Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 34693 

1See 72 FR 21260 (Apr. 30, 2007). 

2 73 FR 12156 (March 6, 2008). 

3 74 FR 7040 (February 12, 2009). 

4 74 FR 32744 (July 8, 2009). The Chamber of 

Commerce of the United States and the National 

Automobile Dealers Association (‘‘NADA’’) sought 

review of EPA’s July 8, 2009 waiver decision in the 

United States Court of Appeals for the District of 

Columbia Circuit (No. 09–1237). On April 29, 2011, 

the Court dismissed the petition for review for lack 

of jurisdiction. 

5California Code of Regulations, Title 13 

1961.1(a)(1)(A)(i). 

6California Code of Regulations, Title 13 

1961(a)(1)(B). 

(202) 502–8659. Although the 

Commission strongly encourages 

electronic filing, documents may also be 

paper-filed. To paper-file, mail an 

original and seven copies to: Kimberly 

D. Bose, Secretary, Federal Energy 

Regulatory Commission, 888 First 

Street, NE., Washington, DC 20426. 

More information about this project, 

including a copy of the application, can 

be viewed or printed on the ‘‘eLibrary’’ 

link of Commission’s Web site at 

http://www.ferc.gov/docs-filing/ 

elibrary.asp. Enter the docket number 

(P–14066–000) in the docket number 

field to access the document. For 

assistance, contact FERC Online 

Support. 

Dated: June 7, 2011. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2011–14630 Filed 6–13–11; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9318–7] 

California State Motor Vehicle 

Pollution Control Standards; Withinthe-Scope Determination for 

Amendments to California’s Motor 

Vehicle Greenhouse Gas Regulations; 

Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Within-the-Scope 

Determination. 

SUMMARY: EPA confirms that 

amendments promulgated by the 

California Air Resources Board 

(‘‘CARB’’) are within the scope of an 

existing waiver of preemption issued by 

EPA for California’s motor vehicle 

greenhouse gas emissions program. EPA 

also finds, in the alternative, that 

California’s standards, as amended, 

meet the requirements for a new waiver 

of preemption. 

DATES: Petitions for review must be filed 

by August 15, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2010–0653. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, and public comments, 

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, located at 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 electronic mail (email) address for the Air and Radiation 

Docket is: a-and-r-Docket@epa.gov, 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. You may access 

EPA dockets at http:// 

www.regulations.gov. After opening the 

http://www.regulations.gov Web site, 

enter EPA HQ–OAR–2010–0653 in the 

‘‘Enter Keyword or ID’’ fill-in box to 

view documents in the record of CARB’s 

passenger vehicle GHG amendments 

within-the-scope waiver request. 

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 many historical 

documents regarding California’s 

greenhouse gas waiver request, 

including those associated with this 

within-the-scope confirmation request; 

the page is accessible at http:// 

www.epa.gov/otaq/climate/cawaiver.htm. OTAQ also maintains a 

Web page that contains general 

information on its review of California 

waiver 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: 

Kristien G. Knapp, Attorney-Advisor, 

Compliance and Innovative Strategies 

Division, Office of Transportation and 

Air Quality, U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue (6405J), NW., Washington, DC 

20460. Telephone: (202) 343–9949. Fax: 

(202) 343–2800. E-mail: 

knapp.kristien@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Chronology 

On December 21, 2005, the California 

Air Resources Board (‘‘CARB’’) 

submitted a request to EPA, seeking a 

waiver of preemption under section 

209(b) of the Clean Air Act for 

California’s motor vehicle greenhouse 

gas (‘‘GHG’’) regulations.1 EPA initially 

denied that request, and published that 

denial in a Federal Register notice on 

March 6, 2008.2 CARB subsequently 

submitted a request that EPA reconsider 

that waiver denial on January 21, 2009. 

EPA took action on that request for 

reconsideration by reopening its public 

process.3 The agency held a public 

hearing to hear oral testimony and 

received thousands of written comments 

from a wide variety of interested 

persons. EPA’s decision on 

reconsideration—granting California’s 

waiver request—was issued on June 30, 

2009, and published in the Federal 

Register on July 8, 2009.4

B. CARB’s Motor Vehicle Greenhouse 

Gas Amendments 

Since EPA’s grant of a waiver of 

preemption for California’s greenhouse 

gas emission regulations, CARB has 

promulgated two sets of amendments, 

which are at issue here. Both sets of 

amendments are intended to ease 

manufacturer compliance burdens. 

CARB’s Board adopted the first set of 

amendments in September 2009. The 

September 2009 amendments, known as 

the ‘‘Section 177 State ‘Pooling’ 

Amendments,’’ include provisions 

intended to streamline manufacturers’ 

obligations by: (1) Providing 

manufacturers with the option of 

pooling vehicle sales across California 

and in states that have adopted 

California’s greenhouse gas standards 

starting with model years 2009 through 

2011,5 and (2) revising certification 

requirements to accept data from the 

Federal Corporate Average Fuel 

Economy (‘‘CAFE’’) program.6 CARB’s 

Board adopted the second set of 

amendments in February 2010. The 

February 2010 amendments are known 

as the ‘‘2012–2016 Model Year National 

Program Amendments’’; they provide 

that compliance with EPA’s greenhouse 

gas standards will be deemed 

compliance with the California 


srobinson on DSK4SPTVN1PROD with NOTICES
34694 Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 

7California Code of Regulations, Title 13 

1961.1(a)(1)(A)(ii). The National Program and EPA’s 

greenhouse gas standards referred to in California’s 

regulation can be found at 75 FR 25323 (May 7, 

2010). 

8 76 FR 5368 (January 31, 2011). 

9Comments of Joyce Dillard, EPA–HQ–OAR– 

2010–0653–0004 (March 17, 2011). 

10Comments of NADA, EPA–HQ–OAR–2010– 

0653–0005 (March 17, 2011). 

11Comments of the Association of Global 

Automakers (‘‘Global Automakers’’), EPA–HQ– 

OAR–2010–0653–0003 (March 17, 2011). 

12This comment generally appears to express 

concern for public health and welfare. Because this 

comment is not responsive to the issues before EPA 

or to EPA’s request for comments, EPA is not 

responding to this comment. 

13Comments of Global Automakers, EPA–HQ– 

OAR–2011–0653–003. 

