82 FR 4867 - California State Motor Vehicle Pollution Control Standards; Amendments to On-Highway Heavy-Duty Vehicle In-Use Compliance Program, Amendments to 2007 and Subsequent Model Year On-Highway Heavy-Duty Engines and Vehicles, and Amendments to Truck Requirements; Notice of Decision
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 10 (January 17, 2017)
Federal Register Volume 82, Issue 10 (January 17, 2017)
| Page Range | 4867-4873 | |
| FR Document | 2017-00940 |
[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)] [Notices] [Pages 4867-4873] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-00940] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2016-0017; FRL9958-38-OAR] California State Motor Vehicle Pollution Control Standards; Amendments to On-Highway Heavy-Duty Vehicle In-Use Compliance Program, Amendments to 2007 and Subsequent Model Year On-Highway Heavy-Duty Engines and Vehicles, and Amendments to Truck Requirements; Notice of Decision AGENCY: Environmental Protection Agency. 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 On-Highway Heavy-Duty Vehicle In-Use Compliance program (``In-Use Regulation''). EPA is also confirming that CARB's amendments to its 2007 and Subsequent Model Year On-Highway Heavy-Duty Engines and Vehicles regulation (``2007 Amendments'') and CARB's amendments to its Truck Idling requirements (``Truck Idling Amendments'') are within the scope of previous waivers issued by EPA. The In-Use Regulation establishes a manufacturer-run in-use compliance program using portable emission measurement systems (``PEMS''). The 2007 Amendments specify the NOX emission standard for heavy- and medium-duty diesel engines to two significant figures and provide manufacturers the option to certify chassis-certified diesel vehicles within the phase-in compliance provisions of the 2007 and Subsequent Model Year On-Highway Heavy-Duty Engines and Vehicles regulation. The Truck Idling Amendments exempt armored cars and workover rigs (a mobile self-propelled rig used to perform remedial operations on producing oil or gas wells to restore or increase well production) from the new engine requirements of the preexisting California Truck Idling 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 March 20, 2017. ADDRESSES: EPA has established a docket for this action under Docket ID EPA-HQ-OAR-2016-0017. 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:// [[Page 4868]] www.regulations.gov. After opening the www.regulations.gov Web site, enter EPA-HQ-OAR-2016-0017 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 On August 19, 2005, EPA granted California a waiver of preemption pursuant to section 209(b) of the CAA, 42 U.S.C. 7543(b), for CARB's amendments to its heavy-duty diesel engine standards for 2007 and subsequent model year (MY) vehicles and engines and related test procedures, including not-to-exceed (``NTE'') and supplemental steady- state tests to determine compliance with applicable standards (``2007 California HDDE standards'').\1\ Those standards apply to all heavy- duty diesel engines, and align California's standards and test procedures with corresponding federal standards and test procedures. In 2010 EPA granted California a waiver of preemption for CARB's adoption of amendments applicable to 2008 and subsequent MY heavy-duty Otto- cycle engines.\2\ In 2005, CARB adopted truck idling requirements, including an element whereby new California-certified 2008 and subsequent MY on-road diesel engines in trucks with a gross vehicle weight rating (``GVWR'') greater than 14,000 pounds were required to be equipped with a system that automatically shuts down the engine after five minutes of continuous idling (``Truck Idling regulation''). In lieu of the automatic engine shutdown systems, manufacturers are allowed to optionally certify engines to a NOX idling emission standard. EPA granted a waiver for the Truck Idling regulation in 2012.\3\ --------------------------------------------------------------------------- \1\ 70 FR 50322 (August 26, 2005). \2\ 75 FR 70237 (November 17, 2010). \3\ 77 FR 9239 (February 16, 2012). --------------------------------------------------------------------------- CARB's In-Use Regulation establishes a manufacturer-run in-use compliance program that is largely identical to EPA's previously adopted heavy-duty in-use testing program (``HDIUT program'') originally adopted in 2005.\4\ The regulation applies to 2007 and subsequent MY engine-dynamometer certified heavy-duty diesel engines installed in a motor vehicle with GVWR greater than 8,500 pounds. CARB's initial In-Use Regulation, adopted in 2006, included requirements for manufacturers screening test vehicles with portable emission measurement systems (PEMS) and testing the vehicles by operating them over typical driving routes, and under the same vehicle loads and environmental conditions that the vehicles routinely encounter. The in-use compliance program is comprised of two phases. The first phase, Phase 1, involves testing a designated engine family for conformity with the applicable NTE requirements. In the second phase, if the engine family does not pass the Phase 1 requirements then testing, under more narrowly defined test conditions, may be required to target specific noncomplying operating conditions. The initial regulation incorporated temporary measurement allowances when testing for compliance using PEMS. In 2007, CARB amended the In-Use Regulation to set forth new measurement allowances for gaseous emissions.\5\ In 2011, CARB approved additional amendments to the In-Use Requirements to establish a new particulate matter (``PM'') measurement allowance. EPA similarly amended its federal HDIUT program in 2010 to incorporate this same measurement allowance.\6\ --------------------------------------------------------------------------- \4\ 70 FR 34594 (June 14, 2005). \5\ See the California Air Resources Board's Waiver Request Support Document (``Waiver Support Document''), dated December 31, 2015 at EPA-HQ-OAR-2016-0017-0018, at 7-8. \6\ Waiver Support Document at 9, citing 75 FR 68448 (November 8, 2010). --------------------------------------------------------------------------- CARB initially adopted the 2007 California HDDE standards in 2001 to fully align California's NOX emission standards for 2007 and subsequent MY HDDEs and medium-duty diesel engines (``MDDEs'') certified to ultra-low-emission vehicle (``ULEV'') standards to the corresponding federal NOX emission standard of 0.20 gram per brake-horsepower hour (g/bhp-hr) (two significant figures). CARB also established a more stringent NOX standard for MDDEs certified to optional ultra-low-emission vehicle (``SULEV'') emission standards of 0.10 g/bhp-hr). CARB's 2007 Amendments clarify that the NOX ULEV emission standard for HDDEs is the same as the federal NOX emission standard of 0.20 g/bhp-hr and amended the NOX SULEV standard to 0.10 g/bhp-hr (CARB had inadvertently specified these NOX emission standards to only one significant figure (0.2 and 0.1 g/bhp-hr r, respectively)). CARB had also inadvertently failed to include a provision that provided manufacturers the option to include chassis-certified 2007 through 2009 MY heavy-duty diesel vehicles under 14,000 pounds GVWR within the phase-in compliance provision of the 2007 HDDE standards. The 2007 Amendments incorporate this optional provision. In addition, the 2007 Amendments incorporate the flexibility provided by EPA in 2006, whereby manufacturers may apply multiplicative deterioration factors if, based on good engineering judgment, multiplicative deterioration factors are more appropriate for a particular engine family (as opposed to an adjustment by the addition of appropriate deterioration factors).\7\ --------------------------------------------------------------------------- \7\ Id. at 11, citing 71 FR 51481 (August 30, 2006). --------------------------------------------------------------------------- In 2008 CARB adopted amendments to the new engine requirements within the Truck Idling regulation to address specific issues regarding armored cars and workover rigs. Specifically, the Truck Idling Amendments provide that new 2008 and subsequent MY heavy-duty diesel engines used in armored cars and workover rigs are exempt from the new engine idling requirements. In addition, in 2011 CARB provided additional regulatory clarification of the exemption.