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California State Motor Vehicle Pollution Control Standards; Within the Scope Determination and Waiver of Preemption Decision for Amendments to California's Zero-Emission Vehicle (ZEV) Standards

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California State Motor Vehicle Pollution Control Standards; Within the Scope Determination and Waiver of Preemption Decision for Amendments to California's Zero-Emission Vehicle (ZEV) Standards

Gina McCarthy
Federal Register
October 3, 2011


[Federal Register Volume 76, Number 191 (Monday, October 3, 2011)]
[Notices]
[Pages 61095-61098]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25399]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9474-5]


California State Motor Vehicle Pollution Control Standards; 
Within the Scope Determination and Waiver of Preemption Decision for 
Amendments to California's Zero-Emission Vehicle (ZEV) Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: By this decision the Environmental Protection Agency (EPA) has 
determined that provisions of the California Air Resources Board's 
(CARB's) 2008 amendments to the California Zero-Emission Vehicle (ZEV) 
regulations as they affect 2011 and prior model years (MYs) are within 
the scope of previous waivers of preemption granted to California for 
its ZEV regulations. In the alternative, EPA is

[[Page 61096]]

also granting a waiver of preemption for the 2008 ZEV amendments at 
they affect 2011 and prior MYs. EPA is also granting California's 
request for a waiver of preemption to enforce the 2008 ZEV amendments 
as they affect 2012 and later MYs.

DATES: Under section 307(b)(1) of the Clean Air 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 December 2, 2011. Under section 307(b)(2) of the Act, judicial 
review of this final action may not be obtained in subsequent 
enforcement proceedings.

ADDRESSES: The Agency's Decision Document, containing an explanation of 
this 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 (Air Docket). Materials relevant to this 
decision are contained in Docket No. EPA-HQ-OAR-2009-0780. The docket 
is located in the EPA Headquarters Library, EPA West Building, Room 
3334, located at 1301 Constitution Avenue, NW., Washington, DC 20460, 
and may be viewed between 8:30 a.m. and 4:30 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-
2009-0780 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.
    EPA's Office of Transportation and Air Quality (OTAQ) maintains a 
Web page that contains today's decision along with the Decision 
Document; this page is accessible at http://www.epa.gov/otaq/climate/ca-waiver.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 decisions and can be accessed at 
http://www.epa.gove/otaq/cafr.htm.

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. Chronology

    California's initial ZEV program was included as part of its first 
low-emission vehicle program known as LEV I. The ZEV component of this 
program had a ZEV sales requirement that phased-in starting with the 
1998 MY with a 10 percent sales requirement by the 2003 MY. EPA issued 
a waiver of preemption for these regulations on January 13, 1993.\1\ 
CARB subsequently amended its ZEV regulations in March, 1996, by 
eliminating the ZEV sales requirement for the 1998-2002 MYs and 
retaining the 10 percent sales requirement for the 2003 and later MYs. 
EPA issued a within-the-scope determination for these amendments on 
January 25, 2001.\2\
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    \1\ 58 FR 4166.
    \2\ 66 FR 7751.
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    On December 21, 2006, EPA waived preemption for CARB's 1999, 2001, 
and 2003 ZEV rulemaking amendments through the 2011 MY.\3\ EPA 
determined that certain provisions of the 1999-2003 amendments to the 
ZEV regulations as they affect 2006 and prior MYs were within-the-scope 
of previous waivers of preemption granted to California for its ZEV 
regulations pursuant to section 209(b) of the Clean Air Act (the Act). 
EPA also granted California's request for a waiver of preemption to 
enforce certain provisions of the ZEV regulations as they affected 2007 
through 2011 MY vehicles. EPA also stated that that although we 
believed it appropriate to grant a full waiver of preemption for the 
2007 MY, we also believed it appropriate to consider the 2007 MY 
regulations (with one exception noted) as within the scope of previous 
waivers of preemption, as they applied to certain vehicles that were 
already subject to the pre-existing ZEV regulations. In its December 
21, 2006 decision EPA did not making any findings or determinations 
with regard to CARB's ZEV regulations as they pertained to the 2012 and 
later MYs.
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    \3\ 71 FR 78190 (December 28, 2006).
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    On September 17, 2009 CARB submitted a request to EPA (Waiver 
Request) seeking confirmation that amendments to its ZEV regulations 
adopted in 2008 (2008 ZEV amendments) as they relate to the 2011 and 
earlier MYs are within the scope of EPA's prior ZEV waivers.\4\ In 
addition, CARB sought confirmation that its 2008 ZEV amendments as they 
relate to 2012 and later MYs are within the scope of EPA's prior ZEV 
waivers or, in the alternative, meet the criteria for a full waiver of 
preemption.\5\ EPA issued a Federal Register notice that announced a 
tentative hearing (a hearing only if one was requested by a commenter; 
in this case no hearing was requested or held) and opportunity for 
public comment and held the written comment period open until May 17, 
2010.\6\ EPA received a comment written jointly by the Alliance of 
Automobile Manufacturers and the Association of International 
Automobile Manufacturers (Manufacturers' Comments) and subsequent 
comment from CARB (CARB's Supplemental Comments).\7\
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    \4\ EPA-HQ-OAR-2009-0780-0001.
    \5\ CARB's 2008 ZEV Amendments were adopted by Executive Order 
R-08-015 on December 17, 2008, and were approved by the California 
Office of Administrative Law on March 18, 2009.
    \6\ 75 FR 11878 (March 12, 2010).
    \7\ EPA-HQ-OAR-2009-0780-0003 and EPA-HQ-OAR-2009-0780-0004, 
respectively.
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II. CARB's Zero-Emission Vehicle Amendments