14Because California was the only state to have 

adopted standards prior to 1966, it is the only state 

that is qualified to seek and receive a waiver. See 

S.Rep. No. 90–403 at 632 (1967). 15CAA section 209(b)(1)(A). 16CAA section 209(b)(1)(B). 17CAA section 209(b)(1)(C). 18See, e.g., 74 FR at 32767 (July 8, 2009); see also 

MEMA I, 627 F.2d at 1126. 

standards during the 2012 through 2016 

model years.7

C. EPA’s Review of California’s 

Greenhouse Gas Within-the-Scope 

Request 

By letter dated June 28, 2010, CARB 

submitted a request to EPA seeking 

confirmation that these two sets of 

amendments are within the scope of the 

waiver of preemption issued by EPA 

under section 209(b) of the Clean Air 

Act on June 30, 2009. EPA announced 

its receipt of California’s within-thescope confirmation request in a Federal 

Register notice on January 31, 2011.8 In 

that notice, EPA offered an opportunity 

for public hearing and comment on 

CARB’s request. 

Although CARB’s request regarding 

its ‘‘Section 177 State ‘Pooling’ 

Amendments’’ and its ‘‘2012–2016 

Model Year National Program 

Amendments’’ was submitted as a 

within-the-scope request, EPA invited 

comment on several issues. Within the 

context of a within-the-scope analysis, 

EPA invited comment on whether 

California’s standards: (1) Undermine 

California’s previous determination that 

its standards, in the aggregate, are at 

least as protective of public health and 

welfare as comparable Federal 

standards; (2) affect the consistency of 

California’s requirements with section 

202(a) of the Act; and (3) raise any other 

new issues affecting EPA’s previous 

waiver determinations. EPA also 

requested comment on issues relevant to 

a full waiver analysis, in the event that 

EPA determined that California’s 

standards should not be considered 

within the scope of CARB’s previous 

waivers, and should instead be 

subjected to a full waiver analysis. 

Specifically, EPA sought comment on: 

(a) Whether CARB’s determination that 

its standards, in the aggregate, are at 

least as protective of public health and 

welfare as applicable Federal standards 

is arbitrary and capricious; (b) whether 

California needs separate standards to 

meet compelling and extraordinary 

conditions; and (c) whether California’s 

standards and accompanying 

enforcement procedures are consistent 

with section 202(a) of the Act. 

No party requested an opportunity for 

a hearing to present oral testimony, and 

EPA received only three written 

comments. One of the comments is not 

responsive or relevant to the issues EPA 

sought comment on; a second comment 

requests that EPA vacate the underlying 

waiver; and the third comment supports 

CARB’s amendments, and encourages 

EPA to confirm that the amendments are 

within the scope of CARB’s greenhouse 

gas waiver. The written comments are 

from a private citizen,9 the National 

Automobile Dealers Association 

(‘‘NADA’’),10 and the Association of 

Global Automakers (‘‘Global 

Automakers’’), respectively.11 The 

private citizen’s comment is not 

responsive to the issues under EPA’s 

consideration as described in EPA’s 

January 31, 2011 Federal Register 

notice.12 NADA comments that 

California’s amendments effectively 

eliminate any need for California’s 

greenhouse gas standards, and therefore 

EPA should vacate the underlying 

waiver. NADA did not offer any 

comment specifically on whether 

California’s amendments meet the 

within-the-scope criteria, and it did not 

explicitly offer substantive comments 

on any of those criteria. NADA did 

comment on whether California’s 

regulations met the second criterion of 

a full waiver, concerning whether 

California needs State standards to meet 

compelling and extraordinary 

conditions. NADA also requests that 

EPA delay taking action on CARB’s 

within-the-scope request until the 

litigation related to the underlying 

waiver has been completed. Global 

Automakers comments that it 

‘‘unreservedly supports’’ California’s 

amendments, and encourages EPA to 

confirm that the amendments are within 

the scope of the previously issued 

greenhouse gas waiver.13 As noted 

below, Global Automakers offered 

specific comments on all of the issues 

described for public comment in EPA’s 

January 31, 2011 Federal Register 

notice. 

D. Clean Air Act Waivers of Preemption 

Section 209(a) of the Clean Air Act 

preempts states and local governments 

from setting emission standards for new 

motor vehicles and engines. It provides: 

No State or any political subdivision 

thereof shall adopt or attempt to enforce any 

standard relating to the control of emissions 

from new motor vehicles or new motor 

vehicle engines subject to this part. No state 

shall require certification, inspection or any 

other approval relating to the control of 

emissions from any new motor vehicle or 

new motor vehicle engine as condition 

precedent to the initial retail sale, titling (if 

any), or registration of such motor vehicle, 

motor vehicle engine, or equipment. 

Through operation of section 209(b) of 

the Act, California is able to seek and 

receive a waiver of section 209(a)’s 

preemption. Section 209(b)(1) requires a 

waiver to be granted for any State that 

had 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, 1966,14 if the State 

determines that its standards will be, in 

the aggregate, at least as protective of 

public health and welfare as applicable 

Federal standards (this is known as 

California’s ‘‘protectiveness 

determination’’). However, no waiver is 

to be granted if EPA finds that: (A) 

California’s above-noted ‘‘protectiveness 

determination’’ is arbitrary and 

capricious; 15 (B) California does not 

need such State standards to meet 

compelling and extraordinary 

conditions; 16 or (C) California’s 

standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act.17 Regarding consistency with 

section 202(a), EPA reviews California’s 

standards for technological feasibility 

and evaluates testing and enforcement 

procedures to determine whether they 

would be inconsistent with Federal test 

procedures (e.g., if manufacturers would 

be unable to meet both California and 

Federal test requirements using the 

same test vehicle).18

If California amends regulations that 

were previously granted a waiver of 

preemption, EPA can confirm that the 

amended regulations are within the 

scope of the previously granted waiver 

if three conditions are met. These 

conditions are discussed below. 

E. Burden of Proof 

In Motor and Equip. Mfrs Assoc. v. 

