California State Motor Vehicle Pollution Control Standards; Advanced Clean Car Program; Request for Waiver of Preemption; Opportunity for Public Hearing and Public Comment

Gina McCarthy
August 31, 2012

[Federal Register Volume 77, Number 170 (Friday, August 31, 2012)]
[Notices]
[Pages 53199-53201]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21566]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-9724-4]


California State Motor Vehicle Pollution Control Standards; 
Advanced Clean Car Program; Request for Waiver of Preemption; 
Opportunity for Public Hearing and Public Comment

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 developed an Advanced Clean Car program (ACC) which 
combines the control of smog and soot causing pollutants and greenhouse 
gas (GHG) emissions into a single coordinated package of requirements 
for passenger cars, light-duty trucks and medium-duty passenger 
vehicles (and limited requirements related to heavy-duty vehicles). The 
ACC program includes revisions to California's Low Emission Vehicle 
(LEV) program as well as its Zero Emission Vehicle (ZEV) program. By 
letter dated June 27, 2012, CARB submitted a request that EPA grant a 
waiver of preemption under section 209(b) of the Clean Air Act (CAA), 
42 U.S.C. 7543(b) for the revisions to the LEV program. CARB also seeks 
confirmation that the amendments to the ZEV program are within-the-
scope of prior waiver decisions issued by EPA, or in the alternative 
requests a waiver for these revisions. This notice announces that EPA 
has scheduled a public hearing concerning California's request and that 
EPA is accepting written comment on the request.

DATES: EPA has scheduled a public hearing concerning CARB's request on 
September 19, 2012, beginning at 9:00 a.m. Any party planning to 
present oral testimony should notify EPA by September 14, 2012, 
expressing its interest. EPA will hold the public hearing at EPA's 
offices at 1310 L Street NW., Washington, DC 20460. Any party may 
submit written comments by October 19, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2012-0562, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Email: dickinson.david@epa.gov.
     Fax: (202) 343-2804.
     Mail: U.S. Environmental Protection Agency, EPA West (Air 
Docket), 1200 Pennsylvania Ave., NW., Room B108, Mail Code 6102T, 
Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2012-0562. 
Please include a total of two copies.
     Hand Delivery: EPA Docket Center, EPA/DC, EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC Such deliveries are 
only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. Instructions: Direct your comments to Docket ID No EPA-HQ-
OAR-2012-0562.
    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 
email.
    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 email comment directly to EPA without going through http://www.regulations.gov your email address will be automatically 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. Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy.
    EPA will make available for in person inspection, at the Air and 
Radiation Docket and Information Center, written comments received from 
interested parties, in addition to any testimony given at the public 
hearing. The official public docket is the collection of materials that 
is available for public viewing at the Air and Radiation Docket in the 
EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is 
open from 8:30 to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air and Radiation Docket is 
(202) 566-1743. The reference number for this docket is EPA-HQ-OAR-
2012-0562.
    EPA will make available an electronic copy of this Notice on the 
Office of Transportation and Air Quality's (OTAQ's) homepage (http://www.epa.gov/otaq/). Users can find this document by accessing the OTAQ 
homepage and looking at the path entitled ``Regulations.'' This service 
is free of charge, except any cost you already incur for Internet 
connectivity. Users can also get the official Federal Register version 
of the Notice on the day of publication on the primary Web site: 
(http://www.epa.gov/docs/fedrgstr/EPA-AIR/).
    Please note that due to differences between the software used to 
develop the documents and the software into

[[Page 53200]]

which the documents may be downloaded, changes in format, page length, 
etc., may occur.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance Division 
(6405J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. 
NW., Washington, DC 20460. Telephone: (202) 343-9256, Fax: (202) 343-
2804, email address: Dickinson.David@EPA.GOV.
    mailto:Dickinson.David@EPA.GOV.

