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, 61095-61098 [2011-25399]
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Federal Register / Vol. 76, No. 191 / Monday, October 3, 2011 / Notices
Filed Date: 09/21/2011.
Accession Number: 20110921–5066.
Comment Date: 5 p.m. Eastern Time
on Wednesday, October 12, 2011.
Docket Numbers: ER11–4584–000.
Applicants: Burgess Capital LLC.
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submits tariff filing per 35.1: Baseline
714 compliance to be effective 9/21/
2011.
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revisions per NYISO PJM settlement
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Revised Service Agreement No. 80 to be
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Accession Number: 20110921–5096.
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Applicants: EcoGrove Wind, LLC.
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submits tariff filing per 35.1: EcoGrove
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Accession Number: 20110921–5100.
Comment Date: 5 p.m. Eastern Time
on Wednesday, October 12, 2011.
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submits tariff filing per 35.13(a)(2)(iii:
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Applicants: Red Hills Wind Project,
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Take notice that the Commission
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Applicants: Kentucky Utilities
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Description: Kentucky Utilities
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Comment Date: 5 p.m. Eastern Time
on Wednesday, October 12, 2011.
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Applicants: Louisville Gas & Electric
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Description: Louisville Gas and
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Filed Date: 09/21/2011.
Accession Number: 20110921–5132.
Comment Date: 5 p.m. Eastern Time
on Wednesday, October 12, 2011.
The filings are accessible in the
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clicking on the links or querying the
docket number.
Any person desiring to intervene or
protest in any of the above proceedings
must file in accordance with Rules 211
and 214 of the Commission’s
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time on the specified comment date.
Protests may be considered, but
intervention is necessary to become a
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eFiling is encouraged. More detailed
information relating to filing
requirements, interventions, protests,
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can be found at: https://www.ferc.gov/
docs-filing/efiling/filing-req.pdf. For
other information, call (866) 208–3676
(toll free). For TTY, call (202) 502–8659.
Dated: September 22, 2011.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011–25334 Filed 9–30–11; 8:45 am]
BILLING CODE 6717–01–P
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
Environmental Protection
Agency (EPA).
ACTION: Notice of Decision.
AGENCY:
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
SUMMARY:
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Federal Register / Vol. 76, No. 191 / Monday, October 3, 2011 / Notices
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 https://
www.regulations.gov. After opening the
https://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 https://
www.epa.gov/otaq/climate/cawaiver.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 https://www.epa.gove/
otaq/cafr.htm.
FOR FURTHER INFORMATION CONTACT:
David Dickinson, Compliance and
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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
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.
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
1 58
FR 4166.
FR 7751.
3 71 FR 78190 (December 28, 2006).
2 66
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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
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
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.
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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Federal Register / Vol. 76, No. 191 / Monday, October 3, 2011 / Notices
III. Clean Air Act Waivers of
Preemption and Within the Scope
Decisions
Section 209(a) of the Act provides:
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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.
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
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
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).
10 See, e.g., 43 FR 32,182 (July 25, 1978).
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
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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
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.
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).
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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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
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Federal Register / Vol. 76, No. 191 / Monday, October 3, 2011 / Notices
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
§ 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]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9474–2]
Exposure Factors Handbook: 2011
Edition; Release of Final Report
Environmental Protection
Agency (EPA).
ACTION: Notice of Availability.
AGENCY:
On September 30, 2011, the
EPA publically released the final report
entitled Exposure Factors Handbook:
2011 Edition. The document was
prepared by the National Center for
Environmental Assessment (NCEA)
within EPA’s Office of Research and
Development. The Exposure Factors
Handbook: 2011 Edition provides
information on various physiological
and behavioral factors commonly used
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SUMMARY:
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in assessing exposure to environmental
chemicals. The handbook was first
published in 1989 and was updated in
1997. This edition incorporates
information made available from 1997
up until July 2011. It also reflects the
revisions made to the Child-Specific
Exposure Factors Handbook, which was
last updated and published in 2008.
Each chapter in the Exposure Factors
Handbook: 2011 Edition presents
recommended values for the exposure
factors covered in that particular
chapter’s exposure route as well as a
discussion of the underlying data used
in developing the recommendations.
The Exposure Factors Handbook:
2011 Edition (EPA/600/R–09/052F) is
available via the Internet at https://
www.epa.gov/ncea.
DATES: This report was posted
publically on September 30, 2011.
ADDRESSES: The report is available
primarily via the Internet on the
National Center for Environmental
Assessment’s home page under the
Recent Additions and Publications
menus at https://www.epa.gov/ncea.
Paper copies of the report are not
available. A limited number of CD–
ROMs will be available from the
Information Management Team, NCEA;
telephone: 703–347–8561; facsimile:
703–347–8691. If you are requesting a
CD–ROM, please provide your name,
your mailing address, and the document
title.
FOR FURTHER INFORMATION CONTACT: For
additional information, contact the
National Center for Environmental
Assessment; Jacqueline Moya;
telephone: 703–347–8539; or e-mail:
moya.jacqueline@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Information About the Project/
Document
The Exposure Factors Handbook:
2011 Edition provides a summary of the
available statistical data on various
factors used in assessing human
exposure. These factors include:
drinking water consumption; mouthing
behavior; soil ingestion rates; inhalation
rates; dermal factors, including skin area
and soil adherence factors; consumption
of fruits and vegetables, fish, meats,
dairy products, and homegrown foods;
human milk intake; human activity
factors; consumer product use; and
building characteristics. This handbook
is intended for use by exposure
assessors, within the Agency as well as
those outside, as a reference tool and
primary source of exposure factor
information. It may be used by
scientists, economists, and other
interested parties as a source of data
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and/or U.S. EPA recommendations on
numeric estimates for behavioral and
physiological characteristics needed to
estimate exposure to environmental
agents. Recommended values are
available for the general population and,
for most of the exposure factors, are also
available by age, sex, as well as for other
populations that may have
characteristics different from the general
population.
Dated: September 23, 2011.
Darrell A. Winner,
Acting Director, National Center for
Environmental Assessment.
[FR Doc. 2011–25412 Filed 9–30–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OAR–2010–1059; FRL–9471–8]
Guidance for 1-Hour SO2 NAAQS SIP
Submissions
Environmental Protection
Agency (EPA).
ACTION: Notice of availability and public
comment period.
AGENCY:
Notice is hereby given that
the EPA has posted its draft non-binding
guidance titled, ‘‘Guidance for 1–Hour
SO2 NAAQS SIP Submissions’’ on its
Web site. The EPA invites public
comments on this guidance document
during the comment period specified
below, and plans to issue an updated
version of the guidance after reviewing
timely submitted comments.
DATES: Comments should be submitted
on or before November 2, 2011. Please
refer to SUPPLEMENTARY INFORMATION for
additional information on the comment
period.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2010–1059, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: a-and-r-docket@epa.gov.
Attention Docket ID No. EPA–HQ–
OAR–2010–1059.
• Fax: 202–566–9744. Attention
Docket ID No. EPA–HQ–OAR–2010–
1059.
• Mail: Air Docket, Attention Docket
ID No. EPA–HQ–OAR–2010–1059,
Environmental Protection Agency, Mail
Code: 6102T, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460.
• Hand Delivery: EPA Docket Center,
1301 Constitution Avenue, NW., Room
3334, Washington, DC. Such deliveries
are only accepted during the Docket
SUMMARY:
E:\FR\FM\03OCN1.SGM
03OCN1
]]>Agencies
[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 https://www.regulations.gov. After opening the https://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 https://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
https://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]
BILLING CODE 6560-50-P