EPA, 627 F.2d 1095 (DC Cir. 1979) 

(‘‘MEMA I’’), the U.S. Court of Appeals 

stated that the Administrator’s role in a 

section 209 proceeding is to: 

consider all evidence that passes the 

threshold test of materiality and * * * 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 34695 

19 MEMA I, 627 F.2d at 1122. 

20 Id. 

21 Id. 

22 Id. 

23See, e.g., 40 FR 21102–103 (May 28, 1975). 

24 MEMA I, 627 F.2d at 1121. 

25 Id. at 1126. 

26 Id. at 1126. 

27CARB Resolution 09–53, EPA–HQ–OAR–2010– 

0653–0002.7 (September 24, 2009). 

28CARB Resolution 10–15, EPA–HQ–OAR–2010– 

0653–0002.17 (February 25, 2010). 

29See 74 FR 332744, 32749–32759. EPA also 

examined then existing CAFE standards 

promulgated by the NHTSA. EPA found that such 

standards are not ‘‘applicable federal standards,’’ 

and even if they were considered as such, 

opponents of the waiver had not demonstrated that 

CARB’s protectiveness determination was arbitrary 

and capricious. EPA also examined whether 

CARB’s protectiveness determination was arbitrary 

and capricious based on the real world in-use 

effects of the GHG standards, and found that 

opponents of the waiver had not met their burden 

of proof. 

30 74 FR 32752–32753 (July 8, 2009). 

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

The court in MEMA I considered the 

standards of proof under section 209 for 

the two findings related to granting a 

waiver for an ‘‘accompanying 

enforcement procedure’’ (as opposed to 

the standards themselves): (1) 

Protectiveness in the aggregate and (2) 

consistency with section 202(a) 

findings. 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

The court upheld the Administrator’s 

position that, to deny a waiver, there 

must be ‘‘clear and compelling 

evidence’’ to show that proposed 

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 possible 

discretion in setting regulations it finds 

protective of the public health and 

welfare.22

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 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

Opponents of the waiver bear the 

burden of showing that the criteria for 

a denial of California’s waiver request 

have been met. As found in MEMA I, 

this obligation rests firmly with 

opponents of the waiver in a section 209 

proceeding: 

[t]he language of the statute and it’s 

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.24

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.’ ’’ 25 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 26

II. Discussion 

A. Within-the-Scope Analysis 

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 waiver 

analysis. Even though EPA sought 

comment on whether California’s 

amendments should be subjected to a 

full waiver analysis, no party expressed 

the opinion that California’s 

amendments require such an analysis. 

Global Automakers, the only commenter 

to address this threshold issue of which 

criteria to apply, stated the amendments 

at issue qualify for a within-the-scope 

determination. Global Automakers 

points out that California’s greenhouse 

gas amendments do not increase the 

stringency of any emission standard, or 

add any new pollutant or other emission 

standard to California’s existing 

greenhouse gas regulations. Therefore, 

we have evaluated CARB’s request by 

application of our traditional withinthe-scope analysis. 

EPA can confirm that amended 

regulations are within the scope of a 

previously granted waiver of 

preemption if three conditions are met. 

First, the amended regulations must not 

undermine California’s determination 

that its standards, in the aggregate, are 

at least as protective of public health 

and welfare as applicable Federal 

standards. Second, the amended 

regulations must not undermine our 

previous determination with respect to 

consistency with section 202(a) of the 

Act. Third, the amended regulations 

must not raise any new issues affecting 

EPA’s prior waiver determinations. 

CARB, in its Resolution 09–53 

(September 25, 2009),27 and Resolution 

10–15 (February 25, 2010),28 expressly 

stated that its greenhouse gas 

amendments meet each of these criteria. 

1. California’s Protectiveness 

Determination 

When granting a waiver of 

preemption for California’s greenhouse 

gas emission standards, EPA found that 

opponents of the waiver had not met 

their burden to demonstrate that 

California’s protectiveness 

determination was arbitrary and 

capricious. The protectiveness 

determination at issue in EPA’s 

previous greenhouse gas waiver 

proceeding was primarily based upon a 

comparison of California’s greenhouse 

gas emission standards to then nonexistent Federal greenhouse gas 

emission standards.29 In the July 30, 

2009 decision, EPA noted that ‘‘[i]f 

federal greenhouse gas standards are 

promulgated in the future, and if such 

standards bring this determination into 

question, then EPA can revisit this 

decision at that time.’’ We also noted 

that ‘‘EPA would then determine 

whether these changes are within-thescope of its prior waiver or if a new, full 

waiver determination would need to be 

made, as would be required if California 

decided to increase the stringency of its 

greenhouse gas standards.’’ 30

California’s greenhouse gas 

amendments, as described above, do not 

increase the numerical stringency of its 

greenhouse gas emission standards or 

change the California fleet average 

greenhouse gas emission limits. In 

addition, although EPA has 


srobinson on DSK4SPTVN1PROD with NOTICES
34696 Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 

31California Air Resources Board, Staff Report: 

Initial Statement of Reasons for Rulemaking 

(January 7, 2010), at page 7, EPA–HQ–OAR–2010– 

0653–0002.6. 

32See, e.g., 75 FR 8056 (February 23, 2010) and 

70 FR 22034 (April 28, 2005). 

33CARB, Request that Amendments to 

California’s New Passenger Motor Vehicle 

Greenhouse Gas Regulations Be Found Within the 

Scope of the Existing Waiver of Clean Air Act 

Preemption, EPA–HQ–OAR–2010–0653–0002, 

(June 28, 2010), at page 4. 34Comments of Global Automakers, EPA–HQ– 

OAR–2010–0653–0003, page 5. 

subsequently promulgated its own 

emission limits for greenhouse gases, 

those limits do not begin until the 2012 

model year, in contrast to CARB’s 

standards, which began in the 2009 

model year. As such, if EPA were to 

undertake a comparison of California-toFederal greenhouse gas emission 

standards, that analysis would compare 

three years of existing California 

standards against three years of nonexistent Federal standards. Thus, EPA 

agrees with CARB that California’s 

greenhouse gas amendments do not 

undermine California’s previous 

protectiveness determination with 

regard to the 2009 through 2011 model 

years. 

In its June 28, 2010 Letter requesting 

a within-the scope determination, CARB 

points out that it made an additional 

finding that its standards are in the 

aggregate at least as protective of public 

health and welfare as comparable 

Federal greenhouse gas emission 

standards, and that California’s 

amendments do not undermine the 

emission reductions from the previously 

waived California standards. 

