BEFORE THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

In the Matter of California’s Request for

Confirmation that the 2006 Technical

Amendments to the California Motor Vehicle Evaporative and Exhaust

Emissions Test Procedures and Related Requirements Are Within the Scope of Previous Waivers of Preemption Issued Pursuant to Section 209(b) of the Clean

Air Act

__________________________________ ) ) ) ) ) ) ) ) ) )

WAIVER ACTION SUPPORT DOCUMENT

SUBMITTED BY THE

CALIFORNIA AIR RESOURCES BOARD

Submitted April 30, 2007

I. INTRODUCTION AND PROCEDURAL BACKGROUND

The California Air Resources Board (CARB or Board) requests that the Administrator of the U.S. Environmental Protection Agency (EPA) conf irm that the 2006 technical amendments to the California motor vehicle evaporat ive and exhaust emissions test procedures, onboard refueling vapor recovery and sp itback test procedures, and vehicle emission control label requirements (the 2006 Techn ical Amendments or the Amendments) fall within the scope of a waiver of pr eemption previously granted under the federal Clean Air Act (CAA) section 209(b). Th is Section describes the process by which CARB adopted the Amendments. Section II desc ribes the pertinent standards, test procedures, and related requirements for which waivers have previously been

issued. Section III describes the 2006 Technical A mendments. Section IV describes the criteria for determining whether California amendme nts are within the scope of previous

waivers. Section V demonstrates that the 2006 Tech nical Amendments meet the criteria for falling within the scope of the previo us waivers.

The Board considered the 2006 Technical Amendments at a June 22, 2006 hearing. The Amendments align each of the subject California test procedures and labeling requirements with its corresponding federal counter part; EPA has already incorporated each of the subject amendments into the federal tes t procedures and labeling requirements by adopting a direct final rule on Dec ember 8, 2005, which became effective February 6, 2006. 1 At the hearing, the Board adopted the Amendments as

1 United States Environmental Protection Agency. “Con trol of Air Pollution From New Motor Vehicles and New Motor Vehicle Engines; Technical Amendments to Evaporative Emissions Regulations,2

originally proposed, by adopting Resolution 06-20. (Attachment 4). The amendments

were submitted to California’s Office of Administra tive Law (OAL) for review on December 4, 2006, and were approved by OAL and file d with California’s Secretary of State on January 18, 2007. The 2006 Technical Amen dments became effective February 17, 2007.

The specific regulatory text and the incorporated d ocuments amended by the 2006 Technical Amendments are title 13, California Code of Regulations (CCR), sections 1961, 1976 and 1978 (see Attachment 6), and three t est procedure documents incorporated respectively in those three sections: "California Exhaust Emission Standards and Test Procedures for 2001 and Subseque nt Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles,” “Cali fornia Evaporative Emission Standards and Test Procedures for 2001 and Subseque nt Model Motor Vehicles,” and “California Refueling Emission Standards and Test P rocedures for 2001 and Subsequent Model Motor Vehicles” (see Attachment 7)

.

II. PREEXISTING CALIFORNIA EVAPORATIVE EMISSION STA NDARDS,

ONBOARD REFUELING VAPOR RECOVERY TEST PROCEDURES AN D

VEHICLE LABELING PROVISIONS FOR WHICH A WAIVER HAS BEEN

GRANTED

A. Evaporative Emission Standards

On April 22, 2003, the EPA Administrator granted Ca lifornia a waiver of preemption pursuant to section 209(b) of the CAA for CARB’s Lo w-Emission Vehicle Amendments (LEV II Amendments) to CARB’s Low-Emission Vehicle program. 2 The LEV II Amendments established more stringent evaporative e mission standards and associated test procedures applicable to 2004 and s ubsequent model year motor vehicles, and ensured that evaporative emissions ar e controlled to “near zero” levels for

the useful life of the vehicle.

California subsequently enacted a series of “follow -up” amendments to the LEV II amendments. The second set of follow-up amendments to the LEV II regulations

included amendments to the exhaust emission standar ds and test procedures applicable to light- and medium-duty gasoline-fuele d vehicles. 3 The third set of

Dynamometer Regulations, and Vehicle Labeling,” Uni ted States Environmental Protection Agency, 70 Fed.Reg. 72917 (December 8, 2005) http://www.epa.go v/fedrgstr/EPA-AIR/2005/December/Day08/a23714.htm.

2 68 Fed. Reg. 19811 (April 22, 2003).

