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California State Motor Vehicle Pollution Control Standards; Advanced Clean Trucks; Zero Emission Airport Shuttle; Zero-Emission Power Train Certification; Request for Waiver of Preemption; Opportunity for Public Hearing and Public Comment Publication: Federal Register Signing Official: Sarah Dunham Agency: Environmental Protection Agency Date: 13 June 2022 
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[Federal Register Volume 87, Number 113 (Monday, June 13, 2022)]
[Notices]
[Pages 35768-35771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12717]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2022-0331; FRL 9883-01-OAR]
California State Motor Vehicle Pollution Control Standards;
Advanced Clean Trucks; Zero Emission Airport Shuttle; Zero-Emission
Power Train Certification; Request for Waiver of Preemption;
Opportunity for Public Hearing and Public Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of opportunity for public hearing and comment.
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SUMMARY: The California Air Resources Board (CARB) has notified the
Environmental Protection Agency (EPA) that it has finalized three
rulemaking actions--the Advanced Clean Trucks (ACT), Zero Emission
Airport Shuttle Bus (ZEAS), and Zero Emission Powertrain (ZEP)
Certification regulations. The regulations require manufacturers to
produce and sell increasing numbers of zero-emission medium and heavy-
duty vehicles, require certain fleets to acquire increasing numbers of
zero emitting airport shuttles, and establish new certification
requirements and optional emission standards for 2021 and subsequent
model year zero-emission medium- and heavy-duty vehicles and the zero-
emission powertrains installed on them. By letter dated December 20,
2021, CARB submitted a request that EPA grant waivers of preemption
under the Clean Air Act (CAA) This notice announces that EPA has
scheduled a public hearing concerning California's request and that EPA
is accepting written comment on the request.
DATES: Written comments must be received on or before August 2, 2022.
Public Hearing: EPA plans to hold a virtual public hearing on June
29, 2022. This one hearing will also cover the notices for California's
Omnibus Low NOX Regulation, Docket No. EPA-HQ-OAR-2022-0332,
and 2018 HD Warranty Amendments, Docket No. EPA-HQ-OAR-2022-0330.
Additional information regarding the virtual public hearing and this
action can be found at: https://usepa.zoomgov.com/webinar/register/WN_ByheDTzYSPuoGbv8J7yNwg.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2022-0331, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov
(our preferred method). Follow the on-line instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA West (Air
Docket), 1200 Pennsylvania Ave. NW, Room B108, Mail Code 6102T,
Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2022-0331.
Please include a total of two copies.
Hand Delivery: EPA Docket Center, EPA/DC, EPA West, Room
B102, 1301 Constitution Ave. NW, Washington, DC. Such deliveries are
only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information. Instructions: Direct your comments to Docket ID No EPA-HQ-
OAR-2022-0331.
Instructions: All submissions received must include the Docket ID
No. for this action. Comments received may be posted without change to
https://www.regulations.gov, including any personal information
provided. Do not submit information that you consider to be CBI or
otherwise protected through http://www.regulations.gov or email. For
the full EPA public comment policy, information about Confidential
Business Information (CBI) or multimedia submissions, and general
guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
The http://www.regulations.gov website is an ``anonymous access''
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an email comment directly to EPA without going through http://www.regulations.gov your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.
[[Page 35769]]
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses. Docket: All
documents in the docket are listed in the http://www.regulations.gov
index. Although listed in the index, some information is not publicly
available, e.g., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy.
EPA has established a docket for this action under EPA-HQ-OAR-2022-
0331. Publicly available docket materials are available either
electronically at https://www.regulations.gov or in hard copy at the
Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West,
Room B102, 1301 Constitution Ave. NW, Washington, DC. Due to public
health concerns related to COVID-19, the EPA Docket Center and Reading
Room are open to the public by appointment only, and walk-ins are not
allowed. Visitors to the Reading Room must complete docket material
requests in advance and then make an appointment to retrieve the
material. Please contact the EPA Reading Room staff at (202) 566-1744
or via email at docket-customerservice@epa.gov to arrange material
requests and appointments. Hand deliveries and couriers may be received
by scheduled appointment only. For further information on EPA Docket
Center services and status, please visit us online at https://
www.epa.gov/dockets.
EPA's Office of Transportation and Air Quality also maintains a web
page that contains general information on its review of California
waiver and authorization requests. Included on that page are links to
prior waiver and authorization Federal Register notices. The page can
be accessed at https://www.epa.gov/state-and-localtransportation/vehicle-emissionscalifornia-waivers-and-authorizations. Please note
that due to differences between the software used to develop the
documents and the software into which the documents may be downloaded,
changes in format, page length, etc., may occur.