The comment from Global 

Automakers states that California’s 

amendments do not cause California’s 

greenhouse gas standards to be less 

protective than the Federal standards. 

Global Automakers asserts that the 

‘‘deem to comply’’ prong of California’s 

amendments render emission benefits to 

be equally protective as between the 

California and Federal programs. 

In its comments, NADA notes that 

CARB stated that the national program 

‘‘will achieve equal or better GHG 

emission reduction benefits from MY 

2012–16 light-duty vehicles compared 

to those sold in California and states 

that have adopted California’s Pavley 

standards as provided in Section 177 of 

the Clean Air Act.’’ NADA believes that 

CARB’s statement leads to the 

conclusion that ‘‘vacating the waiver 

* * * likewise will result in no adverse 

environmental effects * * *.’’ However, 

such a conclusion does not logically 

follow from the statement CARB made. 

CARB’s statement was in reference to 

the fact that the national program affects 

vehicles in all 50 states, whereas the 

pre-existing California program only 

affected vehicles in California and 

section 177 states; it was not a statement 

with regard to the emission reduction 

benefits of the California standards 

themselves in California and the section 

177 states. In reviewing the California 

standards themselves, CARB found that 

the national program greenhouse gas 

standards from 2012 to 2015 were 

slightly less stringent than comparable 

California standards, and were 

equivalent to California standards in 

2016. CARB also found that emission 

reductions in California and the section 

177 states might be reduced slightly if 

manufacturers meet California 

regulations by demonstrating 

compliance with Federal standards, 

rather than meeting the pre-existing 

California standards.31 NADA does not 

take issue with this finding. Thus, at the 

very least, compliance with California’s 

greenhouse gas standards under the 

revised regulations will result in the 

same, if not more, emission reductions 

than would occur in the absence of the 

California standards. NADA provides no 

evidence that CARB’s standards are less 

protective than the applicable Federal 

standards. As such, NADA fails to 

present any evidence or make any 

showing that the amendments 

undermine California’s previous 

determination that its standards, in the 

aggregate, are at least as protective of 

public health and welfare as applicable 

Federal standards. 

After evaluating the materials 

submitted by CARB, as well as the 

public comments from Global 

Automakers and NADA on this issue, 

EPA confirms that California’s 

greenhouse gas amendments do not 

undermine California’s previous 

determination that its standards, in the 

aggregate, are at least as protective of 

public health and welfare as applicable 

Federal standards. 

2. Consistency With Section 202(a) of 

the Clean Air Act 

EPA has stated in the past that 

California standards and accompanying 

test procedures would be inconsistent 

with section 202(a) of the Clean Air Act 

if: (1) There is inadequate lead time to 

permit the development of technology 

necessary to meet those requirements, 

giving appropriate consideration to cost 

of compliance within the lead time 

provided, or (2) the Federal and 

California test procedures impose 

inconsistent certification 

requirements.32 CARB states that the 

amendments do not undermine our 

previous determination with respect to 

consistency with section 202(a) because 

California’s standards have remained 

the same and the amendments were 

intended to provide flexibility and 

reduce the costs of compliance with the 

regulations.33 EPA received one public 

comment on this issue, from Global 

Automakers. Global Automakers 

believes that California’s amendments 

‘‘do not cause California’s requirements 

to be inconsistent with Section 202(a) of 

the Act.’’ 34 Global Automakers further 

states that harmonizing the California 

program with EPA’s Federal program 

renders California’s regulations to be 

‘‘more consistent’’ with the Clean Air 

Act. 

The first prong of EPA’s inquiry into 

consistency with section 202(a) of the 

Act depends upon technological 

feasibility. This requires EPA to 

evaluate whether adequate technology 

already exists; or if it does not, whether 

there is adequate time to develop and 

apply the technology before the 

standards go into effect. Here, CARB has 

not changed its overall California fleet 

average greenhouse gas emission 

standards. The amendments at issue 

have been adopted to provide additional 

means and flexibilities for 

manufacturers to comply with the 

standards. These amendments do not 

require the development or application 

of any additional technology beyond 

that already required by California’s 

original greenhouse gas emission 

standards. EPA received no comments 

indicating that CARB’s amendments 

present lead-time or technology issues 

with respect to consistency under 

section 202(a) and knows of no other 

evidence to that effect. Consequently, 

CARB’s amendments do not affect our 

prior determination regarding 

consistency with section 202(a), based 

on lead-time or technological feasibility 

issues. 

The second prong of EPA’s inquiry 

into consistency with section 202(a) of 

the Act depends on the compatibility of 

the Federal and California test 

procedures. CARB’s greenhouse gas 

amendments are designed to deem 

manufacturer compliance with EPA’s 

greenhouse gas emission standards as 

compliant with California’s 

requirements. CARB further points out 

that its amendments are intended to 

provide flexibility and reduce 

compliance costs. Therefore, CARB 

asserts that its amended regulations 

strengthen CARB’s previous analysis 

that its regulations are consistent with 

section 202(a) of the Clean Air Act. EPA 

agrees with this analysis, and EPA 

received no comments that dispute this 

analysis. Because CARB’s regulations 

provide additional flexibilities, which 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 34697 

35See, e.g., 75 FR 8056 (February 23, 2010), and 

70 FR 22034 (April 28, 2005). 

36CARB, Request that Amendments to 

California’s New Passenger Motor Vehicle 

Greenhouse Gas Regulations Be Found Within the 

Scope of the Existing Waiver of Clean Air Act 

Preemption, EPA–HQ–OAR–2010–0653–0002, 

(June 28, 2010), at page 5. 

37Comments of Global Automakers, EPA–HQ– 

OAR–2010–0653–0003, page 5. 

38 74 FR at 32762. 

39 74 FR at 32759. 

40 74 FR at 32762–32763. 

41See, e.g., Approval and Promulgation of State 

Implementation Plans; California—South Coast, 64 

FR 1770, 1771 (January 12, 1999). See also 69 FR 

23858, 23881–90 (April 30, 2004) (designating 15 

areas in California as nonattainment for the federal 

8-hour ozone national ambient air quality standard). 

