81 FR 95982 - California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Emissions From 2014 and Subsequent Model Year Medium- and Heavy-Duty Engines and Vehicles; Notice of Decision
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 250 (December 29, 2016)
Federal Register Volume 81, Issue 250 (December 29, 2016)
| Page Range | 95982-95987 | |
| FR Document | 2016-31646 |
[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)] [Notices] [Pages 95982-95987] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-31646] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2016-0179; FRL-9957-70-OAR] California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Emissions From 2014 and Subsequent Model Year Medium- and Heavy-Duty Engines and Vehicles; Notice of Decision AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of decision. ----------------------------------------------------------------------- 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 its greenhouse gas (``GHG'') emission regulation for the new 2014 and subsequent model year on-road medium- and heavy-duty engines and vehicles (``California Phase 1 GHG Regulation'') adopted in 2011. This regulation establishes requirements applicable to new motor vehicles with a gross vehicle weight rating exceeding 8,500 pounds and engines that power such motor vehicles, except for medium-duty passenger vehicles that are subject to California's Low Emission Vehicle Program. This regulation generally aligns California's GHG emission standards and test procedures with the federal GHG emission standards and test procedures that EPA [[Page 95983]] adopted in 2011. A deemed-to-comply provision is included in CARB's regulation whereby manufacturers may demonstrate compliance with California's Phase 1 GHG Regulation by complying with EPA's Phase 1 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 February 27, 2017. ADDRESSES: EPA has established a docket for this action under Docket ID EPA-HQ-OAR-2016-0179. 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-2016-0179 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 California's Phase 1 GHG Regulation complements CARB's existing Tractor-Trailer GHG regulation that was initially adopted in December 2008 and subsequently amended in 2010 and 2012. EPA granted California a waiver for the Tractor-Trailer GHG regulation in 2014.\1\ The Tractor-Trailer GHG regulation requires new 2011 and subsequent model year (``MY'') sleeper-cab tractors that haul 53-foot or longer box-type trailers on California highways, and 53-foot and longer box-type trailers operating on California highways to be equipped with U.S. EPA SmartWay approved aerodynamic technologies and low-rolling resistance tires. California's Phase 1 GHG Regulation establishes emission standards for tractors that are also subject to the requirements of CARB's Tractor-Trailer GHG regulation. CARB amended the Tractor-Trailer GHG regulation in conjunction with its adoption of the Phase 1 GHG Regulation to make California's GHG requirements for new medium- and heavy-duty engines and vehicles consistent with corresponding requirements of EPA's Phase 1 GHG regulation.\2\ The California Phase 1 GHG Regulation establishes GHG emission standards and associated test procedures for new 2014 and subsequent MY diesel-fueled medium- and heavy-duty engines and for new 2016 and subsequent MY gasoline-fueled medium- and heavy-duty engines used in combination tractors and vocational vehicles that are identical to the corresponding GHG emission standards and associated test procedures for diesel and gasoline-fueled heavy-duty engines in EPA's Phase 1 GHG regulation. The California Phase 1 GHG Regulation also contains ``deemed to comply'' provisions that allow engine manufacturers to demonstrate that 2014 through 2022 model year medium- and heavy-duty engines comply with California's GHG emission standards by showing compliance with EPA's Phase 1 regulation, i.e., submitting to CARB the engine family's Certificate of Conformity issued by EPA.\3\ --------------------------------------------------------------------------- \1\ 79 FR 46256 (August 7, 2014). \2\ 76 FR 57106 (September 15, 2011). \3\ See ``California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel-Engines and Vehicles'', Part 1036, Subpart B, section 1036.108, and ``California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Otto-Cycle Engines and Vehicles'', Part 1036, Subpart B, section 1036.108. See also ``California Greenhouse Gas Exhaust Emission Standards and Test Procedures for 2014 and Subsequent Model Heavy-Duty Vehicles'', Part 1037, Subpart B, section 1037.101(b)(2). --------------------------------------------------------------------------- By letter dated January 29, 2016,\4\ CARB submitted to EPA a request for a waiver of the preemption found at section 209(a) of Clean Air Act, 42 U.S.C. 7543(a), for the California Phase 1 GHG Regulation. CARB's submission provides analysis and evidence to support its finding that the California Phase 1 GHG Regulation satisfies the CAA section 209(b) criteria and that a waiver of preemption should be granted. --------------------------------------------------------------------------- \4\ CARB, ``In the Matter of California's Request for Waiver Pursuant to Clean Air Act Section 209(b) for California's Greenhouse Gas Regulation for Medium- and heavy-Duty Engines and Vehicles,'' January 29, 2016 (``California Waiver Request Support Document'') See www.regulations.gov Web site, docket number EPA-HQ-OAR-2016- 0179-0003. --------------------------------------------------------------------------- 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.\5\ --------------------------------------------------------------------------- \5\ 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.\6\ 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.\7\ --------------------------------------------------------------------------- \6\ 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). \7\ CAA Sec. 209(b)(1). 42 U.S.C. 7543(b)(1). --------------------------------------------------------------------------- [[Page 95984]] 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.\8\ --------------------------------------------------------------------------- \8\ ``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.\9\ ``[T]he statute does not provide for any probing substantive review of the California standards by federal officials.'' Ford Motor Co. v. EPA, 606 F.2d 1293, 1300 (D.C. Cir. 1979). 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). --------------------------------------------------------------------------- \9\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) (``MEMA I''). --------------------------------------------------------------------------- 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.