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 

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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) confirm that the 2006 technical 

amendments to the California motor vehicle evaporative and exhaust emissions test 

procedures, onboard refueling vapor recovery and spitback test procedures, and vehicle 

emission control label requirements (the 2006 Technical Amendments or the 

Amendments) fall within the scope of a waiver of preemption previously granted under 

the federal Clean Air Act (CAA) section 209(b). This Section describes the process by 

which CARB adopted the Amendments. Section II describes the pertinent standards, 

test procedures, and related requirements for which waivers have previously been 

issued. Section III describes the 2006 Technical Amendments. Section IV describes the 

criteria for determining whether California amendments are within the scope of previous 

waivers. Section V demonstrates that the 2006 Technical Amendments meet the 

criteria for falling within the scope of the previous 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 counterpart; EPA has already incorporated 

each of the subject amendments into the federal test procedures and labeling 

requirements by adopting a direct final rule on December 8, 2005, which became 

effective February 6, 2006.1

 At the hearing, the Board adopted the Amendments as 

 

1

United States Environmental Protection Agency. “Control 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 Administrative Law (OAL) for review on 

December 4, 2006, and were approved by OAL and filed with California’s Secretary of 

State on January 18, 2007. The 2006 Technical Amendments became effective 

February 17, 2007. 

The specific regulatory text and the incorporated documents amended by the 2006 

Technical Amendments are title 13, California Code of Regulations (CCR), sections 

1961, 1976 and 1978 (see Attachment 6), and three test procedure documents 

incorporated respectively in those three sections: "California Exhaust Emission 

Standards and Test Procedures for 2001 and Subsequent Model Passenger Cars, 

Light-Duty Trucks, and Medium-Duty Vehicles,” “California Evaporative Emission 

Standards and Test Procedures for 2001 and Subsequent Model Motor Vehicles,” and 

“California Refueling Emission Standards and Test Procedures for 2001 and 

Subsequent Model Motor Vehicles” (see Attachment 7). 

II. PREEXISTING CALIFORNIA EVAPORATIVE EMISSION STANDARDS, 

ONBOARD REFUELING VAPOR RECOVERY TEST PROCEDURES AND 

VEHICLE LABELING PROVISIONS FOR WHICH A WAIVER HAS BEEN 

GRANTED 

A. Evaporative Emission Standards 

On April 22, 2003, the EPA Administrator granted California a waiver of preemption 

pursuant to section 209(b) of the CAA for CARB’s Low-Emission Vehicle Amendments 

(LEV II Amendments) to CARB’s Low-Emission Vehicle program.2

 The LEV II 

Amendments established more stringent evaporative emission standards and 

associated test procedures applicable to 2004 and subsequent model year motor 

vehicles, and ensured that evaporative emissions are 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 standards and test procedures 

applicable to light- and medium-duty gasoline-fueled vehicles.3

 The third set of 

 

Dynamometer Regulations, and Vehicle Labeling,” United States Environmental Protection Agency, 70 

Fed.Reg. 72917 (December 8, 2005) http://www.epa.gov/fedrgstr/EPA-AIR/2005/December/Day08/a23714.htm. 

2

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

3

 The second set of amendments: established particulate matter standards for light-and medium-duty 

Otto-cycle vehicles, established non-methane organic gas (NMOG) certification factors for gasoline-fueled 

vehicles, extended the applicability of generic reactivity adjustment factors (RAFs) for all fuels except 

gasoline, revised emission offset requirements for “AB 965” vehicles, added intermediate in-use 

compliance standards for light-duty trucks engineered for heavier duty cycles and for vehicles certified to 

optional 150,000 mile standards for LEV, ULEV or SULEV standards, revised California’s NMOG test 

procedures, and revised the fleet average NMOG requirements for independent low volume 

manufacturers. 
3

follow-up amendments to the LEV II regulations included amendments to the then 

existing “California Refueling Emission Standards and Test Procedures (ORVR 

Standards and TPs), and revisions to vehicle labeling 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 Amendments 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 standards and test procedures were 

nearly identical to ORVR requirements adopted by EPA, and are intended to ensure 

that hydrocarbon vapors are not released to the atmosphere during vehicle refueling. 