42California Air Resources Board, EPA–HQ– 

OAR–2006–0173–0004.1, at page 16. 

reduce compliance costs and even make 

CARB compliance more flexible to the 

extent that Federal compliance is 

deemed to comply with California’s 

requirements, CARB has made their 

compliance program, including its test 

procedures, more compatible with the 

Federal compliance program. 

Consequently, nothing in the 

amendments undermines our prior 

determination concerning consistency 

of California’s test procedures with our 

own. 

For the reasons set forth above, EPA 

confirms that California’s greenhouse 

gas amendments do not undermine our 

prior determination concerning 

consistency with section 202(a) of the 

Clean Air Act. 

3. 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.35

CARB states that it is not aware of any 

new issues presented by its greenhouse 

gas amendments.36 Similarly, Global 

Manufacturers state that the 

amendments do not raise any new 

issues affecting the Administrator’s 

previous waiver: ‘‘[T]he amendments 

merely provide manufacturers the 

increased compliance flexibility of 

pooling their California and Section 177 

State fleets, and using compliance with 

the Federal program to show 

compliance with the California 

program.’’ 37

The comments from NADA do not 

specifically state that the amendments 

create new issues, but the comments 

appear to suggest NADA’s belief that 

they do. NADA states that the provision 

that allows compliance with Federal 

greenhouse gas regulations as an 

alternative compliance option for 

compliance with California’s 

greenhouse gas regulations renders 

California’s greenhouse gas standards 

redundant and because of this ‘‘CARB 

cannot claim that its rules any longer 

are needed to meet compelling and 

extraordinary circumstances.’’ This 

quote is a reference to the requirement 

in Clean Air Act section 209(b)(1)(B) 

that EPA shall not grant a waiver to 

California if it finds that California 

‘‘does not need such State standards to 

meet compelling and extraordinary 

conditions.’’ 

EPA does not believe that California’s 

amendment allowing compliance with 

federal greenhouse gas regulations as an 

option for compliance with California’s 

greenhouse gas regulations raises any 

new issues regarding our prior 

determination concerning CAA section 

209(b)(1)(B). 

In the underlying waiver decision, 

EPA found that ‘‘the better approach for 

analyzing the need for ‘such State 

standards’ to meet ‘compelling and 

extraordinary conditions’ is to review 

California’s need for its program, as a 

whole, for the class or category of 

vehicles being regulated, as opposed to 

its need for individual standards.’’ 38

EPA also reiterated its traditional 

understanding that ‘‘the term 

compelling and extraordinary 

conditions ‘do not refer to the levels of 

pollution directly.’ Instead, the term 

refers primarily to the factors that tend 

to produce higher levels of pollution— 

‘geographical and climatic conditions 

(like thermal inversions) that, when 

combined with large numbers and high 

concentrations of automobiles, create 

serious air pollution problems.’ ’’ 39 EPA 

further found that CARB has repeatedly 

demonstrated the need for its motor 

vehicle program to address compelling 

and extraordinary conditions in 

California.’’ 40 In its initial greenhouse 

gas Waiver Request letter, CARB stated: 

California—the South Coast and San 

Joaquin Air basins in particular—continues 

to experience some of the worst air quality 

in the nation. California’s ongoing need for 

dramatic emission reductions generally and 

from passenger vehicles specifically is 

abundantly clear from its recent adoption of 

state implementation plans for the South 

Coast and other California air basins.41 The 

unique geographical and climatic conditions, 

and the tremendous growth in the vehicle 

population and use which moved Congress to 

authorize California to establish separate 

vehicle standards in 1967, still exist today.42

NADA’s comments do not indicate 

that, as a result of the amendments, 

California no longer needs a separate 

motor vehicle emissions program to 

address compelling and extraordinary 

conditions in California, or provide any 

indication that EPA’s prior 

determination on this issue is 

undermined in any way. Therefore, its 

comments do not show that California’s 

amendments raise any new issues 

relevant to EPA’s initial waiver 

decision. 

Moreover, although NADA’s 

comments reference the words of the 

section 209(b)(1)(B), ‘‘need * * * to 

meet compelling and extraordinary 

circumstances’’ criterion, they do not 

appear to be directed towards the 

geographical or climatological 

conditions that are being referred to by 

the words ‘‘compelling and 

extraordinary circumstances.’’ Instead, 

NADA’s comments appear to be 

directed at the stringency of the 

greenhouse gas standards. The 

stringency of California’s standards is at 

issue in section 209(b)(1)(A), where 

Congress addressed the comparison of 

California standards to federal 

standards, but it is not an issue under 

section 209(b)(1)(B). As noted in EPA’s 

underlying waiver decision, section 

209(b)(1)(A) calls for a review of 

California standards ‘‘in the aggregate,’’ 

and EPA can only deny a waiver if it 

finds that California was arbitrary and 

capricious in its finding that ‘‘its 

standards will be, in the aggregate, at 

least as protective of public health and 

welfare as applicable Federal 

standards.’’ EPA notes that the language 

of section 209(b)(1)(A) clearly indicates 

Congress’s determination that EPA 

review the effect of stringency on the 

protectiveness of California’s standards 

‘‘in the aggregate,’’ and that EPA cannot 

deny a waiver on the grounds of 

protectiveness if California standards 

are at least equally protective as Federal 

standards. ‘‘Redundancy’’ is not the 

criterion; it is whether California’s 

standards are, in the aggregate, at least 

as protective as applicable Federal 

standards. Furthermore, NADA does not 

address California’s standards ‘‘in the 

aggregate’’ and, as noted above, does not 

provide any evidence to suggest, even 

with regard to California’s greenhouse 

gas standards, that California was 

arbitrary and capricious in its finding 

that its standards are at least as 

protective as comparable federal 

standards. The stringency issue raised 

by NADA is not relevant under section 

209(b)(1)(B), and it would be 

inconsistent with the intent of Congress 

to deny a waiver or a within-the-scope 

determination based on section 

209(b)(1)(B) for reasons Congress clearly 

addressed and clearly determined 

should not be the basis for a denial 

under section 209(b)(1)(A). NADA’s 

comments, therefore, do not raise any 


srobinson on DSK4SPTVN1PROD with NOTICES
34698 Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 

43 74 FR 32749–32750 (July 8, 2009). 