3 The second set of amendments: established particu late matter standards for light-and medium-duty Otto-cycle vehicles, established non-methane organi c gas (NMOG) certification factors for gasoline-fue led vehicles, extended the applicability of generic rea ctivity adjustment factors (RAFs) for all fuels exc ept gasoline, revised emission offset requirements for “AB 965” vehicles, added intermediate in-use compliance standards for light-duty trucks engineer ed for heavier duty cycles and for vehicles certifi ed to optional 150,000 mile standards for LEV, ULEV or SU LEV standards, revised California’s NMOG test procedures, and revised the fleet average NMOG requ irements for independent low volume

manufacturers.3

follow-up amendments to the LEV II regulations incl uded amendments to the then existing “California Refueling Emission Standards a nd Test Procedures (ORVR Standards and TPs), and revisions to vehicle labeli ng provisions. The Administrator

confirmed that the second and third sets of follow- up amendments to the LEV II amendments were within the scope of the LEV II Amen dments on April 28, 2005. 4

B. Onboard Refueling Vapor Recovery

CARB first adopted onboard refueling vapor recovery (ORVR) standards and test procedures on April 24, 1996. California’s ORVR st andards and test procedures were nearly identical to ORVR requirements adopted by EP A, and are intended to ensure that hydrocarbon vapors are not released to the atm osphere during vehicle refueling. The Administrator has granted waivers of preemption for both California’s original adoption of ORVR requirements and subsequent amendm ents that were incorporated in the third set of follow-up amendments to the LEV II amendments. 5

C. Procedures Applicable to Testing of 4WD Vehicles

The specific provisions regarding conducting chassi s dynamometer testing of 4WD vehicles are incorporated within the exhaust and ev aporative emission test procedures established by the LEV II Amendments for which, as stated, a waiver has been granted.

D. Vehicle Labeling Provisions

California’s present emission control label require ments for new vehicles and engines were last substantively modified by the fir st set of LEV II follow-up amendments, which were covered by the waiver grante d by the Administrator for the

LEV II Amendments. 6

III. SUMMARY OF THE 2006 TECHNICAL AMENDMENTS TO TH E CALIFORNIA

MOTOR VEHICLE EVAPORATIVE AND EXHAUST EMISSIONS TES T

PROCEDURES

A. Development of the Amendments

The 2006 Technical Amendments are the result of con tinued efforts to streamline and to harmonize federal and California evaporative emissi on testing requirements. In 1996, EPA, CARB, and motor vehicle manufacturers initiate d a collaborative effort to evaluate whether existing evaporative test procedures could be “streamlined” without impacting program stringency. On December 31, 2002, EPA publ ished Guidance

4 70 Fed. Reg. 22034 (April 28, 2005).

5 67 Fed. Reg. 162 (August 21, 2002) and 70 Fed. Reg . 81 (April 28, 2005) respectively. The ORVR amendments incorporated revisions to clarify that g aseous fueled vehicles exempted from California requirements are still subject to federal requireme nts, and to reinstate a requirement that gasoline meeting federal certification fuel standards could be used in ORVR testing. (This requirement had been inadvertently removed as part of the LEV II rulemak ing).

6 68 Fed. Reg. 77 (April 22, 2003).4

Letter CCD-02-20, which identified, based on CARB, EPA and automobile industry discussions, amendments to evaporative and refuelin g emissions test procedures that could be made via a direct final rulemaking. Addit ional minor amendments were also included to address four-wheel drive dynamometer pr ocedures, and to clarify vehicle label requirements. On December 8, 2005, EPA publi shed a direct final rule incorporating the suggested modifications identifie d in Guidance Letter CCD-02-20, amendments to dynamometer test provisions regarding testing of four wheel and all-wheel drive vehicles, and amendments to vehicle labeling regulations. 7 These amendments subsequently became effective on Februar y 6, 2006. 8

The 2006 Technical Amendments directly incorporate EPA’s final rule into the corresponding California exhaust, evaporative, and refueling test procedures. These amendments clarify and modify particular requiremen ts within these test procedures, and address issues related to testing of four wheel and all-wheel drive vehicles, and to vehicle label specifications. The 2006 Technical A mendments will reduce manufacturer testing burdens for evaporative emission-related ce rtification and in-use vehicle compliance requirements without comprising the stri ngency of the test procedures or the effectiveness of the underlying emission standa rds, 9 and will also serve to further align and harmonize California and EPA test procedu res.

The 2006 Technical Amendments modify only the test procedures associated with present California evaporative emission standards; they do not modify the underlying

standards themselves.