\8\ --------------------------------------------------------------------------- \8\ Id. --------------------------------------------------------------------------- By letter dated January 27, 2016, 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 In-Use Regulation. CARB's submission provided analysis and evidence to support its finding that the In-Use Regulation satisfies the CAA section 209(b) criteria and that a waiver of preemption should be granted. CARB's request also sought confirmation that its 2007 Amendments and the Truck Idling Amendments are within the scope of waivers of preemption previously granted by EPA.\9\ --------------------------------------------------------------------------- \9\ Id. --------------------------------------------------------------------------- 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 [[Page 4869]] 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.\10\ --------------------------------------------------------------------------- \10\ 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.\11\ 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.\12\ --------------------------------------------------------------------------- \11\ 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). \12\ CAA Sec. 209(b)(1). 42 U.S.C. 7543(b)(1). --------------------------------------------------------------------------- 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.\13\ --------------------------------------------------------------------------- \13\ ``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.\14\ ``[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). --------------------------------------------------------------------------- \14\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) (``MEMA I''). --------------------------------------------------------------------------- B. Within-the-Scope Determinations If California amends regulations that have been previously authorized by EPA, California may ask EPA to determine that the amendments are within the scope of the earlier authorization. A within- the-scope determination for such amendments is permissible without a full authorization review if three conditions are met. First, the amended regulations must not undermine California's previous determination that its standards, in the aggregate, are as protective of public health and welfare as applicable federal standards. Second, the amended regulations must not affect consistency with section 209 of the Act, following the same criteria discussed above in the context of full authorizations. Third, the amended regulations must not raise any new issues affecting EPA's prior waiver or authorization decisions.\15\ --------------------------------------------------------------------------- \15\ See ``California State Motor Vehicle Pollution Control Standards; Amendments Within the Scope of Previous Waiver of Federal Preemption,'' 46 FR 36742 (July 15, 1981). --------------------------------------------------------------------------- C. 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.\16\ --------------------------------------------------------------------------- \16\ 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.' '' \17\ Therefore, the Administrator's burden is to act ``reasonably.'' \18\ --------------------------------------------------------------------------- \17\ Id. at 1126. \18\ 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.\19\ --------------------------------------------------------------------------- \19\ 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.'' \20\ --------------------------------------------------------------------------- \20\ 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.\21\ The court noted that this standard of proof also accords with the congressional intent to provide California with the broadest [[Page 4870]] possible discretion in setting regulations it finds protective of the public health and welfare.\22\ --------------------------------------------------------------------------- \21\ Id. \22\ 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.'' \23\ --------------------------------------------------------------------------- \23\ See, e.g., ``California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 28, 1975), at 23103. --------------------------------------------------------------------------- D. 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.\24\ --------------------------------------------------------------------------- \24\ 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.\25\ 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.\26\ --------------------------------------------------------------------------- \25\ 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13, 1993). \26\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977)). --------------------------------------------------------------------------- E. 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.\27\ In that notice, EPA requested comments on whether the 2007 Amendments and the Truck Idling Amendments, each individually assessed, should be considered under the within-the-scope analysis or whether they should be considered under the full waiver criteria. For the In-Use Regulation, and to the degree the 2007 Amendments or the Truck Idling Amendments should not be considered under the within-the-scope criteria, EPA sought comment 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. --------------------------------------------------------------------------- \27\ 81 FR 52678 (August 9, 2016). --------------------------------------------------------------------------- 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 Analysis EPA initially evaluates California's 2007 Amendments and Truck Idling Amendments by application of our traditional within-the-scope analysis, as CARB requested. If we determine that CARB's request does not meet the requirements for a within-the-scope determination, we then evaluate the request based on a full authorization analysis. In determining whether amendments can be viewed as within the scope of previous waivers, EPA looks at whether CARB's revision is either limited to minor technical amendments to previously waived regulations or modifying regulations in order to provide additional compliance flexibility without significantly reducing the overall stringency of previously waived regulations. The amendments at issue in this request provide regulatory clarity and corrections, and provide limited exemptions in order to provide for compliance flexibility EPA sought comment on a range of issues, including those applicable to a within-the-scope analysis as well as those applicable to a full authorization analysis. No party submitted a comment that California's 2007 Amendments or Truck Idling Amendments require a full authorization analysis. Given the lack of comments on this issue, and EPA's assessment of the nature of the amendments, I will evaluate California's 2007 amendments and Truck Idling Amendments by application of the traditional within-the-scope analysis, as CARB requested. As noted above, EPA can confirm that the amended regulations are within the scope of a previously granted waiver of preemption if three conditions are met. First, the amended regulations do not undermine California's determination that its standards, in the aggregate, are as protective of public health and welfare as applicable federal standards. Second, the amended regulations do not affect consistency with section 202(a) of the Act. Third, the amended regulations do not raise any ``new issues'' affecting EPA's prior authorizations. B. Full Authorization Analysis CARB's waiver request also included the In-Use Regulation. EPA must grant a waiver for the In-Use Regulation unless the Administrator finds: (1) California's determination that its standards will be, in the aggregate, as protective of public health and welfare as applicable federal standards is arbitrary and capricious; (2) California does not need such California standards to meet compelling and extraordinary conditions; or (3) California's standards and accompanying enforcement procedures are not consistent with this section. EPA's evaluation of the 2007 Amendments, the Truck Idling Amendments, and the In-use Regulation is set forth below. Because of the similarity of the within-the-scope criteria and the full waiver criteria, a discussion of all three sets of respective amendments take place within each waiver criterion. To the extent that the [[Page 4871]] criteria are applied uniquely, or that additional criteria apply under either the within-the-scope analysis or the full waiver analysis, such application is also addressed below. C. 