[Federal Register Volume 75, Number 48 (Friday, March 12, 2010)]
[Pages 11878-11880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5485]




California State Motor Vehicle Pollution Control Standards; 
Amendments to the California Zero Emission Vehicle (ZEV) Regulation; 
Waiver Request; Opportunity for Public Hearing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.


SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted amendments to its regulations related to zero 
emission vehicles (ZEVs) in California. By letter dated September 17, 
2009, CARB requested that EPA confirm that its amendments as they 
affect model years 2008-2011 are within-the-scope of previous waivers 
of preemption issued by EPA. CARB also requests that EPA confirm that 
amendments as they affect the 2012 and subsequent model years are also 
within-the-scope of previous waivers of preemption issued by EPA; or, 
in the alternative, that EPA grant a new waiver of preemption for these 
future model years. This notice announces that EPA has tentatively 
scheduled a public hearing concerning California's request and that EPA 
is accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on April 13, 2010 at 10 a.m. EPA will hold a hearing only if 
any party notifies EPA by April 1, 2010, expressing its interest in 
presenting oral testimony. By April 6, 2010, any person who plans to 
attend the hearing may call David Dickinson at (202) 343-9256 to learn 
if a hearing will be held or may check the following Web site for an 
update: http://www.epa.gov/otaq/cafr.htm.
    Parties wishing to present oral testimony at the public hearing 
should also provide written notice to David Dickinson at the address 
noted below. If EPA receives a request for a public hearing, that 
hearing will be held at 1310 L St, 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 by May 17, 2010.

ADDRESSES: EPA will make available for public inspection materials 
submitted by CARB, written comments received from 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 No. EPA-HQ-OAR-2009-0780. The 
docket is located at The Air Docket, Room 3334, 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, enter EPA-HQ-OAR-2009-0780 in ``Search Documents'' 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.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and 
Innovative Strategies Division (6405J), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460. Telephone: 
(202) 343-9256, Fax: (202) 343-2804, e-mail address: 


(A) Procedural History

    Within CARB's 1990-1991 California Low Emission Vehicle (LEV I) 
rulemaking, CARB required that ten percent of the passenger cars and 
LDT1s \1\ marketed by all but small volume manufacturers were required 
to be ZEVs starting in the 2003 model year. EPA granted California an 
initial waiver of preemption for California's original 1990 ZEV 
requirements in January 1993 as part of the LEV I waiver.\2\ CARB 
amended its original ZEV requirements in 1996, and in January 2001, EPA

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found that those amendments, which modified manufacturer ZEV production 
mandates for model years 1998 through 2002, were within-the-scope of 
the originally-granted waiver.\3\ CARB again amended its ZEV 
requirements in 1999, 2001, and 2003, as they applied to 2007 and 
earlier model year passenger cars and LDT1s; in December 2006, EPA 
determined that those amendments fell within-the-scope of the 1993 
waiver.\4\ Within the December 2006 decision, EPA also granted CARB a 
new waiver for its 2007 through 2011 model year ZEV requirements. EPA 
expressly made no finding as to the 2012 and later model years.

    \1\ Under CARB's regulations, an LDT1 is a light-duty truck 
having a loaded weight of 0-3750 pounds.
    \2\ 58 FR 4166, January 13, 1993.
    \3\ 66 FR 7751, January 25, 2001.
    \4\ 71 FR 78190, December 28, 2006. In the alternative, EPA 
found that the amendments affecting these vehicles also met the 
requirements for a full waiver.

    CARB has again approved amendments to its ZEV requirements at a 
March 27, 2008 public hearing; the final amendments were adopted by 
Executive Order R-08-015 on December 17, 2008 (2008 ZEV amendments).\5\ 
Because of the nature of CARB's 2008 ZEV amendments, CARB now requests, 
as stated in its September 17, 2009 letter, that EPA confirm that the 
2008 ZEV amendments, as they affect the 2011 and earlier model years, 
be confirmed as within-the-scope of previous waivers. In addition, CARB 
also requests that the 2008 ZEV amendments, as they affect the 2012 and 
later model years, also be considered within-the-scope of previous 
waivers, or, alternatively, be granted a full waiver of preemption by 
EPA. CARB also states that EPA should grant a full waiver of preemption 
for the amendments as they affect the 2011 and earlier model years if 
EPA determines that the amendments are not within-the-scope of previous 
waivers for those model years.

    \5\ As explained in CARB's request letter and its attachments 
(including the amended regulation), the 2008 ZEV amendments modify 
or establish requirements for Phase I (2005-2008), Phase II (2009-
2011); Phase III (2012-2014); Phase IV (2015-2017) and Phase V (2018 
and later) model years.

