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California State Motor Vehicle Pollution Control Standards; Notice of Within-the-Scope Determination for Amendments To California's Zero-Emission Vehicle (ZEV) Standards and Notice of Waiver of Federal Preemption Decision for Other ZEV standards

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

  [Federal Register: December 28, 2006 (Volume 71, Number 249)]
[Notices]
[Page 78190-78192]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de06-69]

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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8263-2]

California State Motor Vehicle Pollution Control Standards;
Notice of Within-the-Scope Determination for Amendments To California's
Zero-Emission Vehicle (ZEV) Standards and Notice of Waiver of Federal
Preemption Decision for Other ZEV standards

AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice Regarding Confirmation of Within-the-Scope Finding and
Waiver of Federal Preemption for Amendments to California's Emission
Regulations for Zero Emission Vehicles.

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SUMMARY: By this decision, issued under section 209(b) of the Clean Air
Act, as amended, (hereafter ``Act''), 42 U.S.C. 7543(b), the
Environmental Protection Agency (EPA) today has determined that
provisions of the California Air Resources Board`s (CARB's) 1999-2003
amendments to the California Zero-Emission Vehicle (ZEV) regulations as
they affect 2006 and prior model years (MYs) are within-the-scope of
previous waivers of federal preemption granted to California for its
ZEV regulations. In the alternative, EPA is also granting a waiver of
federal preemption for these MYs. EPA is also granting California(s
request for a waiver of federal preemption to enforce provisions of the
ZEV regulations as they affect 2007 through 2011 MYs. As explained
below, EPA is also making a finding that although we believe it
appropriate to grant a full waiver of federal preemption for the 2007
MY, we also believe it appropriate to consider the 2007 MY regulations
within-the-scope of previous waivers of federal preemption as they
apply to certain vehicles that were already subject to the preexisting
ZEV regulations, with the exception that requirements pertaining to
heavier light-duty trucks (LDT2s) are subject to a full waiver of
federal preemption. EPA, by this decision, is not making any findings
or determinations with regard to the 2012 and later model years under
CARB's ZEV regulations.

DATES: Any objections to the findings in this notice regarding EPA's
confirmation that CARB's ZEV amendments, as they affect the 2007 MY,
are within-the-scope of previous waivers must be filed January 29,
2007. Otherwise, at the end of the 30-day period, these findings will
become final. Upon receipt of any timely objection, EPA will consider
scheduling a public hearing to reconsider these finding in a subsequent
Federal Register Notice. Under section 307(b)(1) of the 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 February 26, 2007. Under section 307(b)(2) of the
Act, judicial review of this final action may not be obtained in
subsequent enforcement proceedings.

ADDRESSES: Any objections to the within-the-scope findings in this
notice, applicable to the 2007 MY, should be filed with David Dickinson
at the

[[Page 78191]]

address noted below. The Agency's Decision Document, containing an
explanation of the Assistant Administrator's 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 and Information Center (Air Docket). Materials relevant to this
decision are contained in Docket No. EPA-HQ-OAR-2004-0437. The docket
is located at The Air Docket, room B-108, 1301 Constitution Avenue,
NW., Washington, DC 20460, and may be viewed between 8 a.m. and 5:30
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-2004-0437 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.

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: In this decision, EPA has determined that
the California Air Resources Board(s (CARB's) 1999-2003 amendments to
the California Zero-Emission Vehicle (ZEV) regulations as they affect
2006 and prior model years (MYs) are within-the-scope of previous
waivers of federal preemption granted to California for its ZEV
regulations pursuant to section 209(b) of the Act. In the alternative,
EPA is also granting a waiver of federal preemption for such MYs. EPA
is also granting California's request for a waiver of federal
preemption to enforce certain provisions of the ZEV regulations as they
affect 2007 through 2011 MY vehicles. Because the 2007 MY provisions
are similar to the provisions for previous model years (with the
exception of new requirements for LDT2s) EPA is also confirming that
such provisions are within-the-scope of previous waivers of federal
preemption.
    By letter dated September 23, 2004, CARB submitted a request
seeking confirmation that the amendments as they pertain to the 2003-
2006 model years are within-the-scope of previous waivers and seeking a
waiver of Federal preemption as the amendments pertain to the 2007 and
subsequent model years. The first set of amendments, the ``1999 ZEV
amendments,'' amended the existing requirement that at least 10 percent
of a manufacturer(s 2003 and subsequent MY passenger cars and lightest
light-duty trucks (the LDT1 category) delivered for sale in California
be ZEV vehicles with no emissions. The 1999 ZEV amendments added a new
option for meeting the 10 percent requirement, including up to 60
percent of the ZEV obligation of a large-volume manufacturer--and 100
percent of the obligations of an intermediate-volume manufacturer--that
could be met with allowances from partial ZEV allowance vehicles
(PZEVs). The ``2001 ZEV amendments'' maintained a core ZEV component
but reduced the numbers of vehicles required in the near-term and
broadened the scope of vehicle technologies allowed and provided a
variety of multipliers to earn credits for the early introduction of
ZEVs. The third set of amendments to the ZEV regulation, the ``2003 ZEV
amendments,'' delayed the start of the percentage of ZEV requirements
from MY 2003 to MY 2005, added the heavier light-duty trucks (LDT2s)
into a manufacturers fleet population count, established an alternative
compliance path for large-volume manufacturers that choose to focus on
the development of fuel cell ZEVs, eliminated all references to fuel
economy and vehicle efficiency from the 2001 ZEV amendments, and
adjusted the credit structure for the various vehicles types. Finally,
the fourth set of amendments include a requirement that 2006 and later
MY battery EVs other than neighborhood electric vehicles (NEVs) be
equipped with a conductive charger inlet port and an on-board charger,
and a separate minor element from CARB's LEV II regulations which
revised the standards for alternative fuel vehicles qualifying as
partial ZEV allowance vehicles and for which CARB seeks a within-the-
scope confirmation.
    On January 18, 2005, a Federal Register notice was published
announcing an opportunity for hearing and comment on CARB's request.\1\
EPA received a request for a public hearing and conducted a hearing on
February 17, 2005. The written comment period expired on March 29,
2005. After the close of the written comment period EPA also received a
series of letters for the 2007 MY since EPA had not acted upon CARB's
request at the time of the letters. Included in these letters,
regarding the 2007 MY, was a new request from CARB to EPA seeking EPA's
confirmation that the ZEV amendments as they affect the 2007 MY are
within-the-scope of previous waivers. CARB did not include the
requirements applicable to LDT2s that commence in the 2007 MY as part
of this within-the-scope request.
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    \1\ 70 FR 2860 (January 18, 2005).
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    Section 209(b) of the Act provides that, if certain criteria are
met, the Administrator shall waive Federal preemption for California to
enforce new motor vehicle emission standards and accompanying
enforcement procedures. The criteria include consideration of whether
California arbitrarily and capriciously determined that its standards
are, in the aggregate, at least as protective of public health and
welfare as the applicable federal standards; whether California needs
state standards to meet compelling and extraordinary conditions; and
whether California's amendments are consistent with section 202(a) of
the Act.
    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 at least 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.
    In its request letter 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. EPA received information during this
proceeding that questioned whether the CARB ZEV amendments may be less
protective for various reasons. EPA finds that the party opposing the
within-the-scope determination and the waiver have not meet their
burden of proof to demonstrate that the ZEV amendments undermine CARB's
previous protectiveness determination or that CARB was arbitrary and
capricious in its protectiveness determination. I cannot find that
CARB's ZEV regulations would cause the California motor vehicle
emission standards, in the