\10\ --------------------------------------------------------------------------- \10\ 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.' '' \11\ Therefore, the Administrator's burden is to act ``reasonably.'' \12\ --------------------------------------------------------------------------- \11\ Id. at 1126. \12\ Id. at 1126. --------------------------------------------------------------------------- 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.\13\ --------------------------------------------------------------------------- \13\ 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.'' \14\ --------------------------------------------------------------------------- \14\ Id. --------------------------------------------------------------------------- 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.\15\ 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.\16\ --------------------------------------------------------------------------- \15\ Id. \16\ Id. --------------------------------------------------------------------------- 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.'' \17\ --------------------------------------------------------------------------- \17\ See, e.g., ``California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 28, 1975), at 23103. --------------------------------------------------------------------------- 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.\18\ \18\ 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.\19\ This interpretation is supported by relevant discussion in the House Committee [[Page 95985]] 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.\20\ --------------------------------------------------------------------------- \19\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13, 1993). \20\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977)). --------------------------------------------------------------------------- D. EPA's Administrative Process in Consideration of California's Request On August 9, 2016, EPA published a notice of opportunity for public hearing and comment on California's waiver request. In that notice, EPA requested comments on CARB's request for a waiver for the California Phase 1 GHG Regulation under the following three criteria: Whether (a) California's determination that its motor vehicle emissions 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 State 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. EPA received no comments and no requests for a public hearing. Consequently, EPA did not hold a public hearing. III. Discussion 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 motor vehicle emissions 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.\21\ --------------------------------------------------------------------------- \21\ 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 California Phase 1 GHG Regulation, and found that the California Phase 1 GHG Regulation 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.\22\ CARB notes that its rulemaking action established California GHG emission standards for medium- and heavy-duty vehicles that are identical to the corresponding GHG emission standards for heavy-duty engines and vehicles in EPA's Phase 1 GHG regulation, and the regulation further contains ``deemed to comply'' provisions that allow manufacturers to demonstrate 2014 through 2022 model year medium- and heavy-duty engines and vehicles comply with California GHG emission standards by providing CARB the same emissions data and related information required to certify the engine or vehicle to EPA's Phase 1 GHG regulations' requirements.\23\ In addition, CARB notes that minor differences remain between the EPA and CARB programs that provide further assurances that California's program is, in the aggregate, at least as protective as the federal program as applied to the categories of affected medium- and heavy-duty engines and vehicles.\24\ EPA received no comments and EPA is not otherwise aware of evidence suggesting that CARB's protectiveness determination was unreasonable. --------------------------------------------------------------------------- \22\ California Waiver Request Support Document at 30-31, and Attachment 11 (CARB Resolution 13-50, dated December 12, 2013, at EPA-HQ-OAR-2016-0179-0012). The CARB Board expressly declared in Resolution 13-50 that ``BE IT FURTHER RESOLVED that the Board hereby determines that the regulations adopted herein will not cause California motor vehicle emission standards, in the aggregate, to be less protective of the public health and welfare than applicable federal standards. \23\ Id. ``Phase 1 Certified Tractor'' means a tractor that has been certified in accordance with either the Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles, as adopted by the US EPA (76 FR 57106 (September 15, 2011)); or the Greenhouse Gas Emission Requirements for New 2014 and Subsequent Model Heavy-Duty Vehicles, as adopted by the California Air Resources Board, sections 95660 to 95664, Subarticle 12, title 17, California Code of Regulations 95302. \24\ Id. For example, CARB explains that California's Phase 1 GHG Regulation does not fully incorporate the federal definition of ``urban bus'' in order to preserve California's existing requirement that urban buses be powered by heavy heavy-duty diesel engines (HHD) for which an EPA waiver has already been granted (78 FR 44112 (July 23, 2013), and that the useful life period for HHD diesel engines exceeds the federal useful life period for light heavy-duty and medium heavy-duty diesel engines. --------------------------------------------------------------------------- As it is clear that California's standards are at least as protective of public health and welfare as applicable federal standards, and that CARB's deemed to comply provision together with the unique aspects of the California Phase 1 GHG Regulation 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 California Phase 1 GHG Regulation) that are the subject of the waiver request are necessary to meet such conditions.\25\ In recent waiver actions, EPA again examined the language of section 209(b)(1)(B) and reiterated this longstanding traditional interpretation as the appropriate approach for analyzing the need for ``such State standards'' to meet ``compelling and extraordinary conditions.'' \26\ --------------------------------------------------------------------------- \25\ 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. \26\ 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. See also 79 FR 46256, 46261 (August 7, 2014). --------------------------------------------------------------------------- In conjunction with the California Phase 1 GHG Regulation, CARB determined in Resolution 13-50 that California continues to need its own motor vehicle program to meet serious [[Page 95986]] ongoing air pollution problems.