California State Motor Vehicles Pollution Control Standards; Opportunity for Public Hearing

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5275-3]

California State Motor Vehicles Pollution Control Standards;

Opportunity for Public Hearing

AGENCY: Environmental Protection Agency (EPA)

ACTION: Notice of opportunity for public hearing and public comment

period.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA

that it has adopted regulations regarding on-board diagnostic system

requirements for 1994 and later model year passenger cars, light-duty

trucks, and medium-duty vehicles (OBD II). On-board diagnostics consist

of a computer-based system incorporated into the vehicle electronics

for the purpose of detecting operational malfunctions within the

emission control system. When malfunctions are detected, a malfunction

light is illuminated on the instrument panel and a trouble code is

stored in the computer memory identifying the system in which the fault

has occurred. CARB initially requested that EPA find its OBD II

regulations within the scope of existing waivers of Federal preemption

pursuant to section 209 of the Clean Air Act (Act), 42 U.S.C. 7543(b),

as amended. Subsequently, CARB twice amended the subject regulations.

On June 14, 1995, California requested that, pursuant to section 209(b)

of the Clean Air Act, EPA waive Federal preemption for its onboard

diagnostics amendments including the December 1994 revisions. This

notice announces that EPA has tentatively scheduled a public hearing

for October 17, 1995, to hear comments from the general public

concerning CARB's request.

DATES: EPA has tentatively scheduled a public hearing for October 17,

1995, beginning at 9:30 a.m. Any person who wishes to testify on the

record at the hearing must notify EPA by September 29, 1995, that it

wishes to present oral testimony regarding CARB's request. Any party

may submit written comments regarding CARB's request by November 17,

1995. If EPA receives one or more requests to testify on the pending

request, a hearing will be held. Please note that if no one notifies

EPA that they wish to testify, no hearing will be held. Therefore, any

person who plans to attend the hearing should call Leila Holmes Cook of

EPA's Manufacturers Operation Division at (202) 233-9252, on or after

October 2, 1995, to determine if a request for a hearing has been

received by the Agency and thus whether a hearing will be held.

Regardless of whether or not a hearing is held, written comments

regarding CARB's request will be accepted through November 17, 1995.

ADDRESSES: If a request is received, a public hearing will be held at:

Sheraton Inn, 3200 Boardwalk, Ann Arbor, Michigan 48108. Parties

wishing to testify at the hearing should provide written notice to:

Charles N. Freed, Director, Manufacturers Operations Division (6405J),

U.S. Environmental Protection Agency, 401 M Street, S.W., Washington,

D.C. 20460. In addition, written comments, in duplicate, should be sent

to Mr. Freed at the same address. Copies of material relevant to the

waiver request (Docket No. A-90-28) will be available for public

inspection during the working hours of 8:30 AM to 12:00 PM and 1:30 PM

to 3:30 PM, Monday through Friday, at: U.S. Environmental Protection

Agency, Air Docket (LE-131), Room M1500, First Floor Waterside Mall,

401 M Street, S.W., Washington, D.C. 20460 [Telephone (202) 260-7548].

FOR FURTHER INFORMATION CONTACT: Leila Holmes Cook, Attorney/Advisor,

Manufacturers Operations Division (6405J), U.S. Environmental

Protection Agency, Washington, DC. 20460, Telephone: (202) 233-9252.

SUPPLEMENTARY INFORMATION:

I. Background and Discussion

Section 209(a) of the Act as amended, 42 U.S.C. 7543(a), provides

in part: ``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 * * * [or] require certification, inspection, or any other

approval relating to the control of emissions * * * as condition

precedent to the initial retail sale, titling (if any), or registration

of such motor vehicle, motor vehicle engine, or equipment.''

