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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Topics: Gasoline, Ethanol
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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]
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