44California Air Resources Board, Resolution 09– 

53 (September 25, 2009) and Resolution 10–15 

(February 25, 2010). 

45CARB Request Letter at page 4. 

46CARB Executive Order G–10–051 (June 28, 

2010). 

new issues regarding our preexisting 

waiver for California greenhouse gas 

emission standards. 

For these reasons, EPA confirms that 

California’s greenhouse gas amendments 

raise no new issues with respect to 

previously granted waivers of 

preemption. 

4. Within-the-Scope Confirmation 

For all the reasons set forth above, 

EPA can confirm that California’s 

amendments to its motor vehicle 

greenhouse gas emissions program are 

within the scope of existing waivers of 

preemption. 

B. Full Waiver of Preemption Analysis 

In our January 31, 2011 Federal 

Register notice, EPA requested 

comment on the within-the-scope 

criteria, and on issues relevant to a full 

waiver analysis, in the event that EPA 

determined that California’s standards 

should not be considered within the 

scope of CARB’s previous waivers, and 

should instead be subjected to a full 

waiver analysis. Specifically, EPA 

sought comment on: (a) Whether 

CARB’s determination that its 

standards, in the aggregate, are at least 

as protective of public health and 

welfare as applicable Federal standards 

is arbitrary and capricious; (b) whether 

California needs separate standards to 

meet compelling and extraordinary 

conditions; and (c) whether California’s 

standards and accompanying 

enforcement procedures are consistent 

with section 202(a) of the Act. As 

discussed above, EPA confirms that 

California’s amendments meet the 

within-the-scope criteria. Additionally, 

because we received comment that 

appears to dispute this within-the-scope 

determination, we have applied our 

traditional full waiver analysis to 

California’s amendments in the 

alternative to that determination. We 

have determined that those in 

opposition to granting a waiver have not 

met their burden of showing that 

California’s regulations, as amended, do 

not meet the criteria for a new waiver 

of preemption. 

1. California’s Protectiveness 

Determination 

Section 209(b)(1)(A) of the Act 

requires EPA to deny a waiver if the 

Administrator finds that California was 

arbitrary and capricious in its 

determination that its State standards 

will be, in the aggregate, at least as 

protective of public health and welfare 

as applicable Federal standards. When 

evaluating California’s protectiveness 

determination, EPA compares the 

stringency of the California and Federal 

standards at issue in a given waiver 

request. That comparison is undertaken 

within the broader context of the 

previously waived California program, 

which relies upon protectiveness 

determinations that EPA previously 

found were not arbitrary and capricious. 

In our existing waiver for California’s 

greenhouse gas standards, we reviewed 

California’s protectiveness 

determination: 

California made a protectiveness 

determination with regard to its greenhouse 

gas regulations in Resolution 04–28, adopted 

by the California Air Resources Board on 

September 23, 2004. Included in that 

Resolution were several bases to support 

California’s protectiveness determination. 

Most generally, CARB made a broad finding 

that observed and projected changes in 

California’s climate are likely to have a 

significant adverse impact on public health 

and welfare in California, and that California 

is attempting to address those impacts by 

regulating in a field for which there are no 

comparable federal regulations. CARB also 

found that its greenhouse gas standards will 

increase the health and welfare benefits from 

its broader motor vehicle emissions program 

by directly reducing upstream emissions of 

criteria pollutants from decreased fuel 

consumption. Beyond that analysis of the 

new regulations’ impact on its broader 

program, CARB projected consumer response 

to the greenhouse gas regulations. With 

respect to consumer shifts due to a potential 

‘‘scrappage effect’’ (the impact of increased 

vehicle price on fleet age) and ‘‘rebound 

effect’’ (the impact of lower operating costs 

on vehicle miles travelled), CARB found 

minor impacts—but net reductions—on 

criteria pollutant emissions. Further, even 

assuming larger shifts in consumer demand 

attributable to the greenhouse gas emission 

standards, CARB found that the result 

remains a net reduction in both greenhouse 

gas emissions and criteria pollutant 

emissions. That is, CARB found that the 

addition of its greenhouse gas emission 

standards to its larger motor vehicle 

emissions program (LEV II), which generally 

aligns with the federal motor vehicle 

emissions program (Tier II), renders the 

whole program to be more protective of 

public health and welfare. CARB noted that 

EPA has already determined that California 

was not arbitrary and capricious in its 

determination that the pre-existing California 

standards for light-duty vehicles and trucks, 

known as LEV II, is at least as protective as 

comparable Federal standards, the Tier II 

standards. Implicit in California’s greenhouse 

gas protectiveness determination, then, is 

that the inclusion of greenhouse gas 

standards into California’s existing motor 

vehicle emissions program will not cause 

California’s program to be less protective 

than the federal program.43 (citations 

omitted) 

After reviewing California’s 

protectiveness determination and the 

evidence presented by opponents of the 

waiver, EPA was unable to find that 

California was arbitrary and capricious 

in its making its protectiveness 

determination. Against this backdrop, 

California made new protectiveness 

determinations when amending its 

motor vehicle greenhouse gas emissions 

program. 

In both of the CARB rulemakings for 

the amendments at issue here, the CARB 

Board found that the amendments did 

not undermine the Board’s previous 

determination that the regulation’s 

emission standards, other emission 

related requirements, and associated 

enforcement procedures are, in the 

aggregate, at least as protective of public 

health and welfare as applicable Federal 

standards.44 The CARB Board found 

that no basis existed for it to find that 

its previous protectiveness 

determination would be undermined by 

the amendments. With respect to the 

2009–2011 model years, the fleet 

average greenhouse gas emission limits 

remain unchanged from the previously 

waived standards; moreover, they 

remain the only greenhouse gas 

emission limits in existence for those 

model years. Because of those factors, 

California maintains that those 

standards are ‘‘undisputedly more 

protective.’’ 45 With respect to the 2012– 

2016 model years, in addition to making 

a new protectiveness determination, 

CARB’s Executive Officer made an 

additional protectiveness determination 

after reviewing EPA’s final rule 

promulgating Federal greenhouse gas 

emission standards.46

No commenter expressed an opinion 

or presented any evidence suggesting 

that CARB was arbitrary and capricious 

in making its three above-noted 

protectiveness findings. Therefore, 

based on the record before me, I cannot 

find that California was arbitrary and 

capricious in its findings that 

California’s motor vehicle greenhouse 

gas emission standards, as amended, 

are, in the aggregate, at least as 

protective of public health and welfare 

as applicable Federal standards. 