The Administrator has granted waivers of preemption for both California’s original 

adoption of ORVR requirements and subsequent amendments 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 chassis dynamometer testing of 4WD 

vehicles are incorporated within the exhaust and evaporative 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 requirements for new vehicles and 

engines were last substantively modified by the first set of LEV II follow-up 

amendments, which were covered by the waiver granted by the Administrator for the 

LEV II Amendments.6

III. SUMMARY OF THE 2006 TECHNICAL AMENDMENTS TO THE CALIFORNIA 

MOTOR VEHICLE EVAPORATIVE AND EXHAUST EMISSIONS TEST 

PROCEDURES 

A. Development of the Amendments 

The 2006 Technical Amendments are the result of continued efforts to streamline and to 

harmonize federal and California evaporative emission testing requirements. In 1996, 

EPA, CARB, and motor vehicle manufacturers initiated a collaborative effort to evaluate 

whether existing evaporative test procedures could be “streamlined” without impacting 

program stringency. On December 31, 2002, EPA published 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 gaseous fueled vehicles exempted from California 

requirements are still subject to federal requirements, 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 rulemaking). 

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 refueling emissions test procedures that 

could be made via a direct final rulemaking. Additional minor amendments were also 

included to address four-wheel drive dynamometer procedures, and to clarify vehicle 

label requirements. On December 8, 2005, EPA published a direct final rule 

incorporating the suggested modifications identified 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 February 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 requirements 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 Amendments will reduce manufacturer 

testing burdens for evaporative emission-related certification and in-use vehicle 

compliance requirements without comprising the stringency of the test procedures or 

the effectiveness of the underlying emission standards,9 and will also serve to further 

align and harmonize California and EPA test procedures. 

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 Emission Test Procedures 

Prior to this rulemaking, compliance with the LEV II 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 the 2D+HS test sequence requires 

approximately four days. 

 

7

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

8 United States Environmental Protection Agency. “Control of Air Pollution From New Motor Vehicles and 

New Motor Vehicle Engines; Technical Amendments to Evaporative Emissions Regulations, 

Dynamometer Regulations, and Vehicle Labeling,” United 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 CARB’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 pursuant 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 compliance program (i.e., the In-Use 

Verification Program or “IUVP”10) has required manufacturers to procure and emission 

test a specified number of in-use vehicles on an “as received” basis at certain mileage 

intervals. Under the IUVP, vehicles must show compliance with the 3D+HS and 2D+HS 

emission standards; failure to demonstrate compliance 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 have a higher probability of noncompliance. 

The preexisting Onboard Refueling Vapor Recovery (ORVR) requirements have 

ensured that hydrocarbon vapors are not released to the atmosphere during the 

refueling process. Certification compliance with the ORVR standards is demonstrated 

by a single test sequence. Test preparations involve steps to condition and stabilize the 

ORVR and fuel system in a similar manner done for the evaporative emission test 

sequences. The ORVR sequence allows for evaluations of both integrated and 

non-integrated evaporative/refueling systems.11 Vehicle certification also has required a 

demonstration of compliance with the refueling spitback standard. The ORVR test 

sequence takes three days to conduct. 

2. Authorizing an Optional Demonstration of Compliance – Supplemental 

Two-Day Diurnal Standard for Certification 

The primary purpose of the 2D+HS test is to gauge the evaporative emission control 

system’s capability to adequately purge the canister 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. Consequently, the 2D+HS test has become 

somewhat redundant for certification purposes. The 2006 Technical Amendments 

therefore provide manufacturers the option to certify 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 complies 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 exists and compliance with the 2D+HS 

emission standard. Also, although this option exempts manufacturers from directly 

conducting the 2D+HS test during certification, such vehicles must still comply with the 

emission standard in-use. This option is only available for certification of current 

technology, gasoline- and ethanol-fueled vehicles that are configured with conventional 

evaporative emission control systems (e.g., conventional fuel tank materials, liquid seal 

 

10 The In-Use Verification Program was adopted as part 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 refueling processes. A non-integrated system uses two 

separate canisters – one for evaporative, and one for refueling emissions. Only integrated systems have 

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 Monitoring 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 thermocouples into the sides of the fuel tank, 

which is burdensome because the installation is difficult to perform and requires 

follow-up repairs or complete replacement of the tank. Manufacturers have had the 

flexibility to use an alternative running loss test procedure (including the monitoring of 

the liquid fuel temperature) if they can demonstrate that the alternative procedure 

provides an equivalent level of stringency as the prescribed running loss test procedure. 