B. Evaporative Emission Test Procedure Amendments

1. Brief Overview of Preexisting Evaporative Emissi on Test Procedures

Prior to this rulemaking, compliance with the LEV I I evaporative standards has been demonstrated by using a series of two specific test procedure sequences: 1) Three-Day Diurnal plus High-Temperature Hot Soak and Running Loss (3D+HS); and 2) Supplemental Two-Day Diurnal plus Hot Soak (2D+HS). A continuous five-day period is necessary to conduct a 3D+HS test sequence, while t he 2D+HS test sequence requires approximately four days.

7 70 Fed. Reg. 72917 (December 8, 2005).

8 United States Environmental Protection Agency. “Co ntrol of Air Pollution From New Motor Vehicles and New Motor Vehicle Engines; Technical Amendments to Evaporative Emissions Regulations, Dynamometer Regulations, and Vehicle Labeling,” Uni ted States Environmental Protection Agency; Federal Register, Vol. 70, Page 72917 (December 8, 2005).

9 The 2006 Technical Amendments only modify the test procedures associated with the evaporative emission standards established as a component of CA RB’s Low-Emission Vehicle Amendments (LEV II Amendments) to CARB’s Low-Emission Vehicle Program. As previously stated, the Administrator of the EPA granted California a waiver of preemption pursu ant to section 209(b) of the CAA for CARB’s LowEmission Vehicle Amendments (LEV II Amendments) on April 22, 2003 (68 Fed. Reg. 19811).5

In addition, a manufacturer-administered in-use com pliance program (i.e., the In-Use Verification Program or “IUVP” 10 ) has required manufacturers to procure and emissio n test a specified number of in-use vehicles on an “a s received” basis at certain mileage intervals. Under the IUVP, vehicles must show comp liance with the 3D+HS and 2D+HS emission standards; failure to demonstrate complian ce may subject the manufacturer to remedial action. In addition, CARB may conduct its own in-use compliance test program of vehicles that have been identified to ha ve a higher probability of noncompliance.

The preexisting Onboard Refueling Vapor Recovery (O RVR) requirements have ensured that hydrocarbon vapors are not released to the atmosphere during the refueling process. Certification compliance with t he ORVR standards is demonstrated by a single test sequence. Test preparations invol ve steps to condition and stabilize the ORVR and fuel system in a similar manner done for t he evaporative emission test sequences. The ORVR sequence allows for evaluation s of both integrated and non-integrated evaporative/refueling systems. 11 Vehicle certification also has required a demonstration of compliance with the refueling spit back standard. The ORVR test sequence takes three days to conduct.

2. Authorizing an Optional Demonstration of Complia nce – Supplemental Two-Day Diurnal Standard for Certification

The primary purpose of the 2D+HS test is to gauge t he evaporative emission control system’s capability to adequately purge the caniste r within a short drive-time period. However, this purge capability can also be reliably demonstrated by compliance with both the ORVR test and the 3D+HS test. Consequentl y, the 2D+HS test has become somewhat redundant for certification purposes. The 2006 Technical Amendments therefore provide manufacturers the option to certi fy new vehicles to the 2D+HS standard on the basis of an engineering evaluation. A manufacturer must submit a compliance statement at the time of certification, based on good engineering judgment, that the vehicle’s canister purges adequately and c omplies with the 2D+HS emission

standard.

Manufacturers that elect to use this option may be requested to provide specific data and information to ensure adequate purge flow exist s and compliance with the 2D+HS emission standard. Also, although this option exem pts manufacturers from directly conducting the 2D+HS test during certification, suc h vehicles must still comply with the emission standard in-use. This option is only avai lable for certification of current technology, gasoline- and ethanol-fueled vehicles t hat are configured with conventional evaporative emission control systems (e.g., convent ional fuel tank materials, liquid seal

10 The In-Use Verification Program was adopted as par t of the Compliance Assurance Program (“CAP 2000”) amendments included in the LEV II November 5 , 1998 rulemaking.

11 An integrated evaporative/refueling system uses a single carbon canister to retain the hydrocarbon vapors produced by both the evaporative and refueli ng processes. A non-integrated system uses two separate canisters – one for evaporative, and one f or refueling emissions. Only integrated systems ha ve been utilized on vehicles to date.6

ORVR systems, carbon canisters, etc.). The option is not available when certifying a vehicle with a non-integrated evaporative/refueling system.