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.\28\ CARB notes that in its initial adoption and amendments to the In- Use Regulation in 2006, 2007, and 2011, the CARB Board approved Resolutions 06-27, 07-56 and 11-19 in which it declared: 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.\29\ --------------------------------------------------------------------------- \28\ 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 (January. 9, 2013). \29\ Waiver Support Document at 17. See EPA-HQ-OAR-2016-0017- 0027, EPA-HQ-OAR-2016-0017-0047, and EPA-HQ-OAR-2016-0017-0056. CARB also notes that EPA has previously granted California a waiver for California's 2007 California HDDE standards (which included the NTE test procedures), and the addition of the In-Use Regulation will help ensure that the emission control systems on HDDEs are properly designed and sufficiently durable to ensure compliance with the emission requirements during their useful life. CARB further noted that the In- Use Regulation provisions are ``essentially identical to the requirements of EPA's corresponding HDIUT program.\30\ CARB also notes that the 2007 Amendments in no way undermine the stringency of the underlying exhaust emission standards or the associated test procedures (which is the criterion under the within-the-scope analysis), but instead ensure that California's standards remain as, or more protective than, applicable federal standards.\31\ Similarly, CARB notes that with regard to the Truck Idling Amendments that EPA's regulations do not require new heavy-duty diesel engines to be equipped with idling shutdown systems or to optionally comply with NOX idling emission standards.\32\ --------------------------------------------------------------------------- \30\ Id. \31\ Id. at 21. \32\ Id. at 24, citing Resolution 11-19. --------------------------------------------------------------------------- As it is clear that California's standards are at least as protective of public health and welfare as applicable federal standards, and that no evidence is in the record suggesting otherwise (and EPA is not otherwise aware of any information), I find that California's respective protectiveness determinations are not arbitrary and capricious for purposes of the In-Use Regulation, the 2007 Amendments, and the Truck Idling Amendments. D. 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 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\ --------------------------------------------------------------------------- \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. See also 79 FR 46256, 46261 (August 7, 2014). --------------------------------------------------------------------------- In conjunction with the initial adoption and subsequent amendments of the In-Use Regulation in 2006, 2007, and 2011, respectively (see Resolutions 06-27, 07-56, and 11-19 noted above), the CARB's Board confirmed California's longstanding position that California continues to need its own motor vehicle emission program to meet serious air pollution problems. CARB notes that the geographical and climatic conditions and the tremendous growth in vehicle population and use that moved Congress to authorize California to establish separate vehicle standards in 1967 still exist today.\35\ ``Nothing in these conditions has changed to warrant a change in EPA's confirmation, 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\ --------------------------------------------------------------------------- \35\ Waiver Support Request Support Document at 18. \36\ Id. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \37\ 74 FR 32744, 32762-63 (July 8, 2009), 76 FR 77515, 77518 (December 13, 2011), 81 FR 95982 (December 29, 2016). EPA continually evaluates the air quality conditions in the United States, including California. California continues to experience some of the worst air quality in the country and continues to be in nonattainment with National Ambient Air Quality Standards for fine particulate matter and ozone, see ``Notice of Availability of the Environmental Protection Agency's Preliminary Interstate Ozone Transport Modeling Data for the 2015 Ozone National Ambient Air Quality Standard (NAAQS)'' at EPA-HQ-OAR-2016-0751. \38\ Id. --------------------------------------------------------------------------- Based on the record before us, including EPA's prior waiver decisions, I am 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 its In-Use [[Page 4872]] Regulation, to meet compelling and extraordinary conditions in California. E. 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 In-Use Amendments, the 2007 Amendments, or the Truck Idling Amendments that are the subject of 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\ --------------------------------------------------------------------------- \39\ See, e.g., 38 FR 30136 (November 1, 1973) and 40 FR 30311 (July 18, 1975). \40\ See, e.g., 43 FR 32182 (July 25, 1978). --------------------------------------------------------------------------- Regarding test procedure conflict, CARB notes both EPA and CARB utilize essentially identical test procedures in certifying 2007 and subsequent MY heavy-duty engines and that the 2007 Amendments also do not preclude manufacturers from conducting one set of tests on a heavy- duty engines or vehicle to determine compliance with both the California and federal requirements.\41\ For the reasons set forth above, and because there is no evidence in the record or other information that EPA is aware of, I cannot find that CARB's In-Use Compliance Regulation, 2007 Amendments, and Truck Idling Amendments are inconsistent with section 202(a) based upon test procedure inconsistency. --------------------------------------------------------------------------- \41\ Id. at 20, 22. --------------------------------------------------------------------------- In addition, EPA did not receive any comments arguing that the CARB's In-Use Regulation, 2007 Amendments, and Truck Idling 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).\42\ In EPA's review of CARB's In-Use Regulation, I find that CARB's statements about the capability of PEMS technology to measure gaseous pollutants as well as PM emissions is accurate.\43\ With regard to the 2007 Amendments, I find that the amendments do not raise any new issues regarding technological feasibility given that the amendments regarding how the NOX standard is expressed is a regulatory clarification and the amendment regarding the new option for certain chassis-certified 2007 through 2009 model year heavy-duty vehicles provides additional compliance flexibility. Similarly, the Truck Idling Amendments merely provide compliance flexibility to a previously waived program by setting forth limited compliance exemptions (i.e., the exemptions for armored vehicles and workover rigs). --------------------------------------------------------------------------- \42\ See, e.g., 78 FR 2134 (January 9, 2013), 47 FR 7306, 7309 (February 18, 1982), 43 FR 25735 (June 17, 1978), and 46 FR 26371, 26373 (May 12, 1981). \43\ Waiver Support Document at 19 (CARB explains that several PEMS capable of measuring gaseous emissions are commercially available and that the further development needed (at the time of CARB's initial adoption of the In-Use Regulation) for PM emissions monitoring by PEMS has been resolved. --------------------------------------------------------------------------- I therefore cannot find that California standards, which include the CARB's In-Use Regulation, 2007 Amendments, and Truck Idling Amendments are inconsistent with section 202(a). F. New Issues EPA has stated in the past that if California promulgates amendments that raise new issues affecting previously granted waivers, we would not confirm that those amendments are within the scope of previous waivers.