However, the preexisting regulations have required CARB to use the specified running 

loss test procedure, even if a manufacturer certified a vehicle using an alternative 

method. The 2006 Technical Amendments revise the Evaporative Emission Standards 

and Test Procedures to clarify that CARB may conduct 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 Methods 

The evaporative emission test procedures have required that a test vehicle’s carbon 

canister remain installed in the vehicle, unless necessary access to the canister’s 

service ports is unavailable. In the latter situation, the canister may be removed to allow 

completion of the basic purge or load processes, but such component removals must be 

completed carefully because failure to exercise such care could produce leaks or other 

system malfunctions. Consequently, the preexisting procedures have been 

burdensome for manufacturers in situations where the 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 alternative canister preconditioning method. 

The alternative method must be as, or more, stringent than the comparable method 

already specified in the procedures and requires advance approval from CARB’s 

Executive Officer. CARB may use either a manufacturer’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 Evaporative 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, not 
7

both) is required for all applicable fuel types of each evaporative/refueling family. 

Specifically, the modifications eliminate an ambiguity 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 petroleum gas- and non-dedicated 

compressed natural gas-fueled12 (i.e., gaseous-fueled) IUVP vehicles, they must use 

the 3D+HS test. 

6. Onboard Refueling Vapor Recovery and Spitback Test Procedures 

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

be disconnected from the canister while the drain-and-10-percent-fill step of the 

refueling test sequence is performed. Manufacturers 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 procedures to specify that 

disconnection of the canister and fuel tank-vent hose assembly is optional when those 

specific drain-and-fill steps are performed. A manufacturer will be required to indicate in 

the application for certification which type of canister and vent hose assembly 

configuration will be used for test purposes, and CARB will utilize the same 

configuration for certification confirmatory test purposes. 

7. Non-Substantive Changes 

The 2006 Technical Amendments also include several minor, non-substantive 

amendments to maintain harmonization with the applicable federal evaporative 

requirements. Specifically, the amendments reincorporate certain test waiver provisions 

into the ORVR procedures (relating to ORVR and refueling spitback tests for 

certification vehicles) that were inadvertently omitted 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 adding page numbers to the 

“California Evaporative Emission Standards and Test Procedures for 2001 and 

Subsequent Model Motor Vehicles.” Although a “Table of Contents” was included when 

these test procedures were initially adopted, individual 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 dynamometer testing procedures and 

specifications were initially developed. Consequently, when certifying a 4WD vehicle, 

 

12 An example of a non-dedicated compressed natural gas-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 modifications 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 vehicle’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 test procedures to allow a 

manufacturer to perform certification emission tests of 4WD vehicles on 4WD 

dynamometers. A manufacturer can still elect to certify a 4WD vehicle in a 2WD mode 

of dynamometer operation, but needs advance Executive Officer approval to use a 2WD 

dynamometer to conduct IUVP testing of a 4WD vehicle that was certified on a 4WD 

mode of dynamometer operation. 

D. Vehicle Label Amendments 

Some of the information that has been required on California emission control labels is 

outdated (e.g., engine tune-up specifications and adjustments, vacuum hose routing 

diagrams, etc.) CARB has already recognized that the requirement of a 

machine-readable Vehicle Emission Configuration (VEC) bar code on labels is 

unnecessary. The 2006 Technical Amendments eliminate the need for manufacturers 

to provide such outdated information; all other current California label requirements 

remain in effect. The labeling requirements are not applicable to heavy-duty engines or 

vehicles (gross vehicle weight rating over 14,000 lbs.), and any amendments to the 

labeling requirements applicable to this class of engines or vehicles would be 

addressed in a separate heavy-duty engine, in-use compliance rulemaking. 

