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California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Regulations; Within-the-Scope Request; Opportunity for Public Hearing

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California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Regulations; Within-the-Scope Request; Opportunity for Public Hearing

Margo T. Oge
January 31, 2011

[Federal Register: January 31, 2011 (Volume 76, Number 20)]
[Notices]               
[Page 5368-5370]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja11-63]                         

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9260-4]

 
California State Motor Vehicle Pollution Control Standards; 
Greenhouse Gas Regulations; Within-the-Scope Request; Opportunity for 
Public Hearing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted amendments to its passenger vehicle greenhouse gas 
(GHG) emissions program. These amendments were formally adopted by 
CARB's Board in September 2009 and February 2010. By letter dated June 
28, 2010, CARB submitted a request seeking EPA's confirmation that 
these 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. This notice announces that EPA has tentatively scheduled a public 
hearing and is accepting written comment on California's request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on Thursday, February 17, 2011, beginning at 10 a.m. EPA will 
hold a hearing only if a party notifies EPA by February 7, 2011, 
expressing interest in presenting oral testimony. By February 11, 2011, 
any person who plans to attend the hearing should call Kristien Knapp 
at (202) 343-9949, to learn if a hearing will be held. Interested 
parties may also refer to http://www.epa.gov/otaq/cafr.htm for 
information regarding the tentatively scheduled hearing.
    Parties wishing to present oral testimony at the public hearing 
should provide written notice to Kristien Knapp at the e-mail address 
noted below. If EPA receives a request for a public hearing, that 
hearing will be held in Room 1332A of the Ariel Rios North Building, 
which is located at 1200 Pennsylvania Avenue, NW., Washington, DC 
20004.
    If EPA does not receive a request for a public hearing, then EPA 
will not hold a hearing, and instead consider CARB's request based on 
written submissions to the docket. Any party may submit written 
comments until March 17, 2011.

ADDRESSES: Submit your comments, identified by Docket ID EPA-HQ-OAR-
2010-0653, by one of the following methods:
     On-Line at http://www. regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID EPA-HQ-OAR-2010-
0653, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID EPA-HQ-OAR-2010-0653. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at http://www.regulations.gov, including any 
personal information provided, unless the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
http://www. regulations.gov or e-mail. The http://www.regulations.gov 
Web site is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an e-mail comment directly to EPA 
without going through http://www.regulations.gov, your e-mail address 
will automatically be captured and included as part of the comment that 
is placed in the public docket and made available on the Internet. If 
you submit an electronic comment, EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation Docket and 
Information Center, maintained in Docket ID EPA-HQ-OAR-2010-0653. 
Publicly available docket materials are available either electronically 
through http://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 
work 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 (e-mail) 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 docket 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. 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 also maintains a Web 
page that contains general information on its

[[Page 5369]]

review of California waiver requests. Included on that page are links 
to prior waiver Federal Register notices which are cited in today's 
notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm. 
Interested parties may also refer to the Web page for updated 
information on whether a hearing will held.

FOR FURTHER INFORMATION CONTACT: Kristien Knapp, Compliance and 
Innovative Strategies Division, U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: 
(202) 343-9949. Fax: (202) 343-2804. E-mail: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Chronology

    By letter dated December 21, 2005, CARB submitted to EPA a request 
seeking a waiver of preemption under section 209(b) of the Clean Air 
Act for California's passenger motor vehicle greenhouse gas (GHG) 
regulations. EPA originally denied CARB's request for a waiver of 
preemption in a Federal Register notice dated March 6, 2008.\1\ CARB 
subsequently submitted a request that EPA reconsider that waiver denial 
on January 21, 2009. 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.\2\
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    \1\ 73 FR 12,156 (March 6, 2008).
    \2\ 74 FR 32,744 (July 8, 2009).
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II. CARB's Passenger Vehicle GHG Amendments

