California State Motor Vehicle Pollution Control Standards; Urban Buses; Request for Waiver of Preemption; Opportunity for Public Hearing and Comment

Christopher Grundler
Environmental Protection Agency
January 4, 2013

[Federal Register Volume 78, Number 3 (Friday, January 4, 2013)]
[Notices]
[Pages 719-721]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31717]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9766-3]


California State Motor Vehicle Pollution Control Standards; Urban 
Buses; Request for Waiver of Preemption; Opportunity for Public Hearing 
and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted amendments to its emission standards for urban bus 
engines in a series of rulemakings. The rulemakings at issue took place 
between 2000 and 2005. Principally, these rulemakings set requirements 
for California's public transit agencies that operate urban buses and 
other transit vehicles; additionally, the rulemakings set emission 
standards for new urban bus engines. CARB requests that EPA grant a 
waiver of preemption pursuant to section 209(b) of the Clean Air Act 
for the emission standards and related test procedures. This notice 
announces that EPA has tentatively scheduled a public hearing to 
consider California's urban bus regulations, and that EPA is now 
accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on January 30, 2013, at 10:00 a.m. ET. EPA will hold a hearing 
only if any party notifies EPA by January 17, 2013, expressing interest 
in presenting the agency with oral testimony. Parties wishing to 
present oral testimony at the public hearing should provide written 
notice to Kristien Knapp at the email address noted below. If EPA 
receives a request for a public hearing, that hearing will be held at 
1310 L Street NW., Washington, DC 20005. 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 1, 2013.
    By January 25, 2013, any person who plans to attend the hearing may 
call Kristien Knapp at (202) 343-9949, to learn if a hearing will be 
held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2012-0745, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.

[[Page 720]]

     Email: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2012-0745, 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 No. EPA-HQ-OAR-2012-0745. EPA's policy is that all 
comments we receive 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 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 No. EPA-HQ-OAR-2012-0745. 
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 (email) 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 dockets at http://www.regulations.gov. After opening the http://www.regulations.gov Web 
site, enter EPA-HQ-OAR-2012-0745, 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 review of California 
waiver requests. Included on that page are links to prior waiver and 
authorization Federal Register notices. The page can be accessed at 
http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Attorney-Advisor, 
Compliance Division, Office of Transportation and Air Quality, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., 
Washington, DC 20460. Telephone: (202) 343-9949. Fax: (202) 343-2804. 
Email: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. California's Urban Bus Regulations

    By letter dated November 16, 2009, CARB submitted to EPA its 
request pursuant to section 209(b) of the Clean Air Act (``CAA'' or 
``the Act''), regarding its urban bus regulations.\1\ California's 
urban bus regulations principally set requirements for California's 
public transit agencies that operate urban buses and other transit 
vehicles; additionally, the rulemakings set emission standards for new 
urban bus engines. CARB formally adopted these urban bus regulations 
during five separate rulemakings that took place between 2000 and 2005: 
a 2000 rulemaking, a 2002 rulemaking, a 2004 rulemaking, a February 
2005 rulemaking, and an October 2005 rulemaking. Collectively, the five 
rulemakings elevated the stringency of exhaust emission standards and 
test procedures for heavy-duty urban bus engines and vehicles. The 2000 
rulemaking accomplished several feats, including more stringent 
particulate matter (PM) emission standards for diesel-fueled urban bus 
engines through the 2006 model year; more stringent mandatory and 
optional nitrogen oxides (NOX) and non-methane hydrocarbon 
(NMHC) standards for diesel-fueled urban bus engines through the 2003 
model year; more stringent optional combined NMHC+ NOX and 
PM standards for alternatively-fueled urban bus engines through the 
2006 model year; more stringent primary emission standards for diesel-
fueled urban buses through the 2006 model year; tightening of exhaust 
emission standards for 2007 and later model year heavy-duty urban 
diesel engines; and adoption of urban bus test procedures and label 
specifications. The 2000 rulemaking was formally adopted by CARB on 
November 22, 2000 and May 29, 2001,\2\ and became operative under 
California law on January 23, 2001 and May 29, 2001, respectively.\3\ 
The 2002 rulemaking allowed for an optional NMHC+ NOX 
standard for 2004-2006 model year diesel-fueled urban bus engines when 
used in exempted transit fleets with commitments to demonstrate 
advanced NOX after-treatment technology, and established a 
certification procedure for hybrid electric buses. The 2002 rulemaking 
was formally adopted by CARB on September 2, 2003,\4\ and became 
operative under California law on