Section 209(b) of the Act requires the Administrator, after notice

and an opportunity for public hearing, to waive application of the

prohibitions of section 209(a) for California ``* * * if the State

determines that the State standards will be, in the aggregate, at least

as protective of public health and welfare as applicable Federal

standards. No such waiver shall be granted if the Administrator finds

that--(A) the determination of the State is arbitrary and capricious,

(B) [California] does not need such * * * standards to meet compelling

and extraordinary conditions, or (C) [its] standards and accompanying

enforcement procedures are not consistent with section 202(a) of [the

Act].''

As previous decisions granting waivers of federal preemption have

explained, State standards are inconsistent with section 202(a) if

there is inadequate lead time to permit the development of the

necessary technology given the cost of compliance within that time

period or if the Federal and state test procedures impose inconsistent

certification requirements.

With regard to enforcement procedures accompanying standards, I

must grant the requested waiver unless I find that these procedures may

cause the California standards, in the aggregate, to be less protective

of public health and welfare than the applicable Federal standards

promulgated pursuant to section 202(a), or unless the California and

Federal certification test procedures are inconsistent.

Once California has been granted waiver for a set of 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 having to receive a further

waiver of Federal preemption.

CARB initially requested that EPA find its OBD II regulations

within the scope of existing waivers of federal preemption pursuant to

section 209 of the Clean Air Act (Act), 42 U.S.C. 7543(b), as amended.

Subsequently, CARB twice amended the subject regulations. EPA finalized

its On-Board Diagnostics Rule on January 29, 1993 [58 FR 9468 (February

19, 1993)]. By letter dated June 14, 1995, California requested that,

pursuant to section 209(b) of the Clean Air Act, EPA waive Federal

preemption for its onboard diagnostics amendments including the

December 1994 revisions. These

[[Page 41067]]

amendments, which apply to 1994 and later model year passenger cars,

light-duty trucks, and medium-duty vehicles require the monitoring of

essentially all emission control systems, and emission related

components. In addition, it addresses deficiencies in the OBD I

requirements that have become apparent since their adoption, and

establishes new testing protocol and standardization procedures.

OBD II provides for new monitoring requirements covering: catalyst

system condition, engine misfire detection, evaporative control system

operation, supplementary air system function, the exhaust gas

recirculation (EGR) system flow rate, chloroflourocarbon loss (air

conditioning refrigerant), and monitoring of other components and

systems controlled by the on-board engine control computer. In general

the California OBD II regulations require that a deteriorated component

or system be detected as malfunctioning by the time its lack of

performance causes vehicle emissions to exceed 1.5 times any of the

standards to which the vehicle is certified or when a component is

completely non-functioning. Therefore, permissible emission increases

are a function of the standards to which the vehicle is certified.

A number of changes to requirements initially established under OBD

I were made to increase the effectiveness of the monitoring systems in

detecting emission-related malfunctions. These requirements include

tampering deterrence features, as well as, improvements to the

malfunction detection effectiveness of the fuel system, oxygen sensor,

EGR system, other emission-related electronic components.

Manufacturers are required to perform emission tests on a

durability demonstration vehicle equipped with deteriorated emission-

critical parts and show that the on-board diagnostic system will

identify when an emission standard is exceeded by 1.5 times the

applicable standard.

In order to facilitate vehicle repairs and assist Inspection and

Maintenance Programs in utilizing the OBD system, CARB has required

standardized vehicle communication systems that interface with a

relatively low-cost, hand-held, universal diagnostic tool. The tool

will be able to read specific diagnostic information such as fault

codes which lead service personnel to the likely area of any

malfunctions, and will provide continuously updated engine parameter

data that will further help to isolate fault codes and ensure proper

repairs.

In response to a Petition from Ford Motor Company, dated March 29,

1993, CARB modified its OBD II regulations to give the Executive

Officer, upon request from a manufacturer, the authority to waive one

or more of the OBD II requirements for vehicle models or engine

families introduced prior to April 1, 1994. In making this

determination the Executive Officer would consider, among other things,

the overall extent to which the OBD II requirements will be met, and

whether the manufacturer made good-faith efforts to comply with the

regulation. For 1995 model year vehicles for which production begins

after March 31, 1994, per vehicle penalties in increments of $25 or $50

per vehicle for the third and subsequently identified deficiency not to

exceed $500 per vehicle are possible.