IV. CRITERIA FOR DETERMINING WHETHER AMENDMENTS ARE WITHIN THE 

SCOPE OF PREVIOUS WAIVERS 

A. The Basic Criteria for Granting Waivers of Preemption and Confirmations 

that Amendments Are Within the Scope of Previous Waivers 

Section 209(b) of the CAA sets forth the protocol for granting California waivers to the 

general preemption of section 209(a), which prohibits states and their local subdivisions 

from adopting and enforcing standards and other requirements relating to the control of 

emissions from new motor vehicles and new motor vehicle engines. Under 

section 209(b), the Administrator must grant a waiver to California if the state has 

determined that its standards will be, in the aggregate, 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 arbitrary and capricious, (2) California 

does not need separate state standards to meet compelling and extraordinary 

conditions, or (3) the state’s standards and accompanying enforcement procedures are 

not consistent with section 202(a) of the CAA. 
9

In considering whether to grant waivers for accompanying enforcement procedures tied 

to standards for which a waiver has already been granted, 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 California’s determination that its standards 

are as protective of public health and welfare as applicable federal standards and, 

(2) whether the enforcement procedures are consistent 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 previously granted waiver. 

If California acts to amend a previously waived standard or accompanying 

enforcement procedure, the change may be included within the scope of the 

previous waiver if it does not undermine California’s determination that its 

standards, in the aggregate, are as protective of public health and welfare as 

comparable Federal standards, does not affect the consistency of California’s 

requirements with section 202(a) of the [CAA], and raises no new issues 

affecting the Administrator’s previous waiver determination.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 request, California’s regulations and 

protectiveness determination are presumed to satisfy 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 history indicate that California’s 

regulations and California’s determination that they 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. [It is they 

who] bear the burden of persuading the Administrator that the waiver request 

should be denied.16

2. The Scope of the Waiver Hearing Should Be Limited

As indicated above, the scope of the Administrator’s inquiry in determining whether to 

deny a waiver request is limited by the express terms of CAA sections 209(b)(1). Once 

California determines that its standards are, in the aggregate, at least as protective of 

 

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

1111, 1113. 

14 Decision Document accompanying scope of waiver determination 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 Waiver Determination, at p. 15-16. 
10

public health and welfare as applicable federal standards, the Administrator must grant 

the waiver unless one of the three specified findings 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), which hold that the review of 

California’s decision to adopt separate standards is a narrow one.17 In granting the 

waiver for the OBD II regulation in 1996, Administrator Carol Browner concluded that 

she must grant a waiver if she could not find sufficient 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 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 air quality not commensurate with its 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 Judgments

As indicated in the waiver decisions cited above, in granting waivers to California’s 

motor vehicle program, EPA has routinely deferred to the policy judgments of 

California’s decision-makers. EPA has recognized that the intent of Congress in 

creating a limited review of California’s determinations 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 policy to California’s 

judgment. 

* * * * * * 

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. The whole approach of the Clean Air Act is to force the 

development of new types of emission control technology where that is needed 

by compelling the industry to “catch up” to some degree 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 judgments on this score.21

V. THE 2006 TECHNICAL AMENDMENTS FALL WITHIN THE SCOPE 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 Amendments 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 Section II. 

In adopting the 2006 Technical Amendments in Resolution 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 determinations that its emission 

standards, in the aggregate, are at least as protective of public health and welfare as 

comparable federal standards; do not affect the consistency of California’s requirements 

with section 202(a) of the CAA; and raise no new issues affecting the Administrator’s 

previous waiver determinations. (Resolution 06-20, pp. 4-5 (Attachment 4)). The 2006 

Technical Amendments accordingly fall within the scope of the previous waiver for the 

LEV II regulations. Application of each of the scope-of-the-waiver criterion is discussed 

below. 

A. The Amendments Do Not Undermine California’s Protectiveness 

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 amendments), are, in the aggregate, 

at least as protective of public health and welfare as applicable federal standards. The 

Board based its previous protectiveness determinations 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 comparison indicated that the LEV II 

regulations were more stringent than the federal Tier 2 program in several respects, 

especially in light of the more stringent NOx standards applicable to 2007 through 2010 

model-year vehicles. In addition, the LEV II evaporative emissions standards are more 

stringent numerically than the comparable federal Tier 2 standards. Moreover, the LEV 

II follow-up amendments ensured that any federal vehicles that were cleaner than their 

California counterparts would be certified in California. 