2. California’s Need for State Standards 

To Meet Compelling and Extraordinary 

Conditions 

Under section 209(b)(1)(B) of the Act, 

I cannot grant a waiver if I find that 

California ‘‘does not need such State 

standards to meet compelling and 

extraordinary conditions.’’ EPA has 

traditionally interpreted this provision 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 34699 

47CARB Request at page 4. 

48Comments of Global Automakers, EPA–HQ– 

OAR–2010–0653–0003, page 5. 

as considering whether California needs 

a separate motor vehicle emissions 

program to meet compelling and 

extraordinary conditions. In EPA’s 

greenhouse gas waiver decision issued 

on June 30, 2009, EPA followed its 

traditional interpretation and was 

unable to identify any change in 

circumstances or any evidence to 

suggest that the conditions that 

California identified as giving rise to 

serious air quality problems in 

California no longer exist. Therefore, 

EPA was unable to deny the waiver 

request under section 209(b)(1)(B). 

EPA also reviewed California’s 

greenhouse gas standards on the two 

alternative grounds relied upon in the 

March 2006 decision to deny a waiver. 

EPA reviewed California’s greenhouse 

gas standards separately from its 

program and found that it could not find 

that opponents of the waiver had 

demonstrated that California did not 

need its greenhouse gas emission 

standards to meet compelling and 

extraordinary conditions, or that 

opponents of the waiver had 

demonstrated that the impacts of 

climate change in California are not 

compelling and extraordinary. While 

recognizing that EPA was not adopting 

these alternative interpretations of 

section 209(b)(1)(B), EPA determined 

that it would be unable to deny the 

waiver request under section 

209(b)(1)(B) under these alternative 

grounds. 

As discussed above in section II.A.3, 

CARB has repeatedly demonstrated the 

need for its motor vehicle emissions 

program to address compelling and 

extraordinary conditions in California. 

Furthermore, no commenter has 

presented any argument or evidence to 

suggest that California no longer needs 

a separate motor vehicle emissions 

program to address compelling and 

extraordinary conditions in California, 

or that EPA’s prior determination on 

this issue is undermined in any way. 

Therefore, I determine that I cannot 

deny California a waiver for its motor 

vehicle greenhouse gas emission 

standards, as amended, under section 

209(b)(1)(B). Furthermore, no 

commenter has presented any argument 

or evidence to suggest that EPA’s prior 

determinations regarding the alternative 

interpretations discussed in the June 30, 

2009 waiver decision are undermined in 

any way. 

3. Consistency With Section 202(a) of 

the Clean Air Act 

Under section 209(b)(1)(C) of the Act, 

EPA must deny a California waiver 

request if the Agency finds that 

California standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act. The scope of EPA’s review under 

this criterion is narrow. EPA has stated 

on many occasions 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 Federal 

test procedures. Previous waivers of 

Federal preemption have stated that 

California’s standards are not consistent 

with section 202(a) if there is 

inadequate lead time to permit the 

development of technology necessary to 

meet those requirements, giving 

appropriate consideration to the cost of 

compliance within that time. 

California’s accompanying enforcement 

procedures would be inconsistent with 

section 202(a) if the Federal and 

California test procedures conflict, i.e., 

if manufacturers would be unable to 

meet both the California and Federal 

test requirements with the same test 

vehicle. 

In the June 30, 2009 waiver decision, 

EPA found that industry opponents had 

not met their burden of producing the 

evidence necessary for EPA to find that 

California’s greenhouse gas standards 

are not consistent with section 202(a) of 

the Act. EPA determined that CARB 

demonstrated a reasonable projection 

that compliance with California’s 

greenhouse gas standards was 

reasonable based on availability of 

technologies in the lead-time provided 

and consideration of cost of compliance. 

Therefore, EPA was unable to find that 

California’s greenhouse gas emission 

standards were not technologically 

feasible within the available lead-time, 

giving appropriate consideration to the 

cost of compliance. 

In its within-the-scope request, CARB 

states that its greenhouse gas 

amendments ‘‘do not undermine [its] 

previous discussions [regarding 

consistency with section 202(a)] both 

because the California standards have 

remained the same (i.e., covering the 

same vehicles for the same model-years 

at the same stringency) and because the 

amendments were intended to provide 

flexibility and reduce the costs of 

manufacturers’ compliance, thereby 

increasing the feasibility of meeting the 

standards.’’ 47 CARB also asserts that its 

amendments may reduce compliance 

costs. EPA received one public 

comment on this issue, from Global 

Automakers. Global Automakers 

believes that California’s amendments 

‘‘do not cause California’s requirements 

to be inconsistent with Section 202(a) of 

the Act.’’ 48 Global Automakers further 

states that harmonizing the California 

program with EPA’s Federal program 

renders California’s regulations to be 

‘‘more consistent’’ with the Clean Air 

Act. No commenter expressed any 

disagreement with these statements 

from CARB, and no commenter 

presented any evidence opposing 

CARB’s assertions regarding 

technological feasibility, lead-time, and 

cost of compliance. Therefore, EPA is 

unable to find that California’s 

greenhouse gas emission standards, as 

amended, are not technologically 

feasible within the available lead-time, 

giving appropriate consideration to the 

cost of compliance. 

4. Full Waiver of Preemption 

Determination 

After a review of the information 

submitted by CARB and other parties to 

this proceeding, I find that those 

opposing California’s request have not 

met the burden of demonstrating that a 

waiver of California’s amended 

greenhouse gas regulations should be 

denied based on any of the three 

statutory criteria of section 209(b)(1). 

For this reason, I find that, in the 

alternative, even if California’s revisions 

to its greenhouse gas standards were not 

within-the-scope of the earlier waiver, 

California’s amended motor vehicle 

greenhouse gas emission regulations 

would receive a full waiver. 

C. Other Issues 

NADA requests that EPA not take 

action on this within-the-scope request 

until after the Court of Appeals for the 

District of Columbia Circuit has acted 

on NADA’s petition for review of the 

underlying waiver related to California’s 

greenhouse gas emission standards. On 

April 29, 2011, the Court of Appeals 

acted on NADA’s petition for review, 

dismissing it for want of jurisdiction. 

