BILL ANALYSIS                                                                                                                                                                                                    

                                                                  SB 535
                                                                  Page  1

          Date of Hearing:   June 29, 2009

                                   Mike Eng, Chair
                      SB 535 (Yee) - As Amended:  June 22, 2009

           SENATE VOTE  :  29-5
          SUBJECT  :  High occupancy vehicle lanes

           SUMMARY  :  Allows certain highly fuel-efficient vehicles to  
          travel in high-occupancy vehicle (HOV) lanes without the  
          required number of passengers, beginning in 2011.  Specifically,  
           this bill  :  

          1)Requires the Department of Motor Vehicles (DMV), upon request  
            and payment of the required fee, to issue distinctive decals,  
            labels, and other identifiers (i.e., stickers) to the owners  
            of vehicles that meet the state's enhanced advanced technology  
            partial zero-emission vehicle (enhanced AT PZEV) standard and  
            have a 65 miles per gallon or greater combined fuel economy  

          2)Allows vehicles displaying these stickers to travel in HOV  
            lanes, regardless of whether they meet the lanes' occupancy  

          3)Limits the number of such stickers to a cumulative total of  

          4)Allows DMV to additionally issue replacement stickers in the  
            instance where a vehicle with a sticker becomes nonrepairable  
            or a total salvage loss and the vehicle owner, within six  
            months, obtains another qualifying vehicle.  

          5)Makes the above provisions effective on January 1, 2011 and  
            sunsets them on January 1, 2015, or at any time that the  
            Secretary of State receives notice from the Department of  
            Transportation (Caltrans) that federal law does not authorize  
            HOV lane access for single-occupant vehicles with such  

          6)Extends the January 1, 2011 sunset for current HOV lane  
            privileges for vehicles that meet the state's super ultra-low  
            emission vehicle (SULEV) standard for exhaust emissions and  


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            the federal inherently low-emission vehicle (ILEV) evaporative  
            emission standard until such time as the Secretary of State  
            receives notice from Caltrans that federal law does not  
            authorize HOV lane access for single-occupant vehicles that  
            meet those standards.  

           EXISTING LAW  :  

          1)Allows Caltrans and local authorities to reserve highway lanes  
            within their respective jurisdictions for the exclusive use of  

          2)Prohibits the operation of single occupant vehicles in HOV  
            lanes, with the exception of motorcycles and stickered Clean  
            Air vehicles.  

          3)Allows DMV to issue 85,000 Clean Air stickers to hybrid  
            vehicles that meet specified emission criteria and have a fuel  
            economy rating of at least 45 miles per gallon.  

          4)Allows a vehicle that meets California's super ultra-low  
            emission vehicle standard for exhaust emissions and the  
            federal inherently low-emission vehicle evaporative emission  
            standard, or a vehicle that was produced during the 2004  
            model-year or earlier and meets California ultra-low emission  
            vehicle standard for exhaust emissions and the federal  
            inherently low-emission vehicle evaporative emission standard,  
            to operate in an HOV lane without regard to occupancy levels.   
            (As a practical matter, this means electric and natural  
            gas-powered vehicles.)  

          5)Requires DMV to issue Clean Air stickers to vehicles meeting  
            those standards.  

          6)Allows single-occupant Clean Air vehicles to operate in HOV  
            lanes until such time as Caltrans determines that federal law  
            does not authorize the state to allow such vehicles to use  
            those lanes.  

          7)Requires Caltrans to submit a notice of such a determination  
            to the Secretary of State, at which time HOV lane access  
            privileges for single occupant Clean Air vehicles would be  

          8)Requires Caltrans to remove individual HOV lanes, or HOV lane  


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            segments, during periods of peak congestion from these access  
            provisions if it finds that the lane or lane segment exceeds a  
            level of service C, and that the operation or projected  
            operation of Clean Air vehicles will significantly increase  
            HOV lane congestion.  

          9)Sunsets HOV lane access privileges for Clean Air vehicles when  
            the Secretary of State receives Caltrans' notification of a  
            federal ban, or on January 1, 2011, whichever occurs first.  

           FISCAL EFFECT  :  Negligible state costs per the Senate  
          Appropriations Committee.  