[[Page 721]]

November 15, 2003.\5\ The 2004 rulemaking added optional exhaust 
emission standards for diesel-fueled hybrid-electric urban bus engines 
for authorized transit agencies with NOX mitigation plans 
for the 2004-2006 model years. The 2004 rulemaking was formally adopted 
by CARB on June 24, 2004,\6\ and became operative under California law 
on January 31, 2004.\7\ The February 2005 rulemaking clarified the 
optional standards for hybrid-electric buses that were allowed in the 
2004 rulemaking. The February 2005 rulemaking was formally adopted by 
CARB on February 24, 2005,\8\ and became operative under California law 
on January 31, 2006.\9\ The October 2005 rulemaking amended the urban 
bus standards to align with California's existing exhaust emission 
standards for heavy-duty diesel engines. The October 2005 rulemaking 
was formally adopted by CARB on July 28, 2006,\10\ and became operative 
under California law on October 7, 2006.\11\ The revisions to emission 
standards and test procedures resulting from these five sets of 
amendments were codified at title 13, California Code of Regulations, 
section 1952.2 et seq., which was later renumbered to section 2023 et 
seq.\12\
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    \1\ California Air Resources Board (``CARB''), ``Request for 
Waiver Action Pursuant to Clean Air Act Section 209(b) for 
California's Urban Bus Emission Standards,'' November 16, 2009.
    \2\ CARB, ``Resolution 00-2,'' February 24, 2000; CARB, 
``Executive Order G-00-060,'' November 22, 2000; CARB, ``Executive 
Order G-01-010,'' May 29, 2001.
    \3\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective January 23, 2001; CARB, ``Secretary of State Face 
Sheet and Final Regulation Order,'' effective May 29, 2001.
    \4\ CARB, ``Resolution 02-30,'' October 24, 2002; CARB, 
``Executive Order G-03-023,'' September 2, 2003.
    \5\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective November 15, 2003.
    \6\ CARB, ``Resolution 04-19,'' June 24, 2004.
    \7\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective January 31, 2004.
    \8\ CARB, ``Resolution 05-15,'' February 24, 2005.
    \9\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective January 31, 2006.
    \10\ CARB, ``Resolution 05-47,'' September 15, 2005; CARB, 
``Resolution 05-53,'' October 20, 2005; CARB Resolution 05-61,'' 
October 27, 2005; CARB, ``Executive Order R-05-007,'' July 28, 2006.
    \11\ CARB, ``Secretary of State Face Sheet and Final Regulation 
Order,'' effective October 7, 2006.
    \12\ See supra notes 3, 5, 7, 9, and 11.
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    CARB seeks a waiver of preemption pursuant to section 209(b) of the 
Clean Air Act for the emission standards and related test procedures 
contained in its urban bus regulations, as amended through 2000 and 
2005.

II. 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. Section 
209(b)(1) requires a waiver to 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,\13\ 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''). However, no waiver is 
to be granted if EPA finds that: (A) California's above-noted 
``protectiveness determination'' is arbitrary and capricious; \14\ (B) 
California does not need such State standards to meet compelling and 
extraordinary conditions; \15\ or (C) California's standards and 
accompanying enforcement procedures are not consistent with section 
202(a) of the Act.\16\ 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).\17\
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    \13\ 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. See S.Rep. No. 90-403 at 632 (1967).
    \14\ CAA section 209(b)(1)(A).
    \15\ CAA section 209(b)(1)(B).
    \16\ CAA section 209(b)(1)(C).
    \17\ See, e.g., 74 FR at 32767 (July 8, 2009); see also MEMA I, 
627 F.2d at 1126.
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III. EPA's Request for Comments

    EPA is offering the opportunity for a public hearing, and 
requesting written comment on issues relevant to section 209(b) of the 
Clean Air Act. Specifically, we request comment on 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.

IV. 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 1, 2013. 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 No. 
EPA-HQ-OAR-2012-0745.
    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: December 26, 2012.
Christopher Grundler,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2012-31717 Filed 1-3-13; 8:45 am]
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