State of California 

AIR RESOURCES BOARD 

Addendum to the Final Statement of Reasons for Rulemaking 

ADOPTION OF THE “LEV III” AMENDMENTS TO THE CALIFORNIA GREENHOUSE GAS 

AND CRITERIA POLLUTANT EXHAUST AND EVAPORATIVE EMISSION STANDARDS 

AND TEST PROCEDURES AND TO THE ON-BOARD DIAGNOSTIC SYSTEM 

REQUIREMENTS FOR PASSENGER CARS, LIGHT-DUTY TRUCKS, AND MEDIUMDUTY VEHICLES, AND TO THE EVAPORATIVE EMISSION REQUIREMENTS FOR 

HEAVY-DUTY VEHICLES

Public Hearing Date: January 26-27, 2012 

Agenda Item: 12-1-2 

Addendum Prepared: August 7, 2012 

I. Background 

On June 25, 2012, the Air Resources Board (ARB or Board) submitted the Final 

Statement of Reasons (FSOR) for the “ Adoption of the “LEV III” Amendments to the 

California Greenhouse Gas and Criteria Pollutant and Evaporative Emission Standards 

and Test Procedures and to the On-Board Diagnostic System Requirements for 

Passenger Cars, Light-duty Trucks and Medium-duty Vehicles, and to the Evaporative 

Emission Requirements for Heavy-duty Vehicles” to the Office of Administrative Law 

(OAL) for its review and approval. In the course of its review, OAL questioned several 

regulatory changes that it interpreted as being potentially impermissibly retroactive, and 

identified a single incorrect reference to an incorporated test procedure. Each of these 

issues is addressed in turn below. 

A. RETROACTIVITY 

ARB understands there to be two types of retroactivity that regulatory text might 

present: a prohibited “primary” retroactive effect, and an allowable “secondary” 

retroactive effect. “Primary” retroactivity is altering “the past legal consequences of past 

actions.” (20th Century Ins. Co. v. Garamendi, (1994) 8 Cal. 4th 216, 281, original 

italics, citing Bowen v. Georgetown Univ. Hosp., (1988) 488 U.S. 204, 219). 

“Secondary” retroactivity is altering “the future legal consequences of past transactions.” 

(20th Century Ins. Co. v. Garamendi, (1994) 8 Cal. 4th 216, 281, original italics, citing 

Nat'l Med. Enterprises, Inc. v. Sullivan, (9th Cir. 1992) 957 F.2d 664, 671). “Secondary” 

retroactivity is “an entirely lawful consequence of rulemaking and hence does not itself 

offend any law, including the United States and California Constitutions and their 

respective due process clauses.” (20th Century Ins. Co. v. Garamendi, (1994) 8 Cal. 4th 

216, 281-282). 
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In fact, ARB has, with OAL approval, exercised this “entirely lawful consequence” 

several times in the last few years, primarily in response to the economic downturn that 

began in 2008. Rulemakings in which ARB provided relief shortly before or even during 

the compliance year include our Truck and Bus rule (OAL Regulatory Action No. 2011-

1028-04s), the In-Use Off-Road rule (OAL Regulatory Action No. 2011-1028-03s), and 

the Transport Refrigeration Unit rule (OAL Regulatory Action No. 2011-0204-

06s). These rulemaking amendments were noticed before the compliance year had 

begun but were formally adopted after it had begun. ARB has also provided some 

compliance relief for new motor vehicle manufacturers having to comply with on-board 

diagnostic (OBD) requirements under both the light-and medium duty-vehicle OBD II 

regulation and the heavy-duty OBD regulation. Some of these OBD amendments were 

not noticed or adopted until the first model-year affected by the amendments was 

already underway. Like the amendments at issue here, these prior ARB rulemakings 

address real world, future consequences of past transactions as allowed, without 

changing the past legal consequences of past actions, as would be arguably prohibited. 

As explained in Section II below, all regulatory changes OAL identified as potentially 

impermissibly retroactive have at most a “secondary” retroactive effect and so are 

permissible. 

II. Retroactivity 

Subdivision 1961(b)(1)(B)(1)(c): 

 c. The applicable emission standards to be used in the above 

equations are as follows: 

Model Year Emission 

Category 

Emission Standard Value 

All PCs; 

LDTs 0-3750 lbs. 

LVW 

LDTs 

3751-5750 lbs. 

LVW 

2001 through 2014 and 

subsequent (§1960.5 “AB 

965” vehicles only) 

All Federal Emission 

Standard to which 

Vehicle is Certified 

Federal Emission 

Standard to 

which Vehicle is 

Certified 

2001 - 2003 

(§1960.1(f)(2)) 

Tier 1 0.25 0.32 

2001 - 2006 model year 

vehicles certified to the 

“LEV I” standards in 

§1960.1(g)(1) (For TLEVs, 

2001 - 2003 model years 

only) 

TLEVs 0.125 0.160 

LEVs 0.075 0.100 

ULEVs 0.040 0.050 
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Model Year Emission 

Category 

All PCs; 

LDTs 0-3750 lbs. 

LVW 

LDTs 3751 lbs. 

LVW - 8500 lbs. 

GVW 

2004 through 2014 and 

subsequent model year 

vehicles certified to the 

“LEV II” standards in 

§1961(a)(1) 

LEVs 0.075 0.075 

ULEVs 0.040 0.040 

SULEVs 0.01 0.01 

2004 through 2014 and 

subsequent model year 

vehicles certified to the 

optional 150,000 mile 

“LEV II” standards for PCs 

and LDTs in 1961(a)(1) 

LEVs 0.064 0.064 

ULEVs 0.034 0.034 

SULEVs 0.0085 0.0085 

These amendments correct a long standing discrepancy between the regulations and 

the test procedures for emission credits earned by vehicles certifying to optional 

150,000 mile emission standards that can be applied by a manufacturer when 

calculating compliance with the fleet average non-methane organic gas (NMOG) 

requirements listed in section 1961(b)(1)(A). The emission standard values in section 

E.2.1.2 of the “California Exhaust Emission Standards and Test Procedures for 2001 

and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty 

Vehicles," last amended September 27, 2010, are correct in that they are expressed in 

three decimal places. The emission standard values in section subdivision 

1961(b)(1)(B)(1)(c) of the California Code of Regulations are in error in that they are 

expressed in two decimal places. These amendments do not change the emission 

standards to which these vehicles certify. Rather, they change the credits those 

vehicles earn towards the fleet average NMOG requirement. These amendments would 

not require any manufacturer to make changes to any 2013 model year vehicle, or any 

previous model year vehicle, already produced. This means that the aforementioned 

changes affecting model year 2013 vehicles only modify the value of credits a 

manufacturer may earn for vehicles meeting the optional emission standards, but would 

not require a manufacturer to make changes to the vehicle itself. Consequently, there 

are only future legal consequences (treatment of credits) for past acts (production), but 

no past legal consequences for those past acts. 

The Board has further determined that no alternative considered by the agency would 

be more effective in carrying out the purpose for which regulatory action was proposed 

or would be as effective and less burdensome to affected private persons than the 

action taken by the Board.