3. Effect of Using Alternative Methods for Monitori ng Liquid Fuel Temperature During the Running Loss Test

The running loss emission test currently requires a manufacturer to monitor and control the temperature of the liquid fuel inside the test vehicle’s fuel tank. This has been accomplished by installing two separate thermocoupl es into the sides of the fuel tank,

which is burdensome because the installation is dif ficult to perform and requires follow-up repairs or complete replacement of the ta nk. Manufacturers have had the flexibility to use an alternative running loss test procedure (including the monitoring of the liquid fuel temperature) if they can demonstrat e that the alternative procedure provides an equivalent level of stringency as the p rescribed running loss test procedure. However, the preexisting regulations have required CARB to use the specified running loss test procedure, even if a manufacturer certifi ed a vehicle using an alternative

method. The 2006 Technical Amendments revise the E vaporative Emission Standards and Test Procedures to clarify that CARB may conduc t certification confirmatory tests and in-use compliance tests for vehicles certified under alternative running loss test procedures using either the specified procedures or the manufacturer’s approved alternative running loss test procedure.

4. Optional Alternative Canister Preconditioning Me thods

The evaporative emission test procedures have requi red that a test vehicle’s carbon canister remain installed in the vehicle, unless ne cessary access to the canister’s service ports is unavailable. In the latter situat ion, the canister may be removed to allow completion of the basic purge or load processes, bu t such component removals must be completed carefully because failure to exercise suc h care could produce leaks or other system malfunctions. Consequently, the preexisting procedures have been

burdensome for manufacturers in situations where th e test vehicle’s canister is not readily accessible.

The 2006 Technical Amendments amend the evaporative emission test procedures to provide manufacturers an option to use an alternati ve canister preconditioning method. The alternative method must be as, or more, stringe nt than the comparable method already specified in the procedures and requires ad vance approval from CARB’s Executive Officer. CARB may use either a manufactu rer’s alternative preconditioning method or the methods specified in the evaporative procedures for both certification confirmatory testing and in-use compliance testing.

5. In-Use Verification Program Requirements for Eva porative Emissions Testing

The 2006 Technical Amendments modify the California IUVP requirements to clarify that only one evaporative test demonstration (i.e., either the 3D+HS or the 2D+HS, not7

both) is required for all applicable fuel types of each evaporative/refueling family. Specifically, the modifications eliminate an ambigu ity in existing procedures and clarify that for gasoline- and ethanol-fueled IUVP vehicles , manufacturers must use the 2D+HS test to demonstrate compliance. For liquefied petr oleum gas- and non-dedicated compressed natural gas-fueled 12 (i.e., gaseous-fueled) IUVP vehicles, they must us e the 3D+HS test.

6. Onboard Refueling Vapor Recovery and Spitback Te st Procedures

The preexisting California ORVR procedures have req uired the fuel tank-vent hose to

be disconnected from the canister while the drain-a nd-10-percent-fill step of the refueling test sequence is performed. Manufacturer s have indicated that this requirement is burdensome. Moreover, the procedure is invasive and increases the possibility of accidental damage to the evaporative emission control system and improper re-assembly of the components.

The 2006 Technical Amendments modify the ORVR proce dures to specify that

disconnection of the canister and fuel tank-vent ho se assembly is optional when those specific drain-and-fill steps are performed. A man ufacturer will be required to indicate in the application for certification which type of can ister and vent hose assembly configuration will be used for test purposes, and C ARB will utilize the same configuration for certification confirmatory test p urposes.

7. Non-Substantive Changes

The 2006 Technical Amendments also include several minor, non-substantive amendments to maintain harmonization with the appli cable federal evaporative requirements. Specifically, the amendments reincor porate certain test waiver provisions into the ORVR procedures (relating to ORVR and refu eling spitback tests for certification vehicles) that were inadvertently omi tted from the July 2002 Code of Federal Regulations. These provisions have already been reincorporated into the revised federal procedures.

Other minor, non-substantive amendments include add ing page numbers to the “California Evaporative Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles.” Although a “Tabl e of Contents” was included when these test procedures were initially adopted, indiv idual page numbers were inadvertently omitted.

C. Four-Wheel Drive Dynamometer Provisions

Chassis dynamometers capable of testing four-wheel drive (4WD) vehicles were not generally available when the preexisting dynamomete r testing procedures and specifications were initially developed. Consequen tly, when certifying a 4WD vehicle,

12 An example of a non-dedicated compressed natural g as-fueled vehicle is one that operates on either gasoline or compressed natural gas.8

manufacturers have historically had to reconfigure the vehicle so that it could operate on a 2WD dynamometer. This may require major modifica tions to a vehicle’s drivetrain and/or electronic controls. In addition, emission test data derived from a reconfigured 4WD vehicle may not be representative of the vehicl e’s actual on-road (4WD) operation. With the proliferation of 4WD and all-wheel drive ( hereinafter included under “4WD”) vehicles in recent years, these issues have become a significant concern.