\44\ I do not believe that either the 2007 Amendments or the Truck Idling Amendments raise any new issues with respect to our prior waivers governing their underlying regulations. Moreover, EPA did not receive any comments that CARB's 2007 Amendments or Truck Idling Amendments raised new issues affecting the previously granted waivers. Therefore, I cannot find that CARB's 2007 Amendments and Truck Idling Amendments raise new issues and consequently, cannot deny CARB's within-the-scope requests based on this criterion. --------------------------------------------------------------------------- \44\ See, e.g., 78 FR 38970 (June 28, 2013), 75 FR 8056 (February 23, 2010), and 70 FR 22034 (April 28, 2005). --------------------------------------------------------------------------- IV. Decision After evaluating CARB's In-Use Regulation and CARB's submissions for EPA review, I am hereby granting a waiver for the In-Use Regulation. After evaluating CARB's 2007 Amendments and Truck Idling Amendments and CARB's submissions for EPA review, I am hereby confirming that such amendments are within the scope of prior EPA waivers. 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 March 20, 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). [[Page 4873]] Dated: January 9, 2017. Gina McCarthy, Administrator. [FR Doc. 2017-00940 Filed 1-13-17; 8:45 am] BILLING CODE 6560-50-P
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EPA–HQ–OGC–2016–0719) contains a ensures that you can be identified as the program (‘‘In-Use Regulation’’). EPA is
copy of the proposed consent decree. submitter of the comment and allows also confirming that CARB’s
The official public docket is available EPA to contact you in case EPA cannot amendments to its 2007 and Subsequent
for public viewing at the Office of read your comment due to technical Model Year On-Highway Heavy-Duty
Environmental Information (OEI) Docket difficulties or needs further information Engines and Vehicles regulation (‘‘2007
in the EPA Docket Center, EPA West, on the substance of your comment. Any Amendments’’) and CARB’s
Room 3334, 1301 Constitution Ave. identifying or contact information amendments to its Truck Idling
NW., Washington, DC. The EPA Docket provided in the body of a comment will requirements (‘‘Truck Idling
Center Public Reading Room is open be included as part of the comment that Amendments’’) are within the scope of
from 8:30 a.m. to 4:30 p.m., Monday is placed in the official public docket, previous waivers issued by EPA. The In-
through Friday, excluding legal and made available in EPA’s electronic Use Regulation establishes a
holidays. The telephone number for the public docket. If EPA cannot read your manufacturer-run in-use compliance
Public Reading Room is (202) 566–1744, comment due to technical difficulties program using portable emission
and the telephone number for the OEI and cannot contact you for clarification, measurement systems (‘‘PEMS’’). The
Docket is (202) 566–1752. EPA may not be able to consider your 2007 Amendments specify the NOX
An electronic version of the public comment. emission standard for heavy- and
docket is available through Use of the www.regulations.gov Web medium-duty diesel engines to two
www.regulations.gov. You may use site to submit comments to EPA significant figures and provide
www.regulations.gov to submit or view electronically is EPA’s preferred method manufacturers the option to certify
public comments, access the index for receiving comments. The electronic chassis-certified diesel vehicles within
listing of the contents of the official public docket system is an ‘‘anonymous the phase-in compliance provisions of
public docket, and to access those access’’ system, which means EPA will the 2007 and Subsequent Model Year
documents in the public docket that are not know your identity, email address, On-Highway Heavy-Duty Engines and
available electronically. Once in the or other contact information unless you Vehicles regulation. The Truck Idling
system, key in the appropriate docket provide it in the body of your comment. Amendments exempt armored cars and
identification number then select In contrast to EPA’s electronic public workover rigs (a mobile self-propelled
‘‘search’’. docket, EPA’s electronic mail (email) rig used to perform remedial operations
It is important to note that EPA’s system is not an ‘‘anonymous access’’ on producing oil or gas wells to restore
policy is that public comments, whether system. If you send an email comment or increase well production) from the
submitted electronically or in paper, directly to the Docket without going new engine requirements of the
will be made available for public through www.regulations.gov, your preexisting California Truck Idling
viewing online at www.regulations.gov email address is automatically captured regulation. This decision is issued
without change, unless the comment under the authority of the Clean Air Act
and included as part of the comment
contains copyrighted material, CBI, or (‘‘CAA’’ or ‘‘the Act’’).
that is placed in the official public
other information whose disclosure is
docket, and made available in EPA’s DATES: Petitions for review must be filed
restricted by statute. Information
electronic public docket. by March 20, 2017.
claimed as CBI and other information
whose disclosure is restricted by statute Dated: January 6, 2017. ADDRESSES: EPA has established a
is not included in the official public Lorie J. Schmidt, docket for this action under Docket ID
docket or in the electronic public Associate General Counsel. EPA–HQ–OAR–2016–0017. All
docket. EPA’s policy is that copyrighted [FR Doc. 2017–00942 Filed 1–13–17; 8:45 am]
documents relied upon in making this
material, including copyrighted material decision, including those submitted to
BILLING CODE 6560–50–P
contained in a public comment, will not EPA by CARB, are contained in the
be placed in EPA’s electronic public public docket. Publicly available docket
docket but will be available only in ENVIRONMENTAL PROTECTION materials are available either
printed, paper form in the official public AGENCY electronically through
docket. Although not all docket www.regulations.gov or in hard copy at
[EPA–HQ–OAR–2016–0017; FRL9958–38– the Air and Radiation Docket in the EPA
materials may be available OAR]
electronically, you may still access any Headquarters Library, EPA West
of the publicly available docket Building, Room 3334, 1301 Constitution
California State Motor Vehicle
materials through the EPA Docket Avenue NW., Washington, DC. The
Pollution Control Standards;
Center. Public Reading Room is open to the
Amendments to On-Highway Heavy-
public on all federal government
B. How and to whom do I submit Duty Vehicle In-Use Compliance
working days from 8:30 a.m. to 4:30
comments? Program, Amendments to 2007 and
p.m.; generally, it is open Monday
Subsequent Model Year On-Highway
You may submit comments as through Friday, excluding holidays. The
Heavy-Duty Engines and Vehicles, and
provided in the ADDRESSES section. telephone number for the Reading Room
Amendments to Truck Requirements;
Please ensure that your comments are is (202) 566–1744. The Air and
Notice of Decision
submitted within the specified comment Radiation Docket and Information
period. Comments received after the AGENCY: Environmental Protection Center’s Web site is http://www.epa.gov/
close of the comment period will be Agency. oar/docket.html. The email address for
the Air and Radiation Docket is: a-and-
sradovich on DSK3GMQ082PROD with NOTICES
marked ‘‘late.’’ EPA is not required to ACTION: Notice of decision.