SUPPLEMENTARY INFORMATION:

I. CARB's New Waiver Request and Prior Greenhouse Gas Emission Waivers

    CARB's June 27, 2012, letter to the Administrator notified EPA that 
CARB had adopted its ACC regulatory package in January 2012 and that 
the package contains amendments to its low emission vehicle (LEV) 
program to address both smog forming pollutants and greenhouse gases, 
and amendments to its zero emission vehicle program (ZEV).\1\ The 
amendments to the LEV program are referred to as LEV III. CARB requests 
that EPA grant a new waiver for its LEV III program. CARB also seeks 
confirmation that amendments to its ZEV program are within-the-scope of 
previous waivers issued by EPA. In the alternative, CARB requests that 
EPA grant a new waiver for its ZEV program.
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    \1\ The amendments and adoption of regulations can be found at 
title 13, California Code of Regulations, sections 1961.2 and 1961.3 
(adoption) and sections 1900, 1956.8, 1960.1, 1961, 1961.1, 1965, 
1968.2, 1968.5, 1976, 1978, 2037, 2038, 2062, 2112, 2139, 2140, 
2145, 2147, 2235, 2317, and Documents incorporated by reference 
(amendments).
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    CARB's waiver request discusses in detail both its ZEV program 
amendments and its LEV III amendments. CARB's waiver request includes 
an ``analysis setting forth California's basis for the waiver requests. 
The analysis sets forth a summary of the regulatory actions, a review 
of the criteria governing EPA's evaluation of a California waiver 
request, and the legal arguments that support and compel EPA to grant 
California's request.'' \2\ With respect to the LEV III greenhouse gas 
standards, CARB notes that it plans to adopt a rule which would allow 
manufacturers to demonstrate compliance with California's greenhouse 
gas regulations for the 2017 through 2025 model years by demonstrating 
compliance with EPA's greenhouse gas requirements for the 2017 through 
2025 model years (commonly referred to as the `deemed to comply' 
provision), subject to review of the contents of EPA's final rule for 
these model years.\3\
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    \2\ Letter from Mary D. Nichols, CARB, dated June 27, 2012 at p. 
2.
    \3\ ``CLEAN AIR ACT Sec.  209(b) WAIVER SUPPORT DOCUMENT 
SUBMITTED BY THE CALIFORNIA AIR RESOURCES BOARD, May 2012,'' at p. 9 
(accompanying June 27, 2012 letter).
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    CARB plans to commence its ``deemed to comply'' rulemaking shortly 
after EPA finalizes the light-duty vehicle greenhouse gas emission 
standards for model years 2017-2025, conditioned on its review of EPA's 
final GHG rule. As discussed below, EPA invites comment on all aspects 
of CARB's waiver request, and specifically invites comment on CARB's 
waiver request in light of CARB's plans concerning adoption of a deemed 
to comply provision into its LEV III GHG standards. This will allow EPA 
to consider any deemed to comply provision and comments on it when 
taking action on CARB's request for a waiver.
    EPA previously granted CARB a waiver of preemption for its 2009 and 
subsequent model year new motor vehicle greenhouse gas emission 
standards on July 8, 2009 (74 FR 32744). Subsequently, CARB adopted a 
series of amendments to those regulations, including a deemed to comply 
rule whereby compliance with EPA's GHG standards for model years 2012 
through 2016 would serve as compliance with California's GHG standards 
for those model years. On June 14, 2011 (76 FR 34693), EPA confirmed 
that these series of amendments were within-the-scope of the waiver 
granted on July 8, 2009. EPA has most recently issued waivers and 
within-the-scope decisions for CARB's ZEV program in 2006 (71 FR 78190, 
December 28, 2006) and 2011 (76 FR 61095, October 3, 2011). EPA's most 
recent waivers and within-the-scope decisions for CARB's LEV II program 
were issued in 2003 (68 FR 19811, April 22, 2003), 2005 (70 FR 22034, 
April 28, 2005), and 2010 (75 FR 44948, July 30, 2010).