The 2006 Technical Amendments modify the existing t est procedures to allow a manufacturer to perform certification emission test s of 4WD vehicles on 4WD dynamometers. A manufacturer can still elect to ce rtify a 4WD vehicle in a 2WD mode of dynamometer operation, but needs advance Executi ve Officer approval to use a 2WD dynamometer to conduct IUVP testing of a 4WD vehicl e that was certified on a 4WD mode of dynamometer operation.

D. Vehicle Label Amendments

Some of the information that has been required on C alifornia emission control labels is outdated (e.g., engine tune-up specifications and a djustments, vacuum hose routing diagrams, etc.) CARB has already recognized that t he requirement of a machine-readable Vehicle Emission Configuration (VE C) bar code on labels is unnecessary. The 2006 Technical Amendments elimina te the need for manufacturers to provide such outdated information; all other cur rent California label requirements remain in effect. The labeling requirements are no t applicable to heavy-duty engines or vehicles (gross vehicle weight rating over 14,000 l bs.), and any amendments to the labeling requirements applicable to this class of e ngines or vehicles would be addressed in a separate heavy-duty engine, in-use c ompliance rulemaking.

IV. CRITERIA FOR DETERMINING WHETHER AMENDMENTS ARE WITHIN THE

SCOPE OF PREVIOUS WAIVERS

A. The Basic Criteria for Granting Waivers of Preem ption and Confirmations that Amendments Are Within the Scope of Previous Wa ivers

Section 209(b) of the CAA sets forth the protocol f or granting California waivers to the general preemption of section 209(a), which prohibi ts states and their local subdivisions from adopting and enforcing standards and other req uirements relating to the control of

emissions from new motor vehicles and new motor veh icle engines. Under section 209(b), the Administrator must grant a waiv er to California if the state has determined that its standards will be, in the aggre gate, at least as protective of public health and welfare as applicable federal standards, unless the Administrator finds that (1) the state’s protectiveness determination is arb itrary and capricious, (2) California does not need separate state standards to meet comp elling and extraordinary conditions, or (3) the state’s standards and accomp anying enforcement procedures are not consistent with section 202(a) of the CAA.9

In considering whether to grant waivers for accompa nying enforcement procedures tied to standards for which a waiver has already been gr anted, the Administrator has long held that he will only address questions as to (1) whether the enforcement procedures are so lax that they threaten the validity of Calif ornia’s determination that its standards are as protective of public health and welfare as a pplicable federal standards and, (2) whether the enforcement procedures are consiste nt with section 202(a). 13

The Administrator has applied a similar analysis in finding that amendments to a standard or regulation are within the scope of a pr eviously granted waiver.

If California acts to amend a previously waived sta ndard or accompanying enforcement procedure, the change may be included w ithin the scope of the previous waiver if it does not undermine California ’s determination that its standards, in the aggregate, are as protective of p ublic health and welfare as comparable Federal standards, does not affect the c onsistency of California’s requirements with section 202(a) of the [CAA], and raises no new issues affecting the Administrator’s previous waiver deter mination. 14

B. Principles Followed in Granting CAA Section 209( b) Waivers

1. The Burden Is on Those Who Challenge the Request

In considering a waiver or a within-the-scope reque st, California’s regulations and protectiveness determination are presumed to satisf y the criteria for granting a waiver or authorization, and the burden to show otherwise is on those persons challenging the waiver request. 15 As held by the court in MEMA and long followed by EPA:

The language of the statute and its legislative his tory indicate that California’s regulations and California’s determination that the y comply with the statute, when presented to the Administrator are presumed to sati sfy the waiver requirements and that the burden of proving otherwise is on whoe ver attacks them. [It is they who] bear the burden of persuading the Administrato r that the waiver request

should be denied. 16

2. The Scope of the Waiver Hearing Should Be Limite d

As indicated above, the scope of the Administrator’ s inquiry in determining whether to deny a waiver request is limited by the express ter ms of CAA sections 209(b)(1). Once California determines that its standards are, in th e aggregate, at least as protective of

13 Motor and Equipment Manufacturers Association v. EP A (MEMA) (D.C. Cir. 1979) 627 F.2d. 1095,
1111, 1113.

14 Decision Document accompanying scope of waiver det ermination in 51 Fed.Reg. 12391 (April 10, 1986), at p. 2 (footnotes omitted); see also 46 Fed .Reg. 36742 (July 15, 1981).