[[Page 78192]]

aggregate, to be less protective of public health and welfare than
applicable Federal standards.
    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
a compelling and extraordinary conditions.
    CARB stated in its request letters that the amendments do not raise
any concerns of inadequate leadtime or impose any inconsistent
certification requirements. EPA received information during this
proceeding that questioned: whether the advance-technology partial-
zero-emission vehicles (ATPZEVs) provisions of the ZEV requirements
were of a type not consistent with Sec.  202(a), and whether the
partial-zero-emission vehicle (PZEV) and fuel-cell vehicle (FCV)
provisions of the ZEV requirements were not consistent with Sec. 
202(a) due to considerations of technological feasibility, lead time,
and cost. EPA finds that the party opposing the within-the-scope
confirmation and the waiver of federal preemption has not met its
burden of proof that the ZEV amendments are inconsistent with Sec. 
202(a). I cannot find that CARB's ZEV regulations, as noted, would
cause the California motor vehicle emission standards to be
inconsistent with Sec.  202(a).
    As explained further in the Decision Document, EPA also received
comment that CARB's ZEV regulations raise ``new issues'' which require
EPA to consider CARB's within-the-scope request under the criteria for
a full waiver of federal preemption. EPA finds that the party opposing
the within-the-scope confirmation has not met its burden of proof that
the ZEV amendments raise new issues and therefore I cannot find that
the within-the-scope confirmation should be denied on this basis.
    Therefore I confirm that CARB's ZEV amendments as they affect the
2006 and earlier MYs, as noted above, are within-the-scope of existing
waivers of federal preemption. I also find that the ZEV amendments as
they affect the 2006 and earlier MYs meet the criteria for a full
waiver and thus I alternatively grant a waiver of federal preemption
for these MYs. I also grant a waiver of federal preemption of CARB's
ZEV amendments as they affect the 2007 through 2011 MYs. As explained
further in the Decision Document, EPA is not making any determinations
regarding a waiver of federal preemption applicable to 2012 and later MYs.
    CARB did not seek a within-the-scope confirmation of the 2007 MY as
part of its initial request to EPA. However, CARB later requested EPA
to consider the 2007 MY provisions (with the exception of the LDT2
requirement) as within-the-scope. While EPA did request comment
regarding CARB's within-the-scope request for the 2003-2006 MYs, EPA
has not done so for the 2007 MY. As explained in the Decision Document,
EPA does not believe that a further official request for comment is
needed at this time. Because the 2007 MY provisions are very similar to
the 2005-2006 MY provisions, I confirm that the 2007 MY requirements
(with the exception of the LDT2 requirement) are within-the-scope of
previous waivers of federal preemption. However, any party that wishes
to object to this determination may file such objection as indicated in
the DATES and ADDRESSES section above. Upon receipt of a timely
objection, EPA will consider scheduling a public hearing to reconsider
these findings in a subsequent Federal Register Notice.
    A full explanation of EPA's decision, including our review of
comments received in opposition to CARB's request, is contained in a
Decision Document which may be obtained as explained above.
    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 nonroad engines and vehicles for sale
in California. For this reason, I hereby determine and find that this
is a final action of national applicability.
    As with past waiver decisions, 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.
    Finally, the Administrator has delegated the authority to make
determinations regarding waivers under section 209(b) of the Act to the
Assistant Administrator for Air and Radiation.

    Dated: December 21, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. E6-22314 Filed 12-27-06; 8:45 am]
BILLING CODE 6560-50-P

 
 

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