Public Hearing. The virtual public hearing will be held on June 29,
2022. The hearing will begin at 9:00 a.m. Eastern Time (ET) and end
when all parties who wish to speak have had an opportunity to do so. As
noted above, this hearing will also cover the notices for California's
Omnibus Low NOX Regulation, Docket No. EPA-HQ-OAR-2022-0332,
and the 2018 HD Warranty Amendments, Docket No. EPA-HQ-OAR-2022-0330.
All hearing attendees (including those who do not intend to provide
testimony and merely listen) should register at: https://usepa.zoomgov.com/webinar/register/WN_ByheDTzYSPuoGbv8J7yNwg by June
21, 2022. Please refer to Instructions in the ADDRESSES section and
Procedures for Public Participation in the SUPPLEMENTARY INFORMATION
section for additional information on the public hearing and public
comment process.
FOR FURTHER INFORMATION CONTACT: David Dickinson, Transportation and
Climate Division (6405J), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460, Email:
Dickinson.David@epa.gov or Kayla Steinberg, Office of Transportation
and Air Quality, U.S. Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460, Email:
Steinberg.Kayla@epa.gov.
SUPPLEMENTARY INFORMATION:
I. CARB's New Waiver Requests
CARB's December 20, 2021, letter to the Administrator notified EPA
that CARB had finalized Advanced Clean Trucks (ACT), Zero Emission
Airport Shuttle Bus (ZEAS), and Zero Emission Powertrain (ZEP)
Certification regulations. The ACT regulation, adopted by the Board on
January 26, 2021, requires that manufacturers produce and sell
increasing quantities of medium- and heavy-duty zero-emission vehicles
(ZEVs) and near zero emission vehicles (NZEVs) in California. These
quantities are based on increasingly higher percentages of
manufacturers' annual sales of on-road heavy-duty vehicles, beginning
in the 2024 model year.\1\ The ZEAS regulation, adopted by the Board on
June 27, 2019, establishes steadily increasing zero-emission airport
shuttle fleet composition requirements for airport shuttle fleet owners
who service the thirteen largest California airports.\2\ The ZEP
Certification regulation, adopted by the Board on June 27, 2019,
establishes certification requirements and optional emission standards
for 2021 and subsequent model year medium- and heavy-duty ZEVs and the
zero-emission powertrains installed in such vehicles.\3\ CARB requests
that EPA grant a new waiver for each of these regulations. CARB's
request and waiver analysis includes ``a description of California's
rulemaking actions, a review of the criteria governing EPA's evaluation
of California's request for waiver action, [CARB's] analysis and
rationale supporting [its] request, and supporting documents.'' \4\
CARB's waiver analysis, set forth in its Waiver Request Support
Document, addresses how each of its three regulations contained in the
waiver request meet each of the three waiver criteria in section
209(b)(1) of the CAA.\5\ For example, CARB explains how its regulations
will not cause California motor vehicle emission standards, in the
aggregate, to be less protective of public health and welfare than
applicable federal standards and that no basis exists for the
Administrator of EPA to find that CARB's determination is arbitrary and
capricious under section 209(b)(1)(A) of the CAA.\6\ CARB also explains
how it continues to demonstrate California's need for a separate motor
vehicle emission program, including the three regulations contained in
its waiver request, under section 209(b)(1)(B) of the CAA.\7\ Finally,
CARB explains how the three regulations in its waiver request meet the
requirement in section 209(b)(1)(C), which requires California's
regulations to be consistent with section 202(a) of the CAA.\8\
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\1\ The ACT regulation is set forth in title 13, California Code
of Regulations (Cal. Code Regs.), sections 1963, and 1963.1 through
1963.5.
\2\ The ZEAS regulation is comprised of new sections 95690.1,
95690.2, 95690.3, 95690.4, 95690.5, 95690.6, 95690.7, and 95690.8,
title 17, Cal. Code Regs.
\3\ The ZEP Certification regulation is comprised of amendments
to title 13, Cal. Code Regs., section 1956.8 and title 17, Cal. Code
Regs., section 95663.
\4\ Letter from Richard W. Corey, CARB, dated December 20, 2021,
at p. 5, available at Docket No. EPA-HQ-OAR-2022-0331. The Waiver
Request Support Document, attached to the letter from Mr. Corey, is
available at Docket No. EPA-HQ-OAR-2022-0331.