(B) Background and Discussion

    Section 209(a) of the Clean Air Act, as amended (Act), 42 U.S.C. 
7543(a), provides:

    No state or any political subdivision thereof shall adopt or 
attempt to enforce any standard relating to the control of emissions 
from new motor vehicles or new motor vehicle engines subject to this 
part. No state shall require certification, inspection or any other 
approval relating to the control of emissions from any new motor 
vehicle or new motor vehicle engine as condition precedent to the 
initial retail sale, titling (if any), or registration of such motor 
vehicle, motor vehicle engine, or equipment.

    Section 209(b)(1) of the Act requires the Administrator, after 
notice and opportunity for public hearing, to waive application of the 
prohibitions of section 209(a) for any State that has adopted standards 
(other than crankcase emission standards) for the control of emissions 
from new motor vehicles or new motor vehicle engines prior to March 30, 
1966, if the State determines that the State standards will be, in the 
aggregate, at least as protective of public health and welfare as 
applicable Federal standards. California is the only State that is 
qualified to seek and receive a waiver under section 209(b). The 
Administrator must grant a waiver unless she finds that (A) the above-
described ``protectiveness'' determination of the State is arbitrary 
and capricious, (B) the State does not need the State standard 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. EPA has previously stated that ``consistency with 
section 202(a)'' requires that California's standards must be 
technologically feasible within the lead time provided, given due 
consideration of costs, and that California and applicable Federal test 
procedures be consistent.
    When EPA receives new waiver requests from CARB, EPA traditionally 
publishes a notice of opportunity for public hearing and comment and 
then, after the comment period has closed, publishes a notice of its 
decision in the Federal Register. In contrast, when EPA receives 
within-the-scope waiver requests from CARB, EPA usually publishes a 
notice of its decision in the Federal Register and concurrently invites 
public comment if an interested party is opposed to EPA's decision.
    Although CARB has submitted a within-the-scope waiver request for 
its ZEV amendments as they affect the 2011 and earlier model years and 
the 2012 and later model years, EPA invites comment on the following 
issues. First, should California's ZEV amendments, as they affect 
either the 2011 and earlier model years or the 2012 model years and 
later, be considered under the within-the-scope criteria or should be 
considered under the full waiver criteria? Second, to the extent that 
those amendments should be considered as a within-the-scope request, do 
such amendments meet the criteria for EPA to grant a within-the-scope 
confirmation? Specifically, do those amendments: (a) Undermine 
California's previous determination that its standards, in the 
aggregate, are at least as protective of pubic health and welfare as 
comparable Federal standards, (b) affect the consistency of 
California's requirements with section 202(a) of the Act, or (c) raise 
new issues affecting EPA's previous waiver determinations? Please also 
provide comments to address the full waiver analysis, in the event that 
EPA cannot confirm that CARB's ZEV amendments are within-the-scope of 
previous waivers. The full waiver analysis, which we are requesting 
comment on, include consideration of the following three criteria: 
Whether (a) CARB's determination that its standards, in the aggregate, 
are at least as protective of public health and welfare as applicable 
Federal standards is arbitrary and capricious, (b) California needs 
separate standards to meet compelling and extraordinary conditions, and 
(c) California's standards and accompanying enforcement procedures are 
consistent with section 202(a) of the Act.
    Procedures for Public Participation: In recognition that public 
hearings are designed to give interested parties an opportunity to 
participate in this proceeding, there are no adverse parties as such. 
Statements by participants will not be subject to cross-examination by 
other participants without special approval by the presiding officer. 
The presiding officer is authorized to strike from the record 
statements that he or she deems irrelevant or repetitious and to impose 
reasonable time limits on the duration of the statement of any 
    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 pubic hearing is held, EPA will keep the record 
open until May 17, 2010. Upon expiration of the comment period, the 
Administrator will render a decision of CARB's request based on the 
record of the public hearing, if any, 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-2009-
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest 
possible extent and label it as ``Confidential Business Information'' 
(CBI). If a person making comments wants EPA to base its decision in 
part on a submission labeled as CBI, then a non-confidential version of 
the document that summarizes the

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key data or information should be submitted for the public docket. To 
ensure that proprietary information is not inadvertently placed in the 
docket, submissions containing such information should be sent directly 
to the contact person listed above and not to the public docket. 
Information covered by a claim of confidentiality will be disclosed by 
EPA only to the extent allowed and by the procedures set forth in 40 
CFR part 2. If no claim of confidentiality accompanies the submission 
when EPA receives it, EPA will make it available to the public without 
further notice to the person making comments.

    Dated: March 5, 2010.
Margo Tsirigotis Oge,
Director, Office of Transportation and Air Quality, Office of Air and 
[FR Doc. 2010-5485 Filed 3-11-10; 8:45 am]