\27\ CARB asserted that ``The 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. EPA has long confirmed CARB's judgment, on behalf of the State of California, on this matter.'' \28\ In enacting the California Global Warming Solutions --------------------------------------------------------------------------- Act of 2006, the Legislature found and declared that: Global warming poses a serious threat to the economic well- being, public health, natural resources, and the environment of California. The potential adverse impacts of global warming include the exacerbation of air quality problems, a reduction in the quality and supply of water to the state from the Sierra snowpack, a rise in sea levels resulting in the displacement of thousands of coastal businesses and residences, damage to the marine ecosystems and the natural environment, and an increase in the incidences of infectious diseases, asthma, and other health-related problems.\29\ \27\ California Waiver Request Support Document, at 31, referencing Resolution 13-50, dated December 12, 2013 (see EPA-HQ- OAR-2016-0179-0012). Resolution 13-50 also states ``WHEREAS, heavy- duty trucks, buses, and motor homes emitted 23 percent of greenhouse gas (GHG) emissions from on-road vehicles and 8 percent of GHG emissions from all sources in California in 2010. Resolution 13-50 also states ``WHEREAS, in recognition of the devastating impacts of climate change emissions on California, Governor Schwarzenegger, in June 2005, enacted Executive Order S-3-05 which established the following GHG emission targets: By 2010, reduce GHG emissions to 2000 levels; by 2020, reduce GHG emissions to 1990 levels; and by 2050, reduce GHG emissions 80 percent below 1990 levels. In addition, the South Coast and San Joaquin Valley air basins continue to experience some of the worst air quality in the nation, and many areas in California continue to be in nonattainment for the national ambient air quality standards for particulate matter and ozone (81 FR 78149, 78153, November 7, 2016). To address this issue, for example, California's heavy-duty program also includes an optional low NOX provision, and CARB states ``Because the proposed regulation for Optional Low NOX emissions standards is optional, the emission benefits from that proposal will depend on the level of participation by engine manufacturers. Staff estimated NOX emission benefits for two different scenarios based on low and high participation rates from manufacturers and estimated NOX emission benefits of 0.6 to 1.2 tons per day (TPD) statewide in 2020, and 3.3 to 6.9 TPD in 2035.'' CARB Initial Statement of Reasons, December 12, 2013, EPA-HQ-OAR-2016-0179-0003. \28\ California Waiver Request Support Document, at 33 (referencing 70 FR 50322, 50323 (August 26, 2005); 74 FR 32744, 32762-763 (July 9, 2009); 79 FR 46256, 46262 (August 7, 2014). \29\ Id. at 33. The Global Warming Solutions Act also sets for the California Legislature's finding and declaration that ``Continuing to reduce greenhouse gas emissions is critical for the protection of all areas of the state, but especially for the state's most disadvantaged communities, as those communities are affected first, and, most frequently, by the adverse impacts of climate change, including an increased frequency of extreme weather events, such as drought, heat, and flooding. The state's most disadvantaged communities also are disproportionately impacted by the deleterious effects of climate change on public health.'' In addition, on April 29, 2015, California Governor Edmund Brown issued Executive Order B- 30-15 which states in part ``WHEREAS climate change poses an ever- growing threat to the well-being, public health, natural resources, economy, and the environment of California, including loss of snowpack, drought, sea level rise, more frequent and intense wildfires, heat waves, more severe smog, and harm to natural and working lands, and these effects are already being felt in the state.'' --------------------------------------------------------------------------- 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.\30\ As California has previously stated, ``nothing in [California's unique geographic and climatic] conditions has changed to warrant a change in this determination.'' \31\ EPA agrees that the fundamental conditions that cause California's serious air pollution problems continue to exist.\32\ Therefore, EPA affirms California's need for its new motor vehicle emissions program as a whole, to meet compelling and extraordinary conditions. In addition, EPA notes the continued adverse impacts of California's changing climate (e.g. the increase in wildfires, increased threats to coastal developments and ecosystems, etc.).\33\ --------------------------------------------------------------------------- \30\ 74 FR 32744, 32762-63 (July 8, 2009). \31\ 74 FR 32744, 32762 (July 8, 2009); 76 FR 77515, 77518 (December 13, 2011). \32\ In addition to the variety of human health impacts associated with high air temperatures (e.g., heat stroke and dehydration, and effects on people's cardiovascular, respiratory, and nervous systems), warming can also increase the formation of ground-level ozone, a component of smog that can contribute to respiratory problems. See ``What Climate Change Means for California,'' August 2016, EPA 430-F-16-007 at https://www.epa.gov/sites/production/files/2016-09/documents/climate-change-ca.pdf. \33\ Id. --------------------------------------------------------------------------- Based on the record before us, including EPA's prior waiver decisions, 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, including greenhouse gas emission 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 that there is inadequate lead time to permit the development of technology necessary to meet the California Phase 1 GHG Regulation, giving appropriate consideration to the cost of compliance within that time.\34\ 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.\35\ --------------------------------------------------------------------------- \34\ See, e.g., 38 F.R 30136 (November 1, 1973) and 40 FR 30311 (July 18, 1975). \35\ See, e.g., 43 FR 32182 (July 25, 1978). --------------------------------------------------------------------------- Regarding test procedure conflict, CARB notes that it is not aware of any instances in which a manufacturer is precluded from conducting one set of tests on a heavy-duty engine or a heavy-duty vehicle to determine compliance with both California and federal GHG requirements. The regulation's ``deemed to comply'' provisions ensure that engine and vehicle manufacturers can use federal test results to demonstrate compliance with California's GHG emission standards through the 2022 model year. CARB also notes that no test procedure inconsistencies exist for those manufactures that elect not to utilize the deemed to comply provisions, or for 2023 and subsequent model year engines and vehicles because the California GHG emission standards and associated test procedures for new medium- and heavy-duty engines and new medium- and heavy-duty vehicles are identical to corresponding federal GHG emission standards and test procedures.