Determinations and Waivers of Preemption Decisions:
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
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.
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
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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:
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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\
\1\ 58 FR 4166.
\2\ 66 FR 7751.
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.
\3\ 71 FR 78190 (December 28, 2006).
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\
\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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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\
\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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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.
\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).
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\
\10\ See, e.g., 43 FR 32,182 (July 25, 1978).
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\
\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).
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\
\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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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.
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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.
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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.
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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).
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New Issues
As explained in the Decision Document, EPA finds that the 2008 ZEV amendments raise no new issues for 2011 and earlier MYs.
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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
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Document which may be obtained as explained above.
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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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