    The 2008 ZEV amendments maintain the ZEV obligation or percentage 
ZEV requirements, but give manufacturers increased flexibility to 
comply with the ZEV requirements by giving credit to plug-in hybrid 
electric vehicles (PHEV), and establishing additional ZEV categories in 
recognition of new developments in fuel cell vehicles (FCV) and battery 
electric vehicles (BEV). As discussed below, a large-volume 
manufacturer is no longer expected to produce fuel-cell vehicles to 
meet part of its gold vehicle credit requirements for 2012 and later 
MYs. The 2008 ZEV amendments maintain the current options for large 
volume manufacturers to select either the Primary Compliance Path or 
the Alternative Compliance Path through MY 2011. For MYs 2012 through 
2017, the 2008 ZEV amendments establish a ``New Path,'' a single 
compliance strategy or set of requirements that all large volume 
manufacturers are required to follow. CARB's requirements for the 2018 
and later MYs were not amended by the 2008 ZEV amendments apart from 
allowing additional flexibility in the technologies that meet the ZEV 
requirements.\8\
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    \8\ CARB's 2008 ZEV amendments were adopted by Executive Order 
R-08-015 on December 17, 2008 and approved by the California Office 
of Administrative Law on March 18, 2009. The 2008 ZEV amendments 
place the ZEV requirements in two sections of title 13 of the 
California Code of Regulations--sections 1962 and 1962.1.

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[[Page 61097]]

III. Clean Air Act Waivers of Preemption and Within the Scope Decisions

    Section 209(a) of the Act 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.

    Section 209(b)(1) of the Act requires the Administrator, after an 
opportunity for public hearing, to waive application of the 
prohibitions of section 209(a) for any State that has adopted standards 
(other than crankcase emission standards) for the control of emissions 
from new motor vehicles or new motor engines prior to March 30, 
1966,\9\ if the State determines that standards will be, in the 
aggregate, at least as protective of public health and welfare as 
applicable Federal standards. The Administrator must grant a waiver 
unless she finds that: (A) The protectiveness determination of the 
State is arbitrary and capricious; (B) the State does not need the 
State standards to meet compelling and extraordinary conditions; or (C) 
the State standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act.
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    \9\ California is the only State which meets section 209(b)(1) 
eligibility criteria for obtaining waivers. See e.g., S. Rep. No. 
90-403, at 632 (1967).
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    Previous waiver decisions have stated that 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, or if the Federal and State test 
procedures impose inconsistent certification requirements.\10\
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    \10\ See, e.g., 43 FR 32,182 (July 25, 1978).
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    With regard to enforcement procedures accompanying standards, the 
Administrator must grant the waiver unless she finds 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 
Federal and California certification and test procedures are 
inconsistent.\11\
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    \11\ See Motor and Equip. Mfr. Assoc., Inc. v. EPA, 627 F.2d 
1095, 1111-14 (DC Cir. 1979), cert. denied, 446 U.S. 952 (1980); 43 
FR 25,729 (Jun. 14, 1978). To be consistent, the California 
procedures need not be identical to the Federal procedures. 
California procedures would be inconsistent, however, if 
manufacturers would be unable to meet both the state and the Federal 
requirements with the same vehicle. See, e.g., 43 FR 36679-680 (Aug. 
18, 1978).
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    Once California has received a waiver for its standards and 
enforcement procedures for a certain group or class of vehicles, it may 
adopt other conditions precedent to the initial retail sale, titling or 
registration of these vehicles without the necessity of receiving an 
additional waiver.
    If California acts to amend a previously waived standard or 
accompanying enforcement procedure, the amendment may be considered 
within the scope of a previously granted waiver provided that it does 
not undermine California's determination that its standards, in the 
aggregate, are as protective of public health and welfare as applicable 
Federal standards, does not affect its consistency with section 202(a) 
of the Act, and raises no new issues affecting EPA's previous waiver 
decisions.\12\
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    \12\ Decision Documents accompanying within the scope of waiver 
determination in 66 FR 7751 (January 25, 2001) at p. 5, and 51 FR 
12391 (April 10, 1986) at p. 2; see also, e.g., 46 FR 36742 (July 
15, 1981).
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IV. Analysis