\36\ For the reasons set forth above, and because [[Page 95987]] there is no evidence in the record or other information that EPA is aware of, EPA cannot find that CARB's Phase I GHG Regulation is inconsistent with section 202(a) based upon test procedure inconsistency. --------------------------------------------------------------------------- \36\ California Waiver Support Document at 44. --------------------------------------------------------------------------- In addition, EPA did not receive any comments arguing that the California Phase 1 GHG Regulation was technologically infeasible or that the cost of compliance would be excessive, such that California's standards might be inconsistent with section 202(a).\37\ In EPA's review of CARB's Phase 1 GHG Regulation, we likewise cannot identify any requirements that appear technologically infeasible or excessively expensive for manufacturers to implement within the timeframes provided.\38\ EPA therefore cannot find that the California Phase 1 GHG Regulation does not provide adequate lead time or is otherwise not technically feasible. --------------------------------------------------------------------------- \37\ 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). \38\ California Waiver Support Document at 34-43. For example, both CARB and EPA identified a host of technologies suitable for compliance with medium- and heavy-duty diesel engine CO2 standards, and for engines in combination tractors and vocational vehicles. In addition, CARB and EPA identified a variety of compliance strategy technologies for heavy-duty gasoline engine CO2 standards. EPA and CARB also identified a number of commercially available technologies that will enable 2014 through 2018 MY heavy-duty pick-up truck and van (``PUV'') GHG emission standards. --------------------------------------------------------------------------- We therefore cannot find that the California Phase 1 GHG Regulation that we analyzed under the waiver criteria is inconsistent with section 202(a). Having found that the California Phase 1 GHG Regulation satisfies each of the criteria for a waiver, and having received no evidence to contradict this finding, we cannot deny a waiver for the regulation. 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 California Phase 1 GHG Regulation and CARB's submissions for EPA review, EPA is hereby granting a waiver for the California Phase 1 GHG Regulation. 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 February 27, 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: December 22, 2016. Janet G. McCabe, Acting Assistant Administrator, Office of Air and Radiation. [FR Doc. 2016-31646 Filed 12-28-16; 8:45 am] BILLING CODE 6560-50-P
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Agency, Office of the Science Advisor, comments for consideration by the finalize their draft Final Report from the
Mail Code 8105R, 1200 Pennsylvania HSRB. January 25–26, 2017 meeting in addition
Avenue NW., Washington, DC 20460. to other topics that may come before the
Background
SUPPLEMENTARY INFORMATION: Board. The HSRB may also discuss
Meeting access: These meetings are The HSRB is a Federal advisory planning for future HSRB meetings. The
open to the public. The full Agenda and committee operating in accordance with agenda and the draft report will be
Meeting materials are available at the the Federal Advisory Committee Act 5 available prior to the conference call at
HSRB Web site: http://www2.epa.gov/ U.S.C. App. 2 § 9. The HSRB provides http://www2.epa.gov/osa/human-
osa/human-studies-review-board. For advice, information, and studies-review-board.
questions on document availability, or if recommendations on issues related to Meeting minutes and final reports.
you do not have access to the Internet, scientific and ethical aspects of human Minutes of these meetings, summarizing
consult with the DFO, Jim Downing subjects research that are submitted to the matters discussed and
listed under FOR FURTHER INFORMATION the Office of Pesticide Programs to be recommendations made by the HSRB,
CONTACT.
used for regulatory purposes. The major will be released within 90 calendar days
Special accommodations. For objectives of the HSRB are to provide of the meeting. These minutes will be
information on access or services for advice and recommendations on: (1) available at http://www2.epa.gov/osa/
individuals with disabilities, or to Research proposals and protocols; (2) human-studies-review-board. In
request accommodation of a disability, reports of completed research with addition, information regarding the
please contact the DFO listed under FOR human subjects; and (3) how to HSRB’s Final Report, will be found at
FURTHER INFORMATION CONTACT at least
strengthen EPA’s programs for http://www2.epa.gov/osa/human-
10 days prior to the meeting to give EPA protection of human subjects of studies-review-board or from Jim
as much time as possible to process research. Downing listed under FOR FURTHER
Topics for discussion. On Wednesday, INFORMATION CONTACT.
your request.
January 25, 2017, EPA’s Human Studies
Dated: December 19, 2016.
How may I participate in this meeting? Review Board will consider three
published articles: Thomas A. Burke,
The HSRB encourages the public’s EPA Science Advisor.
1. Methylisothiazolinone contact
input. You may participate in these
allergy and dose-response relationships, [FR Doc. 2016–31640 Filed 12–28–16; 8:45 am]
meetings by following the instructions
authored by Michael D. Lundov, Claus BILLING CODE 6560–50–P
in this section.
Zachariae, and Jeanne D. Johansen.
1. Oral comments. Requests to present
Contact Dermatitis (2011) 64, 330–336.
oral comments during either conference 2. Methylisothiazolinone in rinse-off ENVIRONMENTAL PROTECTION
call will be accepted up to Noon Eastern products causes allergic contact AGENCY
Time on Wednesday, January 18, 2017, dermatitis: A repeated open-application
for the January 25–26, 2017 meeting and [EPA–HQ–OAR–2016–0179; FRL–9957–70–
study, authored by K Yazar, M.D. OAR]
up to Noon Eastern Time on Friday, Lundov, A. Faurschou, M. Matura, A.
March 10, 2017 for the March 17, 2017 Boman, J.D. Johansen, and C. Lidén. California State Motor Vehicle
conference call. To the extent that time British Journal of Dermatology (2015) Pollution Control Standards;
permits, interested persons who have 173, 115–122. Greenhouse Gas Emissions From 2014
not pre-registered may be permitted by 3. An evaluation of dose/unit area and and Subsequent Model Year Medium-
the HSRB Chair to present oral time as key factors influencing the and Heavy-Duty Engines and Vehicles;
comments during either call at the elicitation capacity of Notice of Decision
designated time on the agenda. Oral methylchloroisothiazolinone/
comments before the HSRB are methylisothiazolinone (MCI/MI) in AGENCY: Environmental Protection
generally limited to five minutes per MCI/MI-allergic patients, authored by Agency (EPA).
individual or organization. If additional Claus Zachariae, Anne Lerbaek, Pauline ACTION: Notice of decision.