II. Scope of Preemption and Criteria for a Waiver Under the Clean Air 
Act

    Section 209(a) of the Clean Air Act, as amended (``Act''), 42 
U.S.C. 7543(a), 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) of the Act requires the Administrator, after notice 
and 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 vehicle engines prior to March 30, 
1966, 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. California is the only state that is 
qualified to seek and receive a waiver under section 209(b). The 
Administrator must grant a waiver unless she finds that (A) the 
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. Previous 
decisions granting waivers of Federal preemption for motor vehicles 
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 giving appropriate consideration to the cost of 
compliance within that time period or if the Federal and State test 
procedures impose inconsistent certification procedures.\4\
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    \4\ To be consistent, the California certification procedures 
need not be identical to the Federal certification procedures. 
California procedures would be inconsistent, however, if 
manufacturers would be unable to meet the state and the Federal 
requirements with the same test vehicle in the course of the same 
test. See, e.g., 43 FR 32182 (July 25, 1978).
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III. Request for Comment

    When EPA receives new waiver requests from CARB, EPA traditionally 
publishes a notice of opportunity for public hearing and comment and 
then, after the comment period has closed, publishes a notice of its 
decision in the Federal Register. In contrast, when EPA receives 
within-the-scope waiver requests from CARB, EPA usually publishes a 
notice of its decision in the Federal Register and concurrently invites 
public comment if an interested party is opposed to EPA's decision. In 
this case, for the ZEV amendments CARB requests a within-the-scope 
determination, or in the alternative a waiver.
    Since CARB has submitted a within-the-scope request for its ZEV 
amendments as they affect both the 2012-2017 model years (MYs) and 2018 
and subsequent MYs, EPA invites

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comment on the following issues. First, should California's ZEV 
amendments, as they affect the 2012-2017 MYs and/or the 2018 and later 
MYs, be considered under the within-the-scope criteria or should they 
be considered under the full waiver criteria? Second, to the extent 
part or all of those ZEV amendments should be considered as a within-
the-scope request, do such amendments meet the criteria for EPA to 
confirm that they are within-the-scope of prior waivers? Please also 
provide comments to address the full waiver analysis (noted below for 
the remainder of the ACC program), in the event that EPA cannot confirm 
that some or all of CARB's ZEV amendments are within-the-scope of 
previous waivers.
    We are requesting comment on all aspects of the full waiver 
analysis with regard to the ACC program (the LEV III criteria pollutant 
and GHG regulations, and the ZEV amendments to the extent EPA does not 
consider them under the within-the-scope analysis noted above). This 
includes consideration of the following three criteria: whether (a) 
California's determination that its motor vehicle emission standards 
are, in the aggregate, at least as protective of public health and 
welfare as applicable Federal standards is arbitrary and capricious, 
(b) California needs such standards to meet compelling and 
extraordinary conditions, and (c) California's standards and 
accompanying enforcement procedures are consistent with section 202(a) 
of the Clean Air Act. As noted above, CARB plans to propose a deemed to 
comply rule for its GHG standards shortly after EPA finalizes its 
light-duty vehicle greenhouse gas emission standards, conditioned on 
its review of EPA's final GHG rule. As such, EPA specifically invites 
comment on CARB's waiver request in light of CARB's plans concerning 
adoption of a deemed to comply provision into its LEV III GHG 
standards. This will allow EPA to consider any deemed to comply 
provision and comments on it when taking action on CARB's request for a 
waiver.

IV. Procedures for Public Participation

    The Agency will make a verbatim record of the proceedings at the 
hearing. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. EPA 
will keep the record open until October 19, 2012. Upon expiration of 
the comment period, the Administrator will render a decision on CARB's 
request based on the record of the public hearing, relevant written 
submissions, and other information that she deems pertinent.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest 
possible extent and label it as ``Confidential Business Information'' 
(CBI). If a person making comments wants EPA to base its decision in 
part on a submission labeled CBI, then a non-confidential version of 
the document that summarizes the key data or information should be 
submitted for the public docket. To ensure that proprietary information 
is not inadvertently placed in the 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 
by 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: August 28, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-21566 Filed 8-30-12; 8:45 am]
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