    As explained in the Agency's Decision Document EPA examined CARB's 
2008 ZEV amendments, as they affect 2011 and earlier MYs, under the 
within the scope criteria. EPA in the alternative also applied the full 
waiver criteria to the 2011 and earlier MYs. Although CARB requested 
that EPA confirm that the 2008 ZEV amendments, as they affect 2012 and 
later MYs, are within the scope of previous waivers of preemption, EPA 
instead applied the full waiver criteria to the regulations affecting 
those MYs.

A. California's Protectiveness Determination

    In its Waiver Request to EPA, CARB stated that the amendments to 
its ZEV requirements will not cause the California standards, in the 
aggregate, to be less protective of public health and welfare than the 
applicable Federal standards nor undermine CARB's previous 
protectiveness determination. Because EPA has not received adverse 
public comment challenging CARB's protectiveness determination, I 
cannot find that CARB was arbitrary and capricious in its 
protectiveness determination and cannot deny the within the scope 
determination nor the waiver based on this criterion.

B. California's Need for State Standards To Meet Compelling and 
Extraordinary Conditions

    CARB also demonstrated continuing existence of compelling and 
extraordinary conditions, justifying the state's need for its own motor 
vehicle pollution control program. Because EPA has not received adverse 
public comment challenging the need for CARB's own motor vehicle 
pollution control program, I cannot deny the waiver based on a lack of 
compelling and extraordinary conditions.

C. Consistency With Section 202(a) of the Clean Air Act

    CARB stated in its Waiver Request that the 2008 ZEV amendments 
provide manufacturers with additional compliance options and do not 
raise any concerns with regard to the technological feasibility of its 
regulations when giving due consideration to lead time and costs. In 
addition, CARB notes that the 2008 ZEV amendments do not create an 
issue of test procedure inconsistency.
    The Manufacturers' suggested that the 2008 ZEV amendments were not 
consistent with section 202(a). However, as explained in EPA's Decision 
Document, EPA finds that the manufacturer groups opposing the within 
the scope confirmation and the waiver of preemption have not met their 
burden of proof that the 2008 ZEV amendments are inconsistent with 
section 202(a) of the Act. I cannot find that CARB's ZEV regulations, 
as noted, would cause the California motor vehicle emission standards 
to be inconsistent with section 202(a).

D. New Issues

    As explained in the Decision Document, EPA finds that the 2008 ZEV 
amendments raise no new issues for 2011 and earlier MYs.

E. Decision

    Therefore, I confirm that CARB's 2008 ZEV amendments as they affect 
the 2011 and earlier MYs, as noted above, are within the scope of 
existing waivers of preemption. I also find that the 2008 ZEV 
amendments as they affect the 2011 and earlier MYs meet the criteria 
for a full waiver and thus I alternatively grant a waiver of preemption 
for the regulations as they affect these MYs. I also grant a waiver of 
preemption of CARB's 2008 ZEV amendments as they affect 2012 and later 
MYs. A full explanation of EPA's decision, including our review of 
comments received in opposition to CARB's request, is contained in a 
Decision

[[Page 61098]]

Document which may be obtained as explained above.

V. Statutory and Executive Order Reviews

    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 new motor vehicles for sale in 
California. For this reason, I hereby determine and find that this is a 
final action of national applicability.
    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).
    Finally, the Administrator has delegated the authority to make 
determinations regarding waivers under Sec.  209(b) of the Act to the 
Assistant Administrator for Air and Radiation.

    Dated: September 26, 2011.
Gina McCarthy,
Assistant Administrator for Air and Radiation.
[FR Doc. 2011-25399 Filed 9-30-11; 8:45 am]
BILLING CODE 6560-50-P



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