15 Motor Equipment Manufacturers Association v. EPA (MEMA) (D.C. Cir. 1979) 627 F.2d 1095, 1121

. 16 Id .; See also Decision Document accompanying OBD II W aiver Determination, at p. 15-16.10

public health and welfare as applicable federal sta ndards, the Administrator must grant the waiver unless one of the three specified findin gs can be made.

This reading of the statute is consistent with the decision in MEMA and prior EPA waiver decisions interpreting CAA section 209(b), w hich hold that the review of California’s decision to adopt separate standards i s a narrow one. 17 In granting the waiver for the OBD II regulation in 1996, Administr ator Carol Browner concluded that she must grant a waiver if she could not find suffi cient evidence in the record to support any of the above listed criteria that would dictate not granting the waiver. 18 Much earlier

Administrator William D. Ruckleshaus stated:

The law makes it clear that the waiver request cann ot be denied unless the specific findings designated in the statute can pro perly be made. The issue of whether a proposed California requirement is likely to result in only marginal improvement in air quality not commensurate with it s cost or is otherwise an arguably unwise exercise of regulatory power is not legally pertinent to my

decision under section 209 . . . . 19

3. Deference Must Be Given to California’s Policy J udgments

As indicated in the waiver decisions cited above, i n granting waivers to California’s motor vehicle program, EPA has routinely deferred t o the policy judgments of California’s decision-makers. EPA has recognized t hat the intent of Congress in creating a limited review of California’s determina tions regarding its need for separate standards was to ensure that the federal government did not second-guess the wisdom of state policy. 20 Administrators have recognized that the deference is wide-ranging:

The structure and history of the California waiver provision clearly indicate both a Congressional intent and an EPA practice of leaving the decision on ambiguous and controversial matters of public po licy to California’s judgment.

* * * * * *

It is worth noting . . . I would feel constrained t o 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. The whole approach of the Clean Air Act is to force the development of new types of emission control techno logy where that is needed by compelling the industry to “catch up” to some de gree with newly promulgated standards. Such an approach . . . may be attended with costs, in the shape of a

17 See 40 Fed.Reg. 23102, 23103 (May 28, 1975).

18 61 Fed.Reg. 53371 (October 11, 1996).

19 36 Fed.Reg. 17158 (August 31, 1971). See also 40 Fed.Reg. 23102, 23104; 58 Fed.Reg. 4166 (January 7, 1993), Decision Document, at p. 20.

20 40 Fed.Reg. 23102, 23103.11

reduced product offering, or price or fuel economy penalties, and by risks that a wider number of vehicle classes may not be able to complete their development work in time. Since a balancing of these 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 jud gments on this score. 21

V. THE 2006 TECHNICAL AMENDMENTS FALL WITHIN THE SC OPE OF

PREVIOUS WAIVERS OF PREEMPTION

The 2006 Technical Amendments fall within the scope of the waiver of preemption published April 22, 2003, for California’s LEV II A mendments and follow-up amendments to the LEV II regulations. 22 This waiver and the California standards and test procedures covered by it are described in Sect ion II.

In adopting the 2006 Technical Amendments in Resolu tion 06-20, the Board expressly found that the Amendments fall within the scope of previous waivers in that the amendments do not undermine the Board’s previous de terminations that its emission standards, in the aggregate, are at least as protec tive of public health and welfare as comparable federal standards; do not affect the con sistency of California’s requirements with section 202(a) of the CAA; and raise no new is sues affecting the Administrator’s previous waiver determinations. (Resolution 06-20, pp. 4-5 (Attachment 4)). The 2006 Technical Amendments accordingly fall within the sc ope of the previous waiver for the LEV II regulations. Application of each of the sco pe-of-the-waiver criterion is discussed

below.