 

21 40 Fed.Reg. 23102, 23104 (emphasis added). See also 58 Fed.Reg. 4166, Decision Document, at 

p. 64. 

22

 California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption; Notice of 

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

In granting California a waiver of preemption for the 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 least as protective of public health and 

welfare, is arbitrary and capricious.”23

The 2006 Technical Amendments at issue in this request only modify the evaporative, 

refueling, and exhaust emission test procedures. They do not affect the stringency of 

either the underlying exhaust, evaporative or refueling 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, evaporative or refueling emission 

standards. The Amendments also track amendments previously adopted for the federal 

test procedures. Therefore, the Amendments cannot undermine the Board’s 

protectiveness determination for the LEV II regulations. 

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

The Administrator has stated that California’s standards and accompanying test 

procedures are inconsistent with section 202(a) if: (1) there is inadequate lead time to 

implement the new procedures, giving appropriate consideration to the cost of 

compliance within the applicable time frame, or (2) the federal and California test 

procedures impose inconsistent certification requirements so as to make manufacturers 

unable to meet both sets of requirements with the same vehicle.24

No manufacturer raised any lead time concerns regarding the 2006 Technical 

Amendments covered by this letter, and given that the effective date of the 

Amendments was more than a year later than the effective date of EPA’s direct final 

rule establishing identical test procedure amendments, 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 manufacturers’ testing burdens 

associated with conducting evaporative/refueling tests.25

The Amendments also do not present any issues of test procedure inconsistency. 

Indeed, CARB primarily proposed the 2006 Technical Amendments to harmonize 

California’s evaporative emission, refueling emission, and exhaust emission test 

procedures with the identical test procedure amendments adopted by the EPA in its 

December 8, 2005 direct final rulemaking, and the Board found that if the Amendments 

 

23 68 Fed. Reg. 19812 (April 22, 2003). See also Decision 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 granted a waiver under circumstances where EPA 

accepts a demonstration of federal compliance based on California test results, thus obviating the need 

for two separate tests. (43 Fed.Reg. 1829, 1830 (January 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 between 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 Issues 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 period; 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 Conditions Precedent” that 

do not Require Further Waiver Action 

The portion of the Amendments concerning labeling requirements for passenger cars, 

light-duty trucks and medium-duty vehicles27 provide manufacturers greater flexibility in 

label content and design by no longer requiring outdated 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 emission 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 initial retail sale of new vehicles in 

California.29

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

Once California has received a waiver of federal preemption for its standards and 

enforcement procedures for a class of vehicles, it may adopt other conditions 

precedent to initial retail sale, titling or registration 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 regarding emission control labeling: 

EPA’s prior issuance of waivers for the affected classes of vehicles and engines, 

based on California’s standards and/or accompanying enforcement procedures, 

removes the prohibitions of section 209(a) regarding 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. 36679 (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 omitted; 45 Fed.Reg. 54131 (August 14, 1980); 43 

Fed.Reg. 36579 (August 18, 1978). 
14

for these classes. Hence no waiver under section 209(b) is required for 

California to enforce the amended [Emission Control] Label Specifications.31

As discussed in Section II. above, CARB has previously received a section 209(b) 

waiver for the passenger car, light-duty truck and medium-duty vehicle emission 

standards and associated test procedures incorporated 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 that the previous section 209(b) 

waiver issued for CARB’s LEV II and follow-up emission standards and test procedures 

relieve CARB of the need to demonstrate that the specifications 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 specifications, 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 enclosing two CD-ROMs, each 

containing the following documents to be included in the record of this waiver 

proceeding. 

Materials from the 2006 Technical Amendments Rulemaking 

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, Including Summary of Comments 

and Agency Response. 

6. Fully endorsed STD 400 face sheet and Final Regulation Order as approved by 

OAL and filed with the Secretary of State January 18, 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 Procedures 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 Procedures 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 technical information on this item should 

be directed to Sharon Lemieux, Manager of CARB’s Emissions Research Section, at 

(626) 575-7067. Legal questions should be directed to Alex Wang, Senior Staff 

Counsel, at (916) 323-9610.