time is available, further public M. McNamee, John E. Gray, Mike
comments may be possible. Wooder, and Torkil Menné. Contact SUMMARY: The Environmental Protection
2. Written comments. Submit your Dermatitis (2006) 55, 160–166. Agency (EPA) is granting the California
written comments prior to the meetings. Then on Thursday, January 26, 2017 Air Resources Board’s (‘‘CARB’s’’)
For the Board to have the best the HSRB will consider: request for a waiver of Clean Air Act
opportunity to review and consider your 1. Published article: Cholinesterase preemption for its greenhouse gas
comments as it deliberates, you should Activity Resulting from Carbaryl (‘‘GHG’’) emission regulation for the
submit your comments by Noon Eastern Exposure. new 2014 and subsequent model year
Time on Wednesday, January 18, 2016, 2. Unpublished article: A randomized on-road medium- and heavy-duty
for the January 25–26, 2017 conference double blind study with malathion to engines and vehicles (‘‘California Phase
call, and by noon Eastern Time on determine the residues of malathion 1 GHG Regulation’’) adopted in 2011.
Friday, March 10, 2017 for the March dicarboxylic acid (DCA), malathion This regulation establishes requirements
17, 2017 teleconference. If you submit monocarboxylic acid (MCA), dimethyl applicable to new motor vehicles with
comments after these dates, those phosphate (DMP), dimethyl a gross vehicle weight rating exceeding
comments will be provided to the HSRB 8,500 pounds and engines that power
asabaliauskas on DSK3SPTVN1PROD with NOTICES
thiophosphate (DMTP), and dimethyl
members, but you should recognize that dithiophosphate (DMDTP) in human such motor vehicles, except for
the HSRB members may not have urine. medium-duty passenger vehicles that
adequate time to consider your Meeting materials for these topics will are subject to California’s Low Emission
comments prior to their discussion. You be available in advance of the meeting Vehicle Program. This regulation
should submit your comments to the at http://www2.epa.gov/osa/human- generally aligns California’s GHG
DFO, Jim Downing listed under FOR studies-review-board. emission standards and test procedures
FURTHER INFORMATION CONTACT. There is On March 17, 2017, the Human with the federal GHG emission
no limit on the length of written Studies Review Board will review and standards and test procedures that EPA
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Key principles governing this review the waiver request bear the burden of possible discretion in setting regulations
are that EPA should limit its inquiry to persuading the Administrator that the waiver it finds protective of the public health
the specific findings identified in request should be denied.10 and welfare.16
section 209(b)(1) of the Clean Air Act, The Administrator’s burden, on the With respect to the consistency
and that EPA will give substantial other hand, is to make a reasonable finding, the court did not articulate a
deference to the policy judgments evaluation of the information in the standard of proof applicable to all
California has made in adopting its record in coming to the waiver decision. proceedings, but found that the
regulations. In previous waiver As the court in MEMA I stated: ‘‘here, opponents of the waiver were unable to
decisions, EPA has stated that Congress too, if the Administrator ignores meet their burden of proof even if the
intended the Agency’s review of evidence demonstrating that the waiver standard were a mere preponderance of
California’s decision-making to be should not be granted, or if he seeks to the evidence. Although MEMA I did not
narrow. EPA has rejected arguments that overcome that evidence with explicitly consider the standards of
are not specified in the statute as unsupported assumptions of his own, proof under section 209 concerning a
grounds for denying a waiver: he runs the risk of having his waiver waiver request for ‘‘standards,’’ as
The law makes it clear that the waiver decision set aside as ‘arbitrary and compared to a waiver request for
requests cannot be denied unless the specific capricious.’ ’’ 11 Therefore, the accompanying enforcement procedures,
findings designated in the statute can Administrator’s burden is to act there is nothing in the opinion to
properly be made. The issue of whether a ‘‘reasonably.’’ 12 suggest that the court’s analysis would
proposed California requirement is likely to With regard to the standard of proof, not apply with equal force to such
result in only marginal improvement in the court in MEMA I explained that the determinations. EPA’s past waiver
California air quality not commensurate with Administrator’s role in a section 209 decisions have consistently made clear
its costs or is otherwise an arguably unwise
exercise of regulatory power is not legally
proceeding is to: that: ‘‘[E]ven in the two areas
pertinent to my decision under section 209, [ . . . ]consider all evidence that passes the concededly reserved for Federal
so long as the California requirement is threshold test of materiality and . . . judgment by this legislation—the
consistent with section 202(a) and is more thereafter assess such material evidence existence of ‘compelling and
stringent than applicable Federal against a standard of proof to determine extraordinary’ conditions and whether
requirements in the sense that it may result whether the parties favoring a denial of the the standards are technologically
in some further reduction in air pollution in waiver have shown that the factual feasible—Congress intended that the
California.8 circumstances exist in which Congress standards of EPA review of the State
This principle of narrow EPA review intended a denial of the waiver.13
decision to be a narrow one.’’ 17
has been upheld by the U.S. Court of In that decision, the court considered
Appeals for the District of Columbia the standards of proof under section 209 C. Deference to California
Circuit.9 ‘‘[T]he statute does not provide for the two findings related to granting In previous waiver decisions, EPA has
for any probing substantive review of a waiver for an ‘‘accompanying recognized that the intent of Congress in
the California standards by federal enforcement procedure.’’ Those findings creating a limited review based on
officials.’’ Ford Motor Co. v. EPA, 606 involve: (1) Whether the enforcement specifically listed criteria was to ensure
F.2d 1293, 1300 (D.C. Cir. 1979). Thus, procedures impact California’s prior that the federal government did not
EPA’s consideration of all the evidence protectiveness determination for the second-guess state policy choices. As
submitted concerning a waiver decision associated standards, and (2) whether the Agency explained in one prior
is circumscribed by its relevance to the procedures are consistent with waiver decision:
those questions that may be considered section 202(a). The principles set forth It is worth noting . . . I would feel
under section 209(b)(1). by the court are similarly applicable to constrained to approve a California approach
an EPA review of a request for a waiver to the problem which I might also feel unable
B. Burden and Standard of Proof to adopt at the federal level in my own
of preemption for a standard. The court
As the U.S. Court of Appeals for the instructed that ‘‘the standard of proof capacity as a regulator. . . . Since a
D.C. Circuit has made clear in MEMA I, must take account of the nature of the balancing of risks and costs against the
opponents of a waiver request by potential benefits from reduced emissions is
risk of error involved in any given a central policy decision for any regulatory
California bear the burden of showing decision, and it therefore varies with the agency under the statutory scheme outlined
that the statutory criteria for a denial of finding involved. We need not decide above, I believe I am required to give very
the request have been met: how this standard operates in every substantial deference to California’s
[T]he language of the statute and its waiver decision.’’ 14 judgments on this score.18
legislative history indicate that California’s With regard to the protectiveness Similarly, EPA has stated that the
regulations, and California’s determinations finding, the court upheld the text, structure, and history of the
that they must comply with the statute, when Administrator’s position that, to deny a California waiver provision clearly
presented to the Administrator are presumed waiver, there must be ‘‘clear and indicate both a congressional intent and
to satisfy the waiver requirements and that compelling evidence’’ to show that appropriate EPA practice of leaving the
the burden of proving otherwise is on
whoever attacks them. California must
proposed enforcement procedures decision on ‘‘ambiguous and
present its regulations and findings at the undermine the protectiveness of controversial matters of public policy’’
hearing and thereafter the parties opposing California’s standards.15 The court to California’s judgment.19 This
noted that this standard of proof also interpretation is supported by relevant
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8 ‘‘Waiver of Application of Clean Air Act to accords with the congressional intent to discussion in the House Committee
California State Standards,’’ 36 FR 17458 (Aug. 31, provide California with the broadest
1971). Note that the more stringent standard 16 Id.
expressed here, in 1971, was superseded by the 10 MEMA 17 See, e.g., ‘‘California State Motor Vehicle
I, note 19, at 1121.
1977 amendments to section 209, which established 11 Id. at 1126. Pollution Control Standards; Waiver of Federal
that California must determine that its standards Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103.
12 Id. at 1126.
are, in the aggregate, at least as protective of public
13 Id. at 1122.
health and welfare as applicable federal standards. 18 40FR 23102, 23103–04 (May 28, 1975).
9 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 14 Id. 19 40FR 23102, 23104 (May 28, 1975); 58 FR 4166
627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 15 Id. (January 13, 1993).
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ongoing air pollution problems.27 CARB There has been no evidence submitted with section 202(a) of the CAA. Under
asserted that ‘‘The geographical and to indicate that California’s compelling section 209(b)(1)(C) of the CAA, EPA
climatic conditions and the tremendous and extraordinary conditions do not must deny California’s waiver request if
growth in vehicle population and use continue to exist. California, EPA finds that California’s standards
that moved Congress to authorize particularly in the South Coast and San and accompanying enforcement
California to establish vehicle standards Joaquin Valley air basins, continues to procedures are not consistent with
in 1967 still exist today. EPA has long experience some of the worst air quality section 202(a). Section 202(a) requires
confirmed CARB’s judgment, on behalf in the nation, and many areas in that regulations ‘‘shall take effect after
of the State of California, on this California continue to be in non- such period as the Administrator finds
matter.’’ 28 In enacting the California attainment with national ambient air necessary to permit the development
Global Warming Solutions Act of 2006, quality standards for fine particulate and application of the relevant
the Legislature found and declared that: matter and ozone.30 As California has technology, considering the cost of
Global warming poses a serious threat to previously stated, ‘‘nothing in compliance within that time.’’
the economic well-being, public health, [California’s unique geographic and EPA has previously stated that the
natural resources, and the environment of climatic] conditions has changed to determination is limited to whether
California. The potential adverse impacts of warrant a change in this those opposed to the waiver have met
global warming include the exacerbation of determination.’’ 31 EPA agrees that the their burden of establishing that
air quality problems, a reduction in the California’s standards are
fundamental conditions that cause
quality and supply of water to the state from technologically infeasible, or that
the Sierra snowpack, a rise in sea levels California’s serious air pollution
problems continue to exist.32 Therefore, California’s test procedures impose
resulting in the displacement of thousands of
coastal businesses and residences, damage to EPA affirms California’s need for its requirements inconsistent with the
the marine ecosystems and the natural new motor vehicle emissions program federal test procedure. Infeasibility
environment, and an increase in the as a whole, to meet compelling and would be shown here by demonstrating
incidences of infectious diseases, asthma, extraordinary conditions. In addition, that there is inadequate lead time to
and other health-related problems.29 EPA notes the continued adverse permit the development of technology
impacts of California’s changing climate necessary to meet the California Phase
27 California Waiver Request Support Document,
(e.g. the increase in wildfires, increased 1 GHG Regulation, giving appropriate
at 31, referencing Resolution 13–50, dated
December 12, 2013 (see EPA–HQ–OAR–2016– threats to coastal developments and consideration to the cost of compliance
0179–0012). Resolution 13–50 also states ecosystems, etc.).33 within that time.34 California’s
‘‘WHEREAS, heavy-duty trucks, buses, and motor Based on the record before us, accompanying enforcement procedures
homes emitted 23 percent of greenhouse gas (GHG) would also be inconsistent with section
emissions from on-road vehicles and 8 percent of including EPA’s prior waiver decisions,