A. The Amendments Do Not Undermine California’s Pro tectiveness Determination Regarding the LEV II Regulations

The 2006 Technical Amendments do not undermine the Board’s previous

determinations that the new motor vehicle emission standards established by the LEV II amendments (as amended by the LEV II follow-up amen dments), are, in the aggregate, at least as protective of public health and welfare as applicable federal standards. The Board based its previous protectiveness determinati ons upon a comparison of the LEV II emission standards, as amended by the LEV II follow-up amendments, to the applicable federal Tier 2 standards. This comparis on indicated that the LEV II regulations were more stringent than the federal Ti er 2 program in several respects, especially in light of the more stringent NOx stand ards applicable to 2007 through 2010 model-year vehicles. In addition, the LEV II evapo rative emissions standards are more stringent numerically than the comparable federal T ier 2 standards. Moreover, the LEV II follow-up amendments ensured that any federal ve hicles that were cleaner than their California counterparts would be certified in Calif ornia.

21 40 Fed.Reg. 23102, 23104 (emphasis added). See a lso 58 Fed.Reg. 4166, Decision Document, at p. 64.

22 California State Motor Vehicle Pollution Control St andards; Waiver of Federal Preemption; Notice of

Decision , 68 Fed Reg. 19811 (April 11, 2003).12

In granting California a waiver of preemption for t he LEV II amendments, the

Administrator of the EPA stated that she could not find that “CARB’s determination, that its LEV II Amendments are, in the aggregate, at lea st as protective of public health and welfare, is arbitrary and capricious.” 23

The 2006 Technical Amendments at issue in this requ est only modify the evaporative, refueling, and exhaust emission test procedures. T hey do not affect the stringency of either the underlying exhaust, evaporative or refue ling emission standards or their associated test procedures. Furthermore, the 2006 Technical Amendments incorporate safeguard measures to ensure that any reduction in test burdens will not adversely affect the stringency of any applicable exhaust, ev aporative or refueling emission standards. The Amendments also track amendments pr eviously adopted for the federal test procedures. Therefore, the Amendments cannot undermine the Board’s protectiveness determination for the LEV II regulat ions.

B. The Amendments Do Not Affect the Consistency wit h CAA Section 202(a)

The Administrator has stated that California’s stan dards and accompanying test procedures are inconsistent with section 202(a) if: (1) there is inadequate lead time to implement the new procedures, giving appropriate co nsideration to the cost of compliance within the applicable time frame, or (2) the federal and California test procedures impose inconsistent certification requir ements so as to make manufacturers unable to meet both sets of requirements with the s ame vehicle. 24

No manufacturer raised any lead time concerns regar ding the 2006 Technical Amendments covered by this letter, and given that t he effective date of the Amendments was more than a year later than the effe ctive date of EPA’s direct final rule establishing identical test procedure amendmen ts, the Administrator cannot find that the Amendments do not provide sufficient lead time to implement the new procedures. Moreover, EPA stated in its analogous direct final rule that the test procedure amendments are intended to reduce manufac turers’ testing burdens associated with conducting evaporative/refueling te sts. 25

The Amendments also do not present any issues of te st procedure inconsistency. Indeed, CARB primarily proposed the 2006 Technical Amendments to harmonize California’s evaporative emission, refueling emissi on, and exhaust emission test procedures with the identical test procedure amendm ents adopted by the EPA in its December 8, 2005 direct final rulemaking, and the B oard found that if the Amendments

23 68 Fed. Reg. 19812 (April 22, 2003). See also Dec ision Document accompanying LEV II Waiver Determination, at pp. 9-11.

24 See, e.g., 46 Fed.Reg. 26371, 26371 (May 12, 1981). Even where there is incompatibility between the California and federal test procedures, EPA has gra nted a waiver under circumstances where EPA accepts a demonstration of federal compliance based on California test results, thus obviating the nee d for two separate tests. (43 Fed.Reg. 1829, 1830 (J anuary 12, 1978); 40 Fed.Reg. 30311, 30314 (July 18

, 1975).)

25 70 Fed. Reg. 72917, 72918, 72920, 72924 and 72925 (Dec. 8, 2005)13

were not adopted, inconsistencies would exist betwe en the California and federal evaporative and refueling emissions test procedures , dynamometer test provisions regarding testing of four wheel and all wheel drive vehicles, and vehicle labeling requirements. 26

C. The 2006 Technical Amendments Raise No New Issue s Affecting the Waiver Determination for the LEV II Regulations

We are not aware of any new issues presented by the 2006 Technical Amendments

that affect the waiver determination for the LEV II regulations. Only two public comments were received during the 45-day comment pe riod; Ferrari S.p.A. expressed support for the proposal and the other comment did not pertain to the proposed

amendments.

