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###### Environmental Protection Agency

          - [FRL-8708-1] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Notice regarding waiver of clean air act preemption. 

# SUMMARY:

By this decision, issued under section 209(b) of the Clean Air Act, as amended, (Act), 42 U.S.C. 7543(b), the Environmental Protection Agency (EPA) is granting California its request for a waiver Clean Air Act preemption for its 2010 and later model year heavy-duty vehicle and engine on-board diagnostic (OBD) requirements. 

# ADDRESSES:

The Agency's Decision Document, containing an explanation of the Deputy Assistant Administrator's decision, as well as all documents relied upon in making that decision, including those submitted to EPA by CARB, are available at EPA's Air and Radiation Docket and Information Center (Air Docket). Materials relevant to this decision are contained in Docket No. EPA-HQ-OAR-2006-0844. The docket is located at the Air Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460, and may be viewed between 8 a.m. and 5:30 p.m., Monday through Friday. The telephone is (202) 566-1742. A reasonable fee may be charged by EPA for copying docket material. 

                        Additionally, 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, select “Environmental Protection Agency” from the pull-down Agency list, then scroll to “Keyword or ID” and enter EPA-HQ-OAR-2006-0844 to view documents in the record of this California 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.                     

                        Electronic copies of this Notice and the accompanying Decision Document are available via the Internet on the Office of Transportation and Air Quality (OTAQ) Web site and looking at the path entitled                         *http://www.epa.gov/​OTAQ*. Users can find these documents by accessing the OTAQ web and looking at the path entitled                         **Federal Register**                         Notices. The electronic                         **Federal Register**                         version of the Notice is made available on the day of publication on the primary Web site                         *http://epa.gov/​docs/​fedrgstr/​EPA-AIR*. Please note that due to the differences between the software used to develop the documents and the software into the documents may be downloaded, changes in format, page length, etc., may occur.                     

# FOR FURTHER INFORMATION CONTACT:

                        David Dickinson, Compliance and Innovative Strategies Division, U.S. Environmental Protection Agency, Ariel Rios Building (6405J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Telephone: (202) 343-9256.                         *E-Mail Address*:                         *Dickinson.David@EPA.GOV*

# SUPPLEMENTARY INFORMATION:

                    I have decided to grant California a waiver of Clean Air Act preemption pursuant to section 209(b) of the Act for its 2010 and later model year heavy-duty vehicle and engine OBD requirements.[1] 

Section 209(b) of the Act provides that, if certain criteria are met, the Administrator shall waive preemption for California to enforce new motor vehicle emission standards and accompanying enforcement procedures. The criteria include consideration of whether California arbitrarily and capriciously determined that its standards are, in the aggregate, at least as protective of public health and welfare as the applicable Federal standards; whether California needs State standards to meet compelling and extraordinary conditions; and whether California's standards are consistent with section 202(a) of the Act. 

As further explained in the Decision Document supporting today's decision, although EPA did receive comment on California's request, the Agency finds there is an insufficient basis to deny California its waiver request based on the criteria set forth in section 209(b) of the Act. 

In its request letter to EPA, the California Air Resources Board (CARB) stated that the OBD requirements will not cause the California standards, in the aggregate, to be less protective of public health and welfare than the applicable Federal standards. EPA received no information during this proceeding that questioned whether CARB's OBD requirements are less protective than applicable Federal standards. I cannot find that CARB's OBD regulations would cause the California motor vehicle emission standards, in the aggregate, to be less protective of public health and welfare than applicable Federal standards. 

                    CARB has repeatedly demonstrated, with respect to traditional pollution concerns, (                    *i.e.*                     not including global climate change), the existence of compelling and extraordinary conditions in California.[2]                                          EPA has not received any adverse comments to suggest that California no longer suffers from serious and unique air pollution problems. Because EPA has not received adverse public comment, or any other relevant information, challenging the need for CARB's own motor vehicle pollution control program based on lack of compelling and extraordinary conditions for the purposes of this waiver request, I cannot deny the waiver based on a lack of compelling and extraordinary conditions.                 

                    CARB stated in its request letters that the amendments do not raise any concerns of inadequate leadtime or impose any inconsistent certification requirements. EPA received comment suggesting that EPA not necessarily deny the ultimate granting of CARB's waiver request, but rather that EPA defer making a decision in order to “maximize the opportunities for full alignment and harmonization between the EPA and ARB OBD programs for HDOH engines, and to reduce the prospects that other states will elect to opt into the ARB OBD program, which, from an emissions inventory perspective, will not be materially different from the EPA OBD program.” EPA notes that its notice of proposed rulemaking for heavy-duty vehicle and engine OBD was published on January 24, 2007 but a final rule has not been completed.[3]                                          Although EPA remains sensitive to the issues raised by the commenter, such comments do not include data or other basis by which to                           ( print page 52043)                        demonstrate the feasibility of CARB's OBD requirements. I cannot find that CARB's OBD regulations, as noted, would cause the California motor vehicle emission standards to be inconsistent with section 202(a).                 

A full explanation of EPA's decision, including our review of comments received, is contained in a Decision Document which may be obtained as explained above. 

My decision will affect not only persons in California but also the manufacturers outside the State who must comply with California's requirements in order to produce heavy-duty vehicles and engines for sale in California. For this reason, I hereby determine and find that this is a final action of national applicability. 

As with past 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. 

Finally, the Administrator has delegated the authority to make determinations regarding waivers under section 209(b) of the Act to the Assistant Administrator for Air and Radiation. 

Dated: August 13, 2008. 

Robert J. Meyers, 

Principal Deputy Assistant Administrator, Office of Air and Radiation.

# Footnotes

1.                             The CARB Board approved the OBD standards by Resolution 05-38 on July 21, 2005 and the California Office of Administrative Law approved the regulations on February 15, 2006.                    
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2.                             EPA recently denied California its request for a waiver for its new motor vehicle greenhouse gas standards.                         *See*73 FR 12156 (March 6, 2008).                    
        Back to Citation      

3.                             72 FR 3200 (January 24, 2007).                    
        Back to Citation      

[FR Doc. E8-20732 Filed 9-5-08; 8:45 am] 

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