GHG emissions from all sources in California in EPA is unable to identify any change in 202(a) if the federal and California test
2010. Resolution 13–50 also states ‘‘WHEREAS, in circumstances or evidence to suggest procedures conflicted, i.e., if
recognition of the devastating impacts of climate that the conditions that Congress manufacturers would be unable to meet
change emissions on California, Governor both the California and federal test
Schwarzenegger, in June 2005, enacted Executive identified as giving rise to serious air
Order S–3–05 which established the following GHG quality problems in California no longer requirements with the same test
emission targets: By 2010, reduce GHG emissions to exist. Therefore, EPA cannot find that vehicle.35
2000 levels; by 2020, reduce GHG emissions to 1990
California does not need its state Regarding test procedure conflict,
levels; and by 2050, reduce GHG emissions 80 CARB notes that it is not aware of any
percent below 1990 levels. In addition, the South standards, including greenhouse gas
Coast and San Joaquin Valley air basins continue emission standards, to meet compelling instances in which a manufacturer is
to experience some of the worst air quality in the and extraordinary conditions in precluded from conducting one set of
nation, and many areas in California continue to be
California. tests on a heavy-duty engine or a heavy-
in nonattainment for the national ambient air duty vehicle to determine compliance
quality standards for particulate matter and ozone C. Consistency With Section 202(a)
(81 FR 78149, 78153, November 7, 2016). To with both California and federal GHG
address this issue, for example, California’s heavy- For the third and final criterion, EPA requirements. The regulation’s ‘‘deemed
duty program also includes an optional low NOX evaluates the program for consistency to comply’’ provisions ensure that
provision, and CARB states ‘‘Because the proposed engine and vehicle manufacturers can
regulation for Optional Low NOX emissions
standards is optional, the emission benefits from effects of climate change on public health.’’ In use federal test results to demonstrate
that proposal will depend on the level of addition, on April 29, 2015, California Governor compliance with California’s GHG
participation by engine manufacturers. Staff Edmund Brown issued Executive Order B–30–15 emission standards through the 2022
estimated NOX emission benefits for two different which states in part ‘‘WHEREAS climate change
poses an ever-growing threat to the well-being, model year. CARB also notes that no test
scenarios based on low and high participation rates
from manufacturers and estimated NOX emission public health, natural resources, economy, and the procedure inconsistencies exist for
benefits of 0.6 to 1.2 tons per day (TPD) statewide environment of California, including loss of those manufactures that elect not to
in 2020, and 3.3 to 6.9 TPD in 2035.’’ CARB Initial snowpack, drought, sea level rise, more frequent utilize the deemed to comply
Statement of Reasons, December 12, 2013, EPA– and intense wildfires, heat waves, more severe
smog, and harm to natural and working lands, and provisions, or for 2023 and subsequent
HQ–OAR–2016–0179–0003.
28 California Waiver Request Support Document, these effects are already being felt in the state.’’ model year engines and vehicles
at 33 (referencing 70 FR 50322, 50323 (August 26,
30 74 FR 32744, 32762–63 (July 8, 2009). because the California GHG emission
2005); 74 FR 32744, 32762–763 (July 9, 2009); 79 31 74 FR 32744, 32762 (July 8, 2009); 76 FR
standards and associated test
FR 46256, 46262 (August 7, 2014). 77515, 77518 (December 13, 2011). procedures for new medium- and heavy-
29 Id. at 33. The Global Warming Solutions Act 32 In addition to the variety of human health
impacts associated with high air temperatures (e.g.,
duty engines and new medium- and
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also sets for the California Legislature’s finding and
declaration that ‘‘Continuing to reduce greenhouse heat stroke and dehydration, and effects on people’s heavy-duty vehicles are identical to
gas emissions is critical for the protection of all cardiovascular, respiratory, and nervous systems), corresponding federal GHG emission
areas of the state, but especially for the state’s most warming can also increase the formation of ground- standards and test procedures.36 For the
disadvantaged communities, as those communities level ozone, a component of smog that can
contribute to respiratory problems. See ‘‘What
reasons set forth above, and because
are affected first, and, most frequently, by the
adverse impacts of climate change, including an Climate Change Means for California,’’ August
34 See, e.g., 38 F.R 30136 (November 1, 1973) and
increased frequency of extreme weather events, 2016, EPA 430–F–16–007 at https://www.epa.gov/
such as drought, heat, and flooding. The state’s sites/production/files/2016–09/documents/climate- 40 FR 30311 (July 18, 1975).
most disadvantaged communities also are change-ca.pdf. 35 See, e.g., 43 FR 32182 (July 25, 1978).
disproportionately impacted by the deleterious 33 Id. 36 California Waiver Support Document at 44.
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![Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices 95987
there is no evidence in the record or these reasons, EPA determines and finds by EPA ICR No. 2472.02 and OMB
other information that EPA is aware of, that this is a final action of national Control No. 2070–0191, represents the
EPA cannot find that CARB’s Phase I applicability, and also a final action of renewal of an existing ICR that is
GHG Regulation is inconsistent with nationwide scope or effect for purposes scheduled to expire on August 31, 2017.
section 202(a) based upon test of section 307(b)(1) of the Act. Pursuant Before submitting the ICR to OMB for
procedure inconsistency. to section 307(b)(1) of the Act, judicial review and approval, EPA is soliciting
In addition, EPA did not receive any review of this final action may be sought comments on specific aspects of the
comments arguing that the California only in the United States Court of proposed information collection that is
Phase 1 GHG Regulation was Appeals for the District of Columbia summarized in this document. The ICR
technologically infeasible or that the Circuit. Petitions for review must be and accompanying material are
cost of compliance would be excessive, filed by February 27, 2017. Judicial available in the docket for public review
such that California’s standards might review of this final action may not be and comment.
be inconsistent with section 202(a).37 In obtained in subsequent enforcement DATES: Comments must be received on
EPA’s review of CARB’s Phase 1 GHG proceedings, pursuant to section or before February 27, 2017.