D. The Labeling Requirements Constitute “Other Cond itions Precedent” that do not Require Further Waiver Action

The portion of the Amendments concerning labeling r equirements for passenger cars, light-duty trucks and medium-duty vehicles 27 provide manufacturers greater flexibility in label content and design by no longer requiring out dated information. Because they do not pertain to a manufacturer’s ability to certify and produce motor vehicles that comply with the applicable emission standards, the emissio n control label specifications are not standards or accompanying enforcement procedures. 28 The specifications are, however, subject to federal preemption pursuant to Clean Air Act Section 209(a) because they are a condition precedent to the initi al retail sale of new vehicles in

California. 29

EPA has stated with respect to the application of S ection 209 of the Clean Air Act:

Once California has received a waiver of federal pr eemption for its standards and enforcement procedures for a class of vehicles, it may adopt other conditions precedent to initial retail sale, titling or regist ration of the subject class of vehicles without the necessity of receiving a further waiver of Federal preemption. 30

The EPA has also stated in a prior determination re garding emission control labeling:

EPA’s prior issuance of waivers for the affected cl asses of vehicles and engines, based on California’s standards and/or accompanying enforcement procedures, removes the prohibitions of section 209(a) regardin g such conditions precedent

26 Resolution 06-20, p. 3 (Attachment 4).

27 As previously noted, the Amendments do not modify current labeling requirements applicable to heavy-duty vehicles or engines. Final Statement of Reasons, p. 6 (Attachment 5).

28 54 Fed.Reg. 13427 (April 3, 1989); 43 Fed.Reg. 36 679 (August 18, 1978).

29 See, e.g., 49 Fed.Reg. 18887 (May 5, 1984); 47 Fed. Reg. 1015 (January 8, 1982); 46 Fed.Reg. 36237 (July 14, 1981).

30 46 Fed.Reg. 36742 (July 15, 1981), footnotes omitt ed; 45 Fed.Reg. 54131 (August 14, 1980); 43 Fed.Reg. 36579 (August 18, 1978).14

for these classes. Hence no waiver under section 2 09(b) is required for California to enforce the amended [Emission Control ] Label Specifications. 31

As discussed in Section II. above, CARB has previou sly received a section 209(b) waiver for the passenger car, light-duty truck and medium-duty vehicle emission standards and associated test procedures incorporat ed within the scope of the LEV II and follow-up amendments. Therefore, with respect to the amendments to the vehicle label specifications, CARB requests confirmation th at the previous section 209(b) waiver issued for CARB’s LEV II and follow-up emiss ion standards and test procedures relieve CARB of the need to demonstrate that the sp ecifications independently meet the waiver criteria and that the amended specifications may be enforced in California without further action by the Administrator.

IV. CONCLUSION

Based on the foregoing, CARB respectfully requests that the Administrator confirm that the 2006 Technical Amendments fall within the scope of previous waivers of preemption under CAA section 209(b). For the label specificat ions, the Board concludes that it may enforce the amended specifications without further action by the Administrator. To assist you in reviewing the Amendments, CARB is enc losing two CD-ROMs, each containing the following documents to be included i n the record of this waiver proceeding.

Materials from the 2006 Technical Amendments Rulema king

1. Public Hearing Notice, dated March 28, 2006

2. Staff Report: Initial Statement of Reasons for Proposed Rulemaking, with Appendices A through F

3. Copy of Slides for Staff Presentation

4. Resolution 06-20, with Attachments A through D, dated June 22, 2006

5. Final Statement of Reasons for Rulemaking, Inclu ding Summary of Comments and Agency Response.

6. Fully endorsed STD 400 face sheet and Final Regu lation Order as approved by OAL and filed with the Secretary of State January 1 8, 2007, for amendments to title 13, California Code of Regulations, sections 1961, 1976, and 1978 and incorporated test procedures.

7. The final versions of the documents incorporated by reference in the regulations contained in the Final Regulation Order:

31 54 Fed.Reg. 13427 (April 3, 1989).15 California Exhaust Emission Standards and Test Proc edures for 2001 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, as amended June 22, 2006, incorporated by reference in § 1961, title 13, CCR;

California Evaporative Emission Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles, as amended June 22 , 2006, incorporated by reference in § 1976, title 13, CCR;

California Refueling Emission Standards and Test Pr ocedures for 2001 and Subsequent Model Motor Vehicles, as amended June 22 , 2006, incorporated by reference in § 1978, title 13, CCR.

CARB Contacts

Technical questions or requests for additional tech nical information on this item should be directed to Sharon Lemieux, Manager of CARB’s Em issions Research Section, at (626) 575-7067. Legal questions should be directed to Alex Wang, Senior Staff Counsel, at (916) 323-9610.