consider these late comments. r-docket@epa.gov, the telephone
If you submit an electronic comment, SUMMARY: The Environmental Protection number is (202) 566–1742, and the fax
EPA recommends that you include your Agency (‘‘EPA’’) is granting the number is (202) 566–9744. An
name, mailing address, and an email California Air Resources Board’s electronic version of the public docket
address or other contact information in (‘‘CARB’s’’) request for a waiver of Clean is available through the federal
the body of your comment and with any Air Act preemption for its On-Highway government’s electronic public docket
disk or CD ROM you submit. This Heavy-Duty Vehicle In-Use Compliance and comment system at http://
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standard relating to the control of emissions in some further reduction in air pollution in the waiver request bear the burden of
from new motor vehicles or new motor California.13 persuading the Administrator that the waiver
vehicle engines subject to this part. No State request should be denied.16
This principle of narrow EPA review
shall require certification, inspection or any has been upheld by the U.S. Court of The Administrator’s burden, on the
other approval relating to the control of other hand, is to make a reasonable
Appeals for the District of Columbia
emissions from any new motor vehicle or evaluation of the information in the
Circuit.14 ‘‘[T]he statute does not
new motor vehicle engine as condition
provide for any probing substantive record in coming to the waiver decision.
precedent to the initial retail sale, titling (if
any), or registration of such motor vehicle, review of the California standards by As the court in MEMA I stated: ‘‘here,
motor vehicle engine, or equipment.10 federal officials.’’ Ford Motor Co. v. too, if the Administrator ignores
EPA, 606 F.2d 1293, 1300 (D.C. Cir. evidence demonstrating that the waiver
Section 209(b)(1) of the Act requires 1979). Thus, EPA’s consideration of all should not be granted, or if he seeks to
the Administrator, after an opportunity the evidence submitted concerning a overcome that evidence with
for public hearing, to waive application waiver decision is circumscribed by its unsupported assumptions of his own,
of the prohibitions of section 209(a) for relevance to those questions that may be he runs the risk of having his waiver
any state that has adopted standards considered under section 209(b)(1). decision set aside as ‘arbitrary and
(other than crankcase emission capricious.’ ’’ 17 Therefore, the
B. Within-the-Scope Determinations
standards) for the control of emissions Administrator’s burden is to act
from new motor vehicles or new motor If California amends regulations that ‘‘reasonably.’’ 18
vehicle engines prior to March 30, 1966, have been previously authorized by With regard to the standard of proof,
if the state determines that its state EPA, California may ask EPA to the court in MEMA I explained that the
standards will be, in the aggregate, at determine that the amendments are Administrator’s role in a section 209
least as protective of public health and within the scope of the earlier proceeding is to:
welfare as applicable federal authorization. A within-the-scope
[. . .]consider all evidence that passes the
standards.11 However, no such waiver determination for such amendments is threshold test of materiality and . . .
shall be granted if the Administrator permissible without a full authorization thereafter assess such material evidence
finds that: (A) The protectiveness review if three conditions are met. First, against a standard of proof to determine
determination of the state is arbitrary the amended regulations must not whether the parties favoring a denial of the
and capricious; (B) the state does not undermine California’s previous waiver have shown that the factual
need such state standards to meet determination that its standards, in the circumstances exist in which Congress
aggregate, are as protective of public intended a denial of the waiver.19
compelling and extraordinary
conditions; or (C) such state standards health and welfare as applicable federal In that decision, the court considered
and accompanying enforcement standards. Second, the amended the standards of proof under section 209
procedures are not consistent with regulations must not affect consistency for the two findings related to granting
section 202(a) of the Act.12 with section 209 of the Act, following a waiver for an ‘‘accompanying
the same criteria discussed above in the enforcement procedure.’’ Those findings
Key principles governing this review context of full authorizations. Third, the involve: (1) Whether the enforcement
are that EPA should limit its inquiry to amended regulations must not raise any procedures impact California’s prior
the specific findings identified in new issues affecting EPA’s prior waiver protectiveness determination for the
section 209(b)(1) of the Clean Air Act, or authorization decisions.15 associated standards, and (2) whether
and that EPA will give substantial the procedures are consistent with
deference to the policy judgments C. Burden and Standard of Proof
section 202(a). The principles set forth
California has made in adopting its As the U.S. Court of Appeals for the by the court are similarly applicable to
regulations. In previous waiver D.C. Circuit has made clear in MEMA I, an EPA review of a request for a waiver
decisions, EPA has stated that Congress opponents of a waiver request by of preemption for a standard. The court
intended the Agency’s review of California bear the burden of showing instructed that ‘‘the standard of proof
California’s decision-making to be that the statutory criteria for a denial of must take account of the nature of the
narrow. EPA has rejected arguments that the request have been met: risk of error involved in any given
are not specified in the statute as [T]he language of the statute and its decision, and it therefore varies with the
grounds for denying a waiver: legislative history indicate that California’s finding involved. We need not decide
The law makes it clear that the waiver regulations, and California’s determinations how this standard operates in every
requests cannot be denied unless the specific that they must comply with the statute, when
presented to the Administrator are presumed
waiver decision.’’ 20
findings designated in the statute can With regard to the protectiveness
to satisfy the waiver requirements and that
properly be made. The issue of whether a finding, the court upheld the
the burden of proving otherwise is on
proposed California requirement is likely to whoever attacks them. California must Administrator’s position that, to deny a
result in only marginal improvement in present its regulations and findings at the waiver, there must be ‘‘clear and
California air quality not commensurate with hearing and thereafter the parties opposing compelling evidence’’ to show that
its costs or is otherwise an arguably unwise
proposed enforcement procedures
exercise of regulatory power is not legally 13 ‘‘Waiver of Application of Clean Air Act to
pertinent to my decision under section 209,
undermine the protectiveness of
California State Standards,’’ 36 FR 17458 (Aug. 31,
so long as the California requirement is 1971). Note that the more stringent standard
California’s standards.21 The court
consistent with section 202(a) and is more expressed here, in 1971, was superseded by the noted that this standard of proof also
stringent than applicable Federal 1977 amendments to section 209, which established accords with the congressional intent to
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requirements in the sense that it may result that California must determine that its standards provide California with the broadest