On December 8, 1994, CARB approved amendments which addressed

manufacturer concerns with developing fully compliant monitoring

systems by the 1996 model year. Specifically, these amendments give

additional compliance flexibility for manufacturers having difficulty

creating enhanced diagnostic systems which monitor catalysts used in

low-emission vehicles (LEV) and adequate misfire detection. In

addition, the amendments also address monitoring requirements for

evaporative system leaks and for the monitoring of diesel and alternate

fuel vehicles.

In its request letter dated, June 14, 1995, California has stated

that regardless of whether the EPA views the subject regulation as

accompanying enforcement procedures or new standards, the requisite

findings to support a grant of a waiver of federal preemption have been

made. That is, as accompanying enforcement procedures, the regulations

do not endanger the protectiveness finding that the ARE has made for

previously granted waiver determinations and the regulations are

consistent with the intent of section 202(a) of the federal CAA. In the

alternative, if the OBD II regulations are viewed as new emission

standards, a waiver should be granted because the regulations (as

amended) are, in the aggregate, at least as stringent as the comparable

federal OBD regulations, California needs its own motor vehicle program

to meet compelling and extraordinary conditions in the state, and the

regulations are consistent with section 202(a) of the CAA. Section

202(a) requires that the procedures provide sufficient lead time to

permit the development and application of requisite technology, giving

appropriate consideration to the cost of compliance within such period.

In addition, the Agency has held that to avoid inconsistency with

section 202(a), California's procedures may not impose inconsistent

certification requirements such that manufacturers would be unable to

meet both the California and Federal requirements with the same test

vehicle.

Once California has been granted waiver of Federal preemption for a

set of standards and enforcement procedures for a class of vehicles, it

may adopt other conditions precedent to the initial retail sale,

titling or registration of the subject class of vehicles without having

to receive a further waiver of Federal preemption.

California's request will be considered according to the procedures

for a waiver decision, which includes providing the opportunity for a

public hearing. Any party wishing to present testimony at the hearing

should address the following issues:

(1) Whether California's OBD II regulations are appropriately

considered accompanying enforcement procedures or new emission

standards;

(2) If CARB's regulations are accompanying enforcement procedures,

address (A) whether these procedures may cause the California

standards, in the aggregate, to be less protective of public health and

welfare than the applicable Federal standards promulgated pursuant to

section 202(a), and (B) whether the California and Federal

certification test procedures are inconsistent.

(3) If CARB's regulations are standards, address (A) whether

California's determination that the amended standards 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.

II. Procedures for Public Participation

Any person desiring to make an oral statement on the record should

file ten (10) copies of their proposed testimony and other relevant

material with the Director of EPA's Manufacturers Operations Division

at the Director's address listed above not later than October 13, 1995.

In addition, that person should submit 25 copies, if feasible, of the

planned statement to the presiding officer at the time of the hearing.

Because a public hearing is designed to give interested parties an

opportunity to participate in this proceeding, there are no adverse

parties as such.

[[Page 41068]]

Statements by participants will not be subject to cross-examination by

other participants without special approval by the presiding officer.

The presiding officer is authorized to strike from the record

statements which he or she deems irrelevant or repetitious and to

impose reasonable limits on the duration of the statement of any

witness.

If a hearing is held, the Agency will make a verbatim record of the

proceedings. Interested persons may arrange with the reporter at the

hearing to obtain a copy of the transcript at their own expense.

Regardless of whether a public hearing is held, EPA will keep the

record open until November 17, 1995. The Administrator will then render

her decision on CARB's request based on the record of the public

hearing, if one is held, relevant written submissions, and other

information which is deemed pertinent. All information will be

available for public inspection at the EPA Air Docket.

Dated: August 3, 1995.

Ann E. Goode,

Acting Assistant Administrator for Air and Radiation.

[FR Doc. 95-19902 Filed 8-10-95; 8:45 am]

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