[Federal Register Volume 71, Number 249 (Thursday, December 28, 2006)]
[Notices]
[Pages 78190-78192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22314]


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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 www.regulations.gov. 
After opening the 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: 
[email protected].

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]
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