are, in the aggregate, at least as protective of public
health and welfare as applicable federal standards. 16 MEMA
10 CAA § 209(a). 42 U.S.C. 7543(a). 14 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, I, note 19, at 1121.
17 Id. at 1126.
11 CAA § 209(b)(1). 42 U.S.C. 7543(b)(1). 627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’).
18 Id. at 1126.
California is the only state that meets section 15 See ‘‘California State Motor Vehicle Pollution
19 Id. at 1122.
209(b)(1)’s requirement for obtaining a waiver. See Control Standards; Amendments Within the Scope
S. Rep. No. 90–403 at 632 (1967). of Previous Waiver of Federal Preemption,’’ 46 FR 20 Id.
12 CAA § 209(b)(1). 42 U.S.C. 7543(b)(1). 36742 (July 15, 1981). 21 Id.
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![4870 Federal Register / Vol. 82, No. 10 / Tuesday, January 17, 2017 / Notices
possible discretion in setting regulations Report for the 1977 amendments to the the scope of previous waivers, EPA
it finds protective of the public health CAA. Congress had the opportunity looks at whether CARB’s revision is
and welfare.22 through the 1977 amendments to restrict either limited to minor technical
With respect to the consistency the preexisting waiver provision, but amendments to previously waived
finding, the court did not articulate a elected instead to expand California’s regulations or modifying regulations in
standard of proof applicable to all flexibility to adopt a complete program order to provide additional compliance
proceedings, but found that the of motor vehicle emission controls. The flexibility without significantly
opponents of the waiver were unable to report explains that the amendment is reducing the overall stringency of
meet their burden of proof even if the intended to ratify and strengthen the previously waived regulations. The
standard were a mere preponderance of preexisting California waiver provision amendments at issue in this request
the evidence. Although MEMA I did not and to affirm the underlying intent of provide regulatory clarity and
explicitly consider the standards of that provision, that is, to afford corrections, and provide limited
proof under section 209 concerning a California the broadest possible exemptions in order to provide for
waiver request for ‘‘standards,’’ as discretion in selecting the best means to compliance flexibility
compared to a waiver request for protect the health of its citizens and the EPA sought comment on a range of
accompanying enforcement procedures, public welfare.26 issues, including those applicable to a
there is nothing in the opinion to within-the-scope analysis as well as
E. EPA’s Administrative Process in those applicable to a full authorization
suggest that the court’s analysis would Consideration of California’s Request
not apply with equal force to such analysis. No party submitted a comment
determinations. EPA’s past waiver On August 9, 2016, EPA published a that California’s 2007 Amendments or
decisions have consistently made clear notice of opportunity for public hearing Truck Idling Amendments require a full
that: ‘‘[E]ven in the two areas and comment on California’s waiver authorization analysis. Given the lack of
concededly reserved for Federal request.27 In that notice, EPA requested comments on this issue, and EPA’s
judgment by this legislation—the comments on whether the 2007 assessment of the nature of the
existence of ‘compelling and Amendments and the Truck Idling amendments, I will evaluate California’s
extraordinary’ conditions and whether Amendments, each individually 2007 amendments and Truck Idling
the standards are technologically assessed, should be considered under Amendments by application of the
feasible—Congress intended that the the within-the-scope analysis or traditional within-the-scope analysis, as
standards of EPA review of the State whether they should be considered CARB requested.
decision to be a narrow one.’’ 23 under the full waiver criteria. For the In- As noted above, EPA can confirm that
Use Regulation, and to the degree the the amended regulations are within the
D. Deference to California 2007 Amendments or the Truck Idling scope of a previously granted waiver of
In previous waiver decisions, EPA has Amendments should not be considered preemption if three conditions are met.
recognized that the intent of Congress in under the within-the-scope criteria, EPA First, the amended regulations do not
creating a limited review based on sought comment under the following undermine California’s determination
specifically listed criteria was to ensure three criteria: Whether (a) California’s that its standards, in the aggregate, are
that the federal government did not determination that its motor vehicle as protective of public health and
second-guess state policy choices. As emissions standards are, in the welfare as applicable federal standards.
the Agency explained in one prior aggregate, at least as protective of public Second, the amended regulations do not
waiver decision: health and welfare as applicable federal affect consistency with section 202(a) of
standards is arbitrary and capricious, (b) the Act. Third, the amended regulations
It is worth noting . . . I would feel
California needs such State standards to do not raise any ‘‘new issues’’ affecting
constrained to approve a California approach
to the problem which I might also feel unable meet compelling and extraordinary EPA’s prior authorizations.
to adopt at the federal level in my own conditions, and (c) California’s
standards and accompanying B. Full Authorization Analysis
capacity as a regulator. . . . Since a
balancing of risks and costs against the enforcement procedures are consistent CARB’s waiver request also included
potential benefits from reduced emissions is with section 202(a) of the Clean Air Act. the In-Use Regulation. EPA must grant
a central policy decision for any regulatory EPA received no comments and no a waiver for the In-Use Regulation
agency under the statutory scheme outlined requests for a public hearing. unless the Administrator finds: (1)
above, I believe I am required to give very Consequently, EPA did not hold a California’s determination that its
substantial deference to California’s public hearing. standards will be, in the aggregate, as
judgments on this score.24
protective of public health and welfare
Similarly, EPA has stated that the III. Discussion
as applicable federal standards is
text, structure, and history of the A. Within-the-Scope Analysis arbitrary and capricious; (2) California
California waiver provision clearly EPA initially evaluates California’s does not need such California standards
indicate both a congressional intent and 2007 Amendments and Truck Idling to meet compelling and extraordinary
appropriate EPA practice of leaving the Amendments by application of our conditions; or (3) California’s standards
decision on ‘‘ambiguous and traditional within-the-scope analysis, as and accompanying enforcement
controversial matters of public policy’’ CARB requested. If we determine that procedures are not consistent with this
to California’s judgment.25 This CARB’s request does not meet the section.
interpretation is supported by relevant requirements for a within-the-scope EPA’s evaluation of the 2007
discussion in the House Committee Amendments, the Truck Idling
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determination, we then evaluate the
request based on a full authorization Amendments, and the In-use Regulation
22 Id.
analysis. In determining whether is set forth below. Because of the
23 See, e.g., ‘‘California State Motor Vehicle
amendments can be viewed as within similarity of the within-the-scope
Pollution Control Standards; Waiver of Federal
Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103.