           COMMENTS  :  An HOV lane, commonly referred to as a "carpool" or  
          "diamond" lane, is part of a traffic management strategy  
          designed to reduce the number of single occupancy vehicles  
          during peak periods of traffic congestion.  These lanes are  
          intended to provide an incentive for commuters to form carpools  
          by offering reduced travel times.  The declared legislative  
          intent in establishing these lanes is to relieve traffic  
          congestion, conserve fuel, and reduce vehicular emissions.  Over  
          the years, advocates for many groups have suggested using HOV  
          lane access to reward certain behaviors or to ease the commute  
          for one class of motorists or another.  Historically, HOV lane  
          access has been proposed for doctors, seniors, veterans, the  
          disabled, and others.  These proposals were rejected as being  
          inconsistent with the original intent of establishing the lanes,  
          which is to reduce congestion.  

          Subsequently, AB 71 (Cunneen), Chapter 330, Statutes of 1999,  
          extended to certain "Clean Air" vehicles the privilege of using  
          HOV lanes even when required occupancy levels are not met.   
          Vehicles meeting AB 71's standard are generally limited to  
          battery-powered vehicles and those operating on compressed  
          natural gas, neither of which is especially prevalent in  
          California's vehicle fleet.  Proponents of AB 71 contended that  
          that this bill would induce the purchase and investment in clean  
          air vehicles, consistent with at least a part of the legislative  
          intent in authorizing HOV lanes.  In light of the relatively  
          small number of these vehicles, it was felt that this bill's  
          exemption would have negligible impact on the timesaving benefit  
          of HOV lanes.  

          Hybrid vehicles, which have become a popular means by which  
          vehicle manufacturers may meet consumer demand for fuel  


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          efficiency, did not meet the clean air standard established by  
          AB 71; consequently, their owners and advocates were dismayed  
          that they were not allowed into HOV lanes.  In 2004, therefore,  
          the Legislature enacted AB 2628 (Pavley), Chapter 725, Statutes  
          of 2004, extending the Clean Air provisions of AB 71 to hybrid  
          vehicles that achieve 45 miles per gallon fuel economy.  Since  
          allowing large numbers of hybrids into HOV lanes would reduce  
          the effectiveness of the lanes by compromising their ability to  
          offer a quicker commute than adjacent mixed-flow lanes, AB 2628  
          limited the aggregate number of stickers for hybrids to 75,000  
          and allowed Caltrans to suspend HOV lane privileges for hybrids  
          on any particular lane that reaches a specified level of  
          congestion.  AB 2600 (Lieu), Chapter 614, Statutes of 2006,  
          increased the limit on hybrid stickers to 85,000 and extended AB  
          2628's 2008 sunset date to 2011.  (DMV reached the 85,000  
          sticker cap for hybrids in February 2007 and is no longer  
          issuing new hybrid stickers.)  

          In June of 2007, the Federal Highway Administration (FHWA)  
          requested Caltrans to submit a plan to address "HOV lane  
          degradation" on California freeways.  Caltrans' analysis had  
          indicated that 54% of its HOV lanes had experienced such  
          degradation (i.e., the lane does not maintain 45 mph or greater  
          operating speed during peak commute hours for 90% or more of 180  
          consecutive workdays).  Recognizing that one component of HOV  
          lane congestion may be the presence of hybrid vehicles, one of  
          the options that Caltrans has considered is banning hybrids in  
          certain HOV lanes, as it is already authorized to do.   
          Furthermore, absent action by Congress, the current federal  
          authorization for non-HOVs operating in HOV lanes with Clean Air  
          stickers is due to expire on September 30 of this year.   
          (Recently-introduced legislation would extend the expiration  
          date to 2015.) 

          This bill would allow DMV to issue up to 65,000 Clean Air  
          stickers to "enhanced AT-PZEV" vehicles that achieve a combined  
          fuel economy rating of 65 MPG upon the January 1, 2011 sunset of  
          the existing authorization for 85,000 fuel-efficient hybrids to  
          operate in HOV lanes.  