    In September 2009, CARB adopted its ``Section 177 State `Pooling' 
Amendments'' that 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 GHG standards starting with model years 2009 
through 2011,\3\ and (2) revising its certification requirements to 
accept data from the Corporate Average Fuel Economy (CAFE) program.\4\ 
Then in February 2010, CARB adopted its ``2012-2016 Model Year National 
Program Amendments'' that allow manufacturers to use the National 
Program greenhouse gas standards as deemed to comply with the 
California standards during the respective 2012 through 2016 model 
years.\5\ By letter dated June 28, 2010, CARB submitted a request 
seeking EPA's 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.
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    \3\ California Code of Regulations, Title 13 Sec.  
1961.1(a)(1)(A)(i).
    \4\ California Code of Regulations, Title 13 Sec.  
1961(a)(1)(B).
    \5\ California Code of Regulations, Title 13 Sec.  
1961.1(a)(1)(A)(ii). The National Program referred to in 
California's regulation and promulgated by EPA and NHTSA can be 
found at 75 FR 25323 (May 7, 2010).
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III. 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. If certain 
criteria are met, section 209(b)(1) of the Act requires the 
Administrator, after notice and opportunity for public hearing, to 
waive application of the prohibitions of section 209(a). A waiver can 
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, 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''). Because 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.\6\ The Administrator must grant a waiver unless 
she finds that: (A) California's above-noted ``protectiveness 
determination'' is arbitrary and capricious; \7\ (B) California does 
not need such State standards to meet compelling and extraordinary 
conditions; \8\ or (C) California's standards and accompanying 
enforcement procedures are not consistent with section 202(a) of the 
Act.\9\ 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).\10\
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    \6\ See S.Rep. No. 90-403 at 632 (1967).
    \7\ Clean Air Act (CAA) section 209(b)(1)(A).
    \8\ CAA section 209(b)(1)(B).
    \9\ CAA section 209(b)(1)(C).
    \10\ See, e.g., 74 FR at 32767 (July 8, 2009); see also Motor 
and Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 
1095, 1126 (DC Cir. 1979).
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IV. Within-the-Scope Determinations

    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. First, the amended regulations must not undermine California's 
determination that its standards, in the aggregate, are as protective 
of public health and welfare as applicable Federal standards. Second, 
the amended regulations must not affect consistency with section 202(a) 
of the Act. Third, the amended regulations must not raise any ``new 
issues'' affecting EPA's prior waivers.

V. EPA's Request for Comments

    When EPA receives new waiver requests from CARB, EPA traditionally 
publishes a notice of opportunity for public hearing and comment, and 
then publishes a decision in the Federal Register following the 
conclusion of the comment period. In contrast, when EPA receives a 
request from CARB for a within-the-scope confirmation, EPA may publish 
a decision in the Federal Register and concurrently invite public 
comment if an interested party is opposed to EPA's decision.
    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 is 
inviting comment on several issues. Within the context of a within-the-
scope analysis, EPA invites 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 is also requesting comment on issues relevant to a full waiver 
analysis, in the event that EPA determines that California's standards 
should not be considered within-the-scope of CARB's

[[Page 5370]]

previous waivers, and instead require a full waiver analysis. 
Specifically, please 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.

VI. Procedures for Public Participation

    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties 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 March 17, 2011. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record from the public hearing, if any, all relevant 
written submissions, and other information that she deems pertinent. 
All information will be available for inspection at the EPA Air Docket 
EPA-HQ-OAR-2010-0653.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information'' (CBI). 
If a person making comments wants EPA to base its decision on a 
submission labeled as CBI, then a non-confidential version of the 
document that summarizes the key data or information should be 
submitted to the public docket. To ensure that proprietary information 
is not inadvertently placed in the public docket, submissions 
containing such information should be sent directly to the contact 
person listed above and not to the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed, and according to the procedures set forth in 40 CFR 
Part 2. If no claim of confidentiality accompanies the submission when 
EPA receives it, EPA will make it available to the public without 
further notice to the person making comments.

    Dated: January 25, 2011.
Margo T. Oge,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2011-2045 Filed 1-28-11; 8:45 am]
BILLING CODE 6560-50-P



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