criteria and the full waiver criteria, a
24 40 FR 23102, 23103–04 (May 28, 1975). 26 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. discussion of all three sets of respective
25 40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 294, 95th Cong., 1st Sess. 301–02 (1977)). amendments take place within each
(January 13, 1993). 27 81 FR 52678 (August 9, 2016). waiver criterion. To the extent that the
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criteria are applied uniquely, or that scope analysis), but instead ensure that In conjunction with the initial
additional criteria apply under either California’s standards remain as, or adoption and subsequent amendments
the within-the-scope analysis or the full more protective than, applicable federal of the In-Use Regulation in 2006, 2007,
waiver analysis, such application is also standards.31 Similarly, CARB notes that and 2011, respectively (see Resolutions
addressed below. with regard to the Truck Idling 06–27, 07–56, and 11–19 noted above),
Amendments that EPA’s regulations do the CARB’s Board confirmed
C. Whether California’s Protectiveness
not require new heavy-duty diesel California’s longstanding position that
Determination Was Arbitrary and
engines to be equipped with idling California continues to need its own
Capricious
shutdown systems or to optionally motor vehicle emission program to meet
As stated in the background, section comply with NOX idling emission
209(b)(1)(A) of the Act sets forth the first serious air pollution problems. CARB
standards.32
of the three criteria governing a new As it is clear that California’s notes that the geographical and climatic
waiver request—whether California was standards are at least as protective of conditions and the tremendous growth
arbitrary and capricious in its public health and welfare as applicable in vehicle population and use that
determination that its motor vehicle federal standards, and that no evidence moved Congress to authorize California
emissions standards will be, in the is in the record suggesting otherwise to establish separate vehicle standards
aggregate, at least as protective of public (and EPA is not otherwise aware of any in 1967 still exist today.35 ‘‘Nothing in
health and welfare as applicable federal information), I find that California’s these conditions has changed to warrant
standards. Section 209(b)(1)(A) of the respective protectiveness a change in EPA’s confirmation, and
CAA requires EPA to deny a waiver if determinations are not arbitrary and therefore there can be no doubt of the
the Administrator finds that California’s capricious for purposes of the In-Use continuing existence of compelling and
protectiveness determination was Regulation, the 2007 Amendments, and extraordinary conditions justifying
arbitrary and capricious. However, a the Truck Idling Amendments. California’s need for its own motor
finding that California’s determination vehicle emissions control program.’’ 36
was arbitrary and capricious must be D. Whether the Standards Are
based upon clear and convincing Necessary To Meet Compelling and There has been no evidence submitted
evidence that California’s finding was Extraordinary Conditions to indicate that California’s compelling
unreasonable.28 Section 209(b)(1)(B) instructs that and extraordinary conditions do not
CARB notes that in its initial adoption EPA cannot grant a waiver if the Agency continue to exist. California,
and amendments to the In-Use finds that California ‘‘does not need particularly in the South Coast and San
Regulation in 2006, 2007, and 2011, the such State standards to meet compelling Joaquin Valley air basins, continues to
CARB Board approved Resolutions 06– and extraordinary conditions.’’ EPA’s experience some of the worst air quality
27, 07–56 and 11–19 in which it inquiry under this second criterion has in the nation, and many areas in
declared: traditionally been to determine whether California continue to be in non-
Be it further resolved that the Board hereby California needs its own motor vehicle attainment with national ambient air
determines that the regulations adopted emission control program (i.e., set of quality standards for fine particulate
herein will not cause California motor standards) to meet compelling and matter and ozone.37 As California has
vehicle emission standards, in the aggregate, extraordinary conditions, and not
to be less protective of the public health and
previously stated, ‘‘nothing in
whether the specific standards that are [California’s unique geographic and
welfare than applicable federal standards.29 the subject of the waiver request are
CARB also notes that EPA has climatic] conditions has changed to
necessary to meet such conditions.33 In
previously granted California a waiver warrant a change in this
recent waiver actions, EPA again
for California’s 2007 California HDDE examined the language of section determination.’’ 38
standards (which included the NTE test 209(b)(1)(B) and reiterated this Based on the record before us,
procedures), and the addition of the In- longstanding traditional interpretation including EPA’s prior waiver decisions,
Use Regulation will help ensure that the as the better approach for analyzing the I am unable to identify any change in
emission control systems on HDDEs are need for ‘‘such State standards’’ to meet circumstances or evidence to suggest
properly designed and sufficiently ‘‘compelling and extraordinary that the conditions that Congress
durable to ensure compliance with the conditions.’’ 34 identified as giving rise to serious air
emission requirements during their quality problems in California no longer
useful life. CARB further noted that the 31 Id. at 21. exist. Therefore, EPA cannot find that
In-Use Regulation provisions are 32 Id. at 24, citing Resolution 11–19.
California does not need its state
33 See California State Motor Vehicle Pollution
‘‘essentially identical to the standards, including its In-Use
Control Standards; Notice of Decision Granting a
requirements of EPA’s corresponding Waiver of Clean Air Act Preemption for California’s
HDIUT program.30 CARB also notes that 2009 and Subsequent Model Year Greenhouse Gas
35 Waiver Support Request Support Document at
the 2007 Amendments in no way Emission Standards for New Motor Vehicles,’’ 74
FR 32744 (July 8, 2009), at 32761; see also 18.
undermine the stringency of the ‘‘California State Motor Vehicle Pollution Control 36 Id.
underlying exhaust emission standards Standards; Waiver of Federal Preemption Notice of 37 74 FR 32744, 32762–63 (July 8, 2009), 76 FR
or the associated test procedures (which Decision,’’ 49 FR 18887 (May 3, 1984), at 18889– 77515, 77518 (December 13, 2011), 81 FR 95982
is the criterion under the within-the- 18890. (December 29, 2016). EPA continually evaluates the
34 See 78 FR 2112, at 2125–26 (Jan. 9, 2013)
air quality conditions in the United States,
(‘‘EPA does not look at whether the specific including California. California continues to
28 MEMA I, 627 F.2d at 1122, 1124 (‘‘Once
standards at issue are needed to meet compelling experience some of the worst air quality in the
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California has come forward with a finding that the and extraordinary conditions related to that air
procedures it seeks to adopt will not undermine the country and continues to be in nonattainment with
pollutant.’’; see also EPA’s July 9, 2009 GHG Waiver
protectiveness of its standards, parties opposing the National Ambient Air Quality Standards for fine
Decision wherein EPA rejected the suggested
waiver request must show that this finding is interpretation of section 209(b)(1)(B) as requiring a particulate matter and ozone, see ‘‘Notice of
unreasonable.’’); see also 78 FR 2112, at 2121 review of the specific need for California’s new Availability of the Environmental Protection
(January. 9, 2013). motor vehicle greenhouse gas emission standards as Agency’s Preliminary Interstate Ozone Transport
29 Waiver Support Document at 17. See EPA–HQ–
opposed to the traditional interpretation (need for Modeling Data for the 2015 Ozone National
OAR–2016–0017–0027, EPA–HQ–OAR–2016– the motor vehicle emission program as a whole) Ambient Air Quality Standard (NAAQS)’’ at EPA–
0017–0047, and EPA–HQ–OAR–2016–0017–0056. applied to local or regional air pollution problems. HQ–OAR–2016–0751.