Regulation, we likewise cannot identify 307(b)(2) of the Act.
any requirements that appear ADDRESSES: Submit your comments,
technologically infeasible or excessively V. Statutory and Executive Order identified by docket identification (ID)
expensive for manufacturers to Reviews number EPA–HQ–OPP–2016–0506, by
implement within the timeframes As with past waiver and authorization one of the following methods:
provided.38 EPA therefore cannot find decisions, this action is not a rule as • Federal eRulemaking Portal: http://
that the California Phase 1 GHG defined by Executive Order 12866. www.regulations.gov. Follow the online
Regulation does not provide adequate Therefore, it is exempt from review by instructions for submitting comments.
lead time or is otherwise not technically the Office of Management and Budget as Do not submit electronically any
feasible. required for rules and regulations by information you consider to be
We therefore cannot find that the Executive Order 12866. Confidential Business Information (CBI)
California Phase 1 GHG Regulation that In addition, this action is not a rule or other information whose disclosure is
we analyzed under the waiver criteria is as defined in the Regulatory Flexibility restricted by statute.
inconsistent with section 202(a). Act, 5 U.S.C. 601(2). Therefore, EPA has • Mail: OPP Docket, Environmental
Having found that the California not prepared a supporting regulatory Protection Agency Docket Center (EPA/
Phase 1 GHG Regulation satisfies each flexibility analysis addressing the DC), (28221T), 1200 Pennsylvania Ave.
of the criteria for a waiver, and having impact of this action on small business NW., Washington, DC 20460–0001.
received no evidence to contradict this entities. • Hand Delivery: To make special
finding, we cannot deny a waiver for the Further, the Congressional Review arrangements for hand delivery or
regulation. Act, 5 U.S.C. 801, et seq., as added by delivery of boxed information, please
IV. Decision the Small Business Regulatory follow the instructions at http://
The Administrator has delegated the Enforcement Fairness Act of 1996, does www.epa.gov/dockets/contacts.html.
authority to grant California section not apply because this action is not a Additional instructions on
209(b) waivers to the Assistant rule for purposes of 5 U.S.C. 804(3). commenting or visiting the docket,
Administrator for Air and Radiation. Dated: December 22, 2016. along with more information about
After evaluating CARB’s California Janet G. McCabe, dockets generally, is available at http://
Phase 1 GHG Regulation and CARB’s Acting Assistant Administrator, Office of Air www.epa.gov/dockets.
submissions for EPA review, EPA is and Radiation. FOR FURTHER INFORMATION CONTACT:
hereby granting a waiver for the [FR Doc. 2016–31646 Filed 12–28–16; 8:45 am] Ramé Cromwell, Field and External
California Phase 1 GHG Regulation. BILLING CODE 6560–50–P Affairs Division (7506P), Office of
This decision will affect persons in Pesticide Programs, Environmental
California and those manufacturers and/ Protection Agency, 1200 Pennsylvania
or owners/operators nationwide who ENVIRONMENTAL PROTECTION Ave. NW., Washington, DC 20460–0001;
must comply with California’s AGENCY telephone number (703) 308–9068;
requirements. In addition, because other email address: cromwell.rame@epa.gov.
states may adopt California’s standards [EPA–HQ–OPP–2016–0506; FRL–9957–04]
for which a section 209(b) waiver has SUPPLEMENTARY INFORMATION:
been granted under section 177 of the Agency Information Collection I. What information is EPA
Act if certain criteria are met, this Activities; Proposed Renewal of an particularly interested in?
decision would also affect those states Existing Collection (EPA ICR No. Pursuant to PRA section 3506(c)(2)(A)
and those persons in such states. For 2472.02 and OMB Control No. 2070– (44 U.S.C. 3506(c)(2)(A)), EPA
0191); Comment Request specifically solicits comments and
37 See, e.g., 78 FR 2134 (Jan. 9, 2013), 47 FR 7306,
AGENCY: Environmental Protection information to enable it to:
7309 (Feb. 18, 1982), 43 FR 25735 (Jun. 17, 1978),
and 46 FR 26371, 26373 (May 12, 1981). Agency (EPA). 1. Evaluate whether the proposed
38 California Waiver Support Document at 34–43.
ACTION: Notice.
collection of information is necessary
for the proper performance of the
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For example, both CARB and EPA identified a host
of technologies suitable for compliance with SUMMARY: In compliance with the functions of the Agency, including
medium- and heavy-duty diesel engine CO2 whether the information will have
standards, and for engines in combination tractors
Paperwork Reduction Act (PRA), this
and vocational vehicles. In addition, CARB and document announces that EPA is practical utility.
EPA identified a variety of compliance strategy planning to submit an Information 2. Evaluate the accuracy of the
technologies for heavy-duty gasoline engine CO2 Collection Request (ICR) to the Office of Agency’s estimates of the burden of the
standards. EPA and CARB also identified a number
of commercially available technologies that will
Management and Budget (OMB). The proposed collection of information,
enable 2014 through 2018 MY heavy-duty pick-up ICR, entitled: ‘‘Pesticide Spray Drift including the validity of the
truck and van (‘‘PUV’’) GHG emission standards. Reduction Technologies’’ and identified methodology and assumptions used.
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Document Created: 2016-12-29 01:58:16
Document Modified: 2016-12-29 01:58:16
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of decision. | |
| Dates | Petitions for review must be filed by February 27, 2017. | |
| 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] | |
| FR Citation | 81 FR 95982 |
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