The request by NADA is therefore moot. 

III. Decision 

The Administrator has delegated the 

authority to grant California a section 

209(b) waiver of preemption to the 

Assistant Administrator for Air and 

Radiation. This includes the authority to 

determine whether amendments to its 

regulations are within the scope of a 

prior wavier. CARB’s June 28, 2010 

letter seeks confirmation from EPA that 

CARB’s amendments to its new 

passenger motor vehicle greenhouse gas 

regulations are within the scope of its 


srobinson on DSK4SPTVN1PROD with NOTICES
34700 Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Notices 

existing waiver of preemption. After 

evaluating CARB’s amendments, 

CARB’s submissions, and the public 

comments, EPA confirms that 

California’s regulatory amendments 

meet the three criteria that EPA uses to 

determine whether amendments by 

California are within the scope of 

previous waivers. First, EPA agrees with 

CARB that the greenhouse gas 

amendments do not undermine 

California’s protectiveness 

determination from its previously 

waived greenhouse gas request. Second, 

EPA agrees with CARB that California’s 

greenhouse gas amendments do not 

undermine EPA’s prior determination 

regarding consistency with section 

202(a) of the Act. Third, EPA agrees 

with CARB that California’s greenhouse 

gas amendments do not present any new 

issues which would affect the 

previously issued waiver for California’s 

greenhouse gas regulations. Therefore, I 

confirm that CARB’s greenhouse gas 

amendments are within the scope of 

EPA’s waiver of preemption for 

California’s greenhouse gas regulations. 

While EPA has confirmed that the 

amendments to California’s greenhouse 

gas regulations are within the scope of 

EPA’s prior waiver, we have also, in the 

alternative analyzed California’s 

greenhouse gas regulations, as amended, 

under the criteria for a full waiver. 

Based on that analysis, we have 

determined that EPA could not deny a 

waiver of preemption for California’s 

regulations, as amended. California has 

made a determination that its 

regulations as amended are at least as 

protective as the Federal GHG 

standards, and those opposing the 

waiver have not met the burden of 

demonstrating that any of the three 

statutory criteria for a denial under 

section 209(b)(1) have been met. 

Therefore, having given consideration to 

all the material submitted for this 

record, and other relevant information, 

I find that I cannot make the 

determinations required for a denial of 

a waiver pursuant to section 209(b) of 

the Act. I find that, even if California’s 

revisions to its greenhouse gas standards 

were not within-the-scope of its earlier 

waiver, California’s amended motor 

vehicle greenhouse gas emission 

regulations would receive a full waiver. 

Consequently, even if the amendments 

were not within the scope of the earlier 

waiver, I am, in the alternative, granting 

California a full waiver of preemption 

for its amended motor vehicle 

greenhouse gas regulations. 

My decision will affect not only 

persons in California, but also 

manufacturers outside the State who 

must comply with California’s 

requirements in order to produce 

vehicles for sale in California. For this 

reason, I determine and find that this is 

a final action of national applicability 

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 August 15, 2011. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

section 307(b)(2) of the Act. 

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

Act, 5 U.S.C. 801, et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

rule for purposes of 5 U.S.C. 804(3). 

Dated: June 8, 2011. 

Gina McCarthy, 

Assistant Administrator for Air and 

Radiation. 

[FR Doc. 2011–14686 Filed 6–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2011–0431, FRL–9318–5] 

Protection of Stratospheric Ozone: 

Request for Methyl Bromide Critical 

Use Exemption Applications for 2014 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of solicitation of 

applications and information on 

alternatives. 

SUMMARY: EPA is soliciting applications 

for the critical use exemption from the 

phaseout of methyl bromide for 2014. 

Critical use exemptions last only one 

year. All entities interested in obtaining 

a critical use exemption for 2014 must 

provide EPA with technical and 

economic information to support a 

‘‘critical use’’ claim and must do so by 

the deadline specified in this notice 

even if they have applied for an 

exemption in previous years. Today’s 

notice also invites interested parties to 

provide EPA with new data on the 

technical and economic feasibility of 

methyl bromide alternatives. 

DATES: Applications for the 2014 critical 

use exemption must be postmarked on 

or before August 15, 2011. 

ADDRESSES: EPA encourages users to 

submit their applications electronically 

to Jeremy Arling, Stratospheric 

Protection Division, at 

arling.jeremy@epa.gov. If the 

application is submitted electronically, 

applicants must fax a signed copy of 

Worksheet 1 to 202–343–2338 by the 

application deadline. Applications for 

the methyl bromide critical use 

exemption can also be submitted by 

U.S. mail to: U.S. Environmental 

Protection Agency, Office of Air and 

Radiation, Stratospheric Protection 

Division, Attention Methyl Bromide 

Team, Mail Code 6205J, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460 or by courier delivery to: U.S. 

Environmental Protection Agency, 

Office of Air and Radiation, 

Stratospheric Protection Division, 

Attention Methyl Bromide Review 

Team, 1310 L St., NW., Room 1047E, 

Washington DC 20005. 

FOR FURTHER INFORMATION CONTACT: 

General Information: U.S. EPA 

Stratospheric Ozone Information 

Hotline, 1–800–296–1996; also http:// 

www.epa.gov/ozone/mbr. 

Technical Information: Bill Chism, 

U.S. Environmental Protection Agency, 

Office of Pesticide Programs (7503P), 

1200 Pennsylvania Ave., NW., 

Washington, DC, 20460, 703–308–8136. 

E-mail: chism.bill@epa.gov. 

Regulatory Information: Jeremy 

Arling, U.S. Environmental Protection 

Agency, Stratospheric Protection 

Division (6205J), 1200 Pennsylvania 

Ave., NW., Washington, DC, 20460, 

202–343–9055. E-mail: 

arling.jeremy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What do I need to know to respond to this 

request for applications? 

A. Who can respond to this request for 

information? 

B. Who can I contact to find out if a 

consortium is submitting an application 

form for my methyl bromide use? 

C. How do I obtain an application form for 

the methyl bromide critical use 

exemption? 

D. What must applicants address when 

applying for a critical use exemption? 


srobinson on DSK4SPTVN1PROD with NOTICES