30 Id. See also 79 FR 46256, 46261 (August 7, 2014). 38 Id.
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![Federal Register / Vol. 82, No. 10 / Tuesday, January 17, 2017 / Notices 4873
Dated: January 9, 2017. FOR FURTHER INFORMATION CONTACT: For applicant; (2) the government, state, or
Gina McCarthy, additional information about the territory under the laws of which each
Administrator. information collection, contact Nicole corporate or partnership applicant is
[FR Doc. 2017–00940 Filed 1–13–17; 8:45 am] Ongele at (202) 418–2991. organized; (3) the name, title, post office
BILLING CODE 6560–50–P SUPPLEMENTARY INFORMATION: address, and telephone number of the
OMB Control Number: 3060–0989. officer or contact point, such as legal
Title: Sections 63.01, 63.03, 63.04, counsel, to whom correspondence
Procedures for Applicants Requiring concerning the application is to be
FEDERAL COMMUNICATIONS addressed; (4) the name, address,
Section 214 Authorization for Domestic
COMMISSION citizenship and principal business of
Interstate Transmission Lines Acquired
[OMB 3060–0989] Through Corporate Control. any person or entity that directly or
Form Number: N/A. indirectly owns at least ten percent of
Information Collection Being Reviewed Type of Review: Extension of a the equity of the applicant, and the
by the Federal Communications currently approved collection. percentage of equity owned by each of
Commission Under Delegated Respondents: Business or other for- those entities (to the nearest one
Authority profit. percent); (5) certification pursuant to 47
Number of Respondents of Responses: CFR 1.2001 that no party to the
AGENCY: Federal Communications 92 respondents; 92 responses. application is subject to a denial of
Commission. Estimated Time per Response: 1.5–10 Federal benefits pursuant to section
ACTION: Notice and request for hours. 5301 of the Anti-Drug Abuse Act of
comments. Frequency of Response: On occasion 1988; (6) a description of the
reporting requirement. transaction; (7) a description of the
SUMMARY: As part of its continuing effort Obligation to Respond: Mandatory. geographic areas in which the transferor
to reduce paperwork burdens, and as Statutory authority for this collection is and transferee (and their affiliates) offer
required by the Paperwork Reduction contained in 47 U.S.C. 152, 154(i)–(j), domestic telecommunications services,
Act (PRA) of 1995, the Federal 201, 214, and 303(r). and what services are provided in each
Communications Commission (FCC or Total Annual Burden: 861 hours. area; (8) a statement as to how the
Commission) invites the general public Annual Cost Burden: $98,175. application fits into one or more of the
and other Federal agencies to take this Privacy Act Impact Assessment: No presumptive streamlined categories in
opportunity to comment on the impact(s). section 63.03 or why it is otherwise
following information collections. Nature and Extent of Confidentiality: appropriate for streamlined treatment;
Comments are requested concerning: There is no need for confidentiality. The (9) identification of all other
Whether the proposed collection of FCC is not requiring applicants to Commission applications related to the
information is necessary for the proper submit confidential information to the same transaction; (10) a statement of
performance of the functions of the Commission. If applicants want to whether the applicants are requesting
Commission, including whether the request confidential treatment of the special consideration because either
information shall have practical utility; documents they submit to Commission, party to the transaction is facing
the accuracy of the Commission’s they may do so under 47 CFR 0.459 of imminent business failure; (11)
burden estimate; ways to enhance the the Commission’s rules. identification of any separately filed
quality, utility, and clarity of the Needs and Uses: A Report and Order, waiver request being sought in
information collected; ways to minimize FCC 02–78, adopted and released in conjunction with the transaction; and
the burden of the collection of March 2002 (Order), set forth the (12) a statement showing how grant of
information on the respondents, procedures for common carriers the application will serve the public
including the use of automated requiring authorization under section interest, convenience, and necessity,
collection techniques or other forms of 214 of the Communications Act of 1934, including any additional information
information technology; and ways to as amended, to acquire domestic that may be necessary to show the effect
further reduce the information interstate transmission lines through a of the proposed transaction on
collection burden on small business transfer of control. Under section 214 of competition in domestic markets. Where
concerns with fewer than 25 employees. the Act, carriers must obtain FCC an applicant wishes to file a joint
The FCC may not conduct or sponsor approval before constructing, acquiring, international section 214 transfer of
a collection of information unless it or operating an interstate transmission control application and domestic
displays a currently valid OMB control line. Acquisitions involving interstate section 214 transfer of control
number. No person shall be subject to common carriers require affirmative application, the applicant must submit
any penalty for failing to comply with action by the Commission before the information that satisfies the
a collection of information subject to the acquisition can occur. This information requirements of 47 CFR 63.18. In the
PRA that does not display a valid OMB collection contains filing procedures for attachment to the international
control number. domestic transfer of control applications application, the applicant must submit
DATES: Written PRA comments should under sections 63.03 and 63.04. The information described in 47 CFR
be submitted on or before March 20, FCC filing fee amount for section 214 63.04(a)(6). When the Commission,
2017. If you anticipate that you will be applications is currently $1,155 per acting through the Wireline Competition
submitting comments, but find it application, which reflects an increase Bureau, determines that applicants have
sradovich on DSK3GMQ082PROD with NOTICES
difficult to do so within the period of of the previous fee of $1,050 per submitted a complete application
time allowed by this notice, you should application. (a) Sections 63.03 and 63.04 qualifying for streamlined treatment, it
advise the contact listed below as soon require domestic section 214 shall issue a public notice commencing
as possible. applications involving domestic a 30-day review period to consider
ADDRESSES: Direct all PRA comments to transfers of control, at a minimum, whether the transaction serves the
Nicole Ongele, FCC, via email to PRA@ should specify: (1) The name, address public interest, convenience and
fcc.gov and to Nicole.Ongele@fcc.gov. and telephone number of each necessity. Parties will have 14 days to
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Document Created: 2017-01-14 01:45:00
Document Modified: 2017-01-14 01:45:00
| 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 March 20, 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 | 82 FR 4867 |
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