          According to the author, there are at least five new vehicles  
          poised to enter the market that will meet this bill's standard:  
          the Chevy Volt, Fisker Karma, and Chrysler ReEV "range extended  
          electric vehicles" and the Ford Escape and Toyota Prius plug-in  
          hybrids.  (Extended range electric vehicles typically operate  


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          primarily on stored battery power for 40 to 50 miles and then  
          use a gasoline engine to recharge the battery.  Plug-in hybrids  
          also operate primarily on stored battery power within a similar  
          range, after which a gasoline engine provides power to the  
          drive-train.)  Given the potential for such vehicles to reduce  
          oil dependency, reduce air pollution and counter the emission of  
          greenhouse gasses, the author believes the granting of HOV lanes  
          privileges is appropriate.  "Due to this being first generation  
          of technology, vehicle costs will be high but it is hoped that  
          with federal tax incentives, potential fuel savings, and state  
          policies such as HOV lane access would provide a value  
          proposition to consumers to accept this first generation of  
          technology and the associated higher cost of the vehicle."  

          The Metropolitan Transportation Commission (MTC), noting the  
          growing trend for the establishment of high occupancy toll (HOT)  
          lanes -- which sell excess HOV lane capacity to single-occupant  
          vehicles upon payment of a toll -- opposes this bill.  MTC fears  
          that continued HOV lane access for stickered vehicles will  
          foster lane congestion, present enforcement challenges, and  
          reduce the capacity of the lanes to accommodate toll-paying  
          vehicles.  Similarly, the Los Angeles County Metropolitan  
          Transportation Authority (LAMTA) is concerned that the bill will  
          conflict with its pilot congestion pricing project on Routes 10  
          and 110.  The author is offering language (see below) that would  
          serve to address that concern.  

          Along those lines, as noted above, Caltrans is already  
          struggling to ameliorate HOV lane congestion.  The 2011 sunset  
          of HOV lane access privileges for conventional gas-electric  
          hybrids will remove 85,000 vehicles from those lanes, thereby  
          making Caltrans' job significantly easier.  Replacing those  
          85,000 conventional hybrids with as many as 65,000  
          second-generation hybrids will bring Caltrans almost completely  
          back to the current situation.  This operational challenge must  
          be balanced against the clear environmental and economic benefit  
          of transitioning the state's vehicle fleet to one that achieves,  
          by historical standards, a stunning improvement in fuel  

          Additionally, the state's experience with hybrids would seem to  
          indicate that gasoline prices already provide a powerful  
          stimulus to the sale of fuel-efficient vehicles, even when those  
          vehicles are significantly more expensive than their  
          conventional counterparts.  The Toyota Prius had a waiting list  


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          for purchasers before they were granted HOV lane privileges and  
          well in advance of the 2008 run-up in gasoline prices to over $4  
          a gallon.  At such time as the economy rebounds, it is likely  
          that gasoline prices will again reach that level, if not  
          substantially higher.  A 65 mile per gallon vehicle should sell  
          quite well in such an environment.  

          Finally, as also noted above, this bill may be moot in the event  
          that federal authorization for HOV lane access by hybrids is  
          allowed to expire as scheduled only three months from now.

           Author's amendments  :  To address the concerns of LAMTA outlined  
          above, the author proposes to amend the bill by adding the  
          following language to page 7, after line 24:  "(4)   
          Notwithstanding section 21655.9, vehicles described in paragraph  
          (5) of subdivision (a) shall not be exempt from tolls charged to  
          single occupancy vehicles in lanes designated for tolls under  
          the federally supported value-pricing and transit development  
          demonstration program operated pursuant to section 149.9 of the  
          Streets and Highways Code."

           Related legislation  :  AB 1500 (Lieu) would extend, until January  
          1, 2016, the sunset date for the statute that allows SULEV,  
          ULEV, and ILEV vehicles to operate in HOV lanes, whether or not  
          they have the required number of occupants.  That bill is  
          scheduled to be heard in Senate Transportation and Housing on  
          Tuesday, June 30, 2009.  


          General Motors (sponsor) 
          California Electric Transportation Coalition
          Tesla Motors 
          Metropolitan Transportation Commission 

          Analysis Prepared by  :   Howard Posner / TRANS. / (916) 319-2093