ 
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.\40\
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    \39\ See, e.g., 38 F.R 30136 (November 1, 1973) and 40 FR 30311 
(July 18, 1975).
    \40\ See, e.g., 43 FR 32182 (July 25, 1978).
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    Regarding test procedure conflict, CARB notes that there is no 
issue of test procedure inconsistency because federal regulations 
provide that engines certified to California's HD OBD regulation are 
deemed to comply with federal standards. EPA has received no adverse 
comment or evidence of test procedure inconsistency. We therefore 
cannot find that the 2013 HD OBD New or Stricter Requirements are 
inconsistent with federal test procedures.
    EPA also did not receive any comments arguing that the 2013 HD OBD 
Amendments were technologically infeasible or that the cost of 
compliance would be excessive, such that California's standards might 
be inconsistent with section 202(a).\41\ In EPA's review of the 2013 HD 
OBD New or Stricter Requirements, we likewise cannot identify any 
requirements that appear technologically infeasible or excessively 
expensive for manufacturers to implement within the timeframes 
provided. EPA therefore cannot find that the 2013 HD OBD New or 
Stricter Requirements do not provide adequate lead time or are 
otherwise not technically feasible.
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    \41\ 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).
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    We therefore cannot find that the 2013 HD OBD New or Stricter 
Requirements that we analyzed under the waiver criteria are 
inconsistent with section 202(a).
    Having found that the 2013 HD OBD New or Stricter Requirements 
satisfy each of the criteria for a waiver, and having received no 
evidence to contradict this finding, we cannot deny a waiver for the 
amendments.

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 2013 HD OBD Amendments and CARB's 
submissions for EPA review, EPA is hereby confirming that the 2013 HD 
OBD Amendments, with the exception of the 2013 HD OBD New or Stricter 
Requirements identified above, are within the scope of EPA's previous 
waivers for the HD OBD Requirements and HD OBD Enforcement Regulation. 
In addition, EPA is hereby granting a waiver for the 2013 HD OBD New or 
Stricter Requirements.
    This decision will affect persons in California and those 
manufacturers and/or owners/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 January 6, 2017. 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: October 24, 2016.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2016-26865 Filed 11-4-16; 8:45 am]
 BILLING CODE 6560-50-P