\5\ The Waiver Request Support Document provides a summary of
the adopted regulation, a brief history of similar regulations, and
an analysis of the adopted regulation under the waiver criteria in
section 209(b)(1) of the CAA.
\6\ Waiver Request Support Document at 19-21.
\7\ Waiver Request Support Document at 21-30.
\8\ Waiver Request Support Document at 30-39.
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II. Scope of Preemption and Criteria for a Waiver Under the Clean Air
Act
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) of the Act requires the Administrator, after notice
and
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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).\9\ Section
209(b)(1) requires the Administrator to grant a waiver unless he finds
that (A) the 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 decisions granting waivers of Federal preemption for
motor vehicles 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 giving appropriate
consideration to the cost of compliance within that time period or if
the Federal and State test procedures impose inconsistent certification
procedures.\10\
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\9\ ``The language of the statute and its legislative history
indicate that California's regulations, and California's
determination that they comply with the statute, when presented to
the Administrator are presumed to satisfy the waiver requirements
and that the burden of proving otherwise is on whoever attacks
them.'' Motor and Equipment Mfrs. Ass'n v. EPA, 627 F.2d 1095, 1121
(D.C. Cir. 1979).
\10\ To be consistent, the California certification procedures
need not be identical to the Federal certification procedures.
California procedures would be inconsistent, however, if
manufacturers would be unable to meet the state and the Federal
requirements with the same test vehicle in the course of the same
test. See, e.g., 43 FR 32182 (July 25, 1978).
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III. Request for Comment
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. EPA invites comment on the following
three criteria: whether (a) California's determination that its motor
vehicle emission standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal standards
is arbitrary and capricious, (b) California needs such standards to
meet compelling and extraordinary conditions, and (c) California's
standards and accompanying enforcement procedures are consistent with
section 202(a) of the Clean Air Act.
With regard to section 209(b)(1)(B), EPA must grant a waiver
request unless the Agency finds that California ``does not need such
State standards to meet compelling and extraordinary conditions.'' EPA
has interpreted the phrase ``need[s] such State standards to meet
compelling and extraordinary conditions'' to mean that California needs
a separate motor vehicle program as a whole in order to address
environmental problems caused by conditions specific to California and/
or effects unique to California (the ``traditional''
interpretation).\11\ EPA intends to use this traditional interpretation
in evaluating California's need for the Advanced Clean Trucks, Zero
Emission Airport Shuttle Bus, and Zero Emission Powertrain
Certification regulations. EPA seeks comment on whether California
needs the Advanced Clean Trucks, Zero Emission Airport Shuttle Bus, and
Zero Emission Powertrain Certification regulations under section
209(b)(1)(B).
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\11\ See, e.g., 81 FR 78149, 78153 (November 7, 2016); 81 FR
95982 95985-86 (December 29, 2016). EPA recently found and
confirmed, in the Agency's reconsideration of a previous withdrawal
of a waiver of preemption for CARB's Advanced Clean Car program,
that the traditional interpretation of section 209(b)(1)(B) was
appropriate and continues to be a better interpretation. 87 FR
14332, 14367 (March 14, 2022). CARB's December 21, 2021, waiver
request addresses both the traditional and an alternative
interpretation wherein the need for the specific standards in the
waiver request would be evaluated.
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With regard to section 209(b)(1)(C), EPA must grant a waiver
request unless the Agency finds that California's standards are not
consistent with section 202(a). EPA has previously stated that
consistency with section 202(a) requires that California's standards
must be technologically feasible within the lead time provided, giving
due consideration to costs, and that California and applicable Federal
test procedures be consistent.\12\ Included in, but not limited to,
EPA's request for comment is what provisions in section 202(a) of the
CAA are applicable to California due to the reference of section 202(a)
in section 209(b)(1)(C).\13\ EPA invites comment on how such
provisions, to the extent they may be applicable to California, should
be evaluated in the context of EPA's evaluation of CARB's waiver
request under the criteria in section 209(b)(1)(C) of the CAA.
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\12\ See, e.g., 81 FR 78149, 78153-54 (``EPA has previously
stated that the determination is limited to whether those opposed to
the waiver have met their burden of establishing that California's
standards are technologically infeasible, or that California's test
procedures impose requirements inconsistent with the federal test
procedure. Infeasibility would be shown here by demonstrating that
there is inadequate lead time to permit the development of
technology necessary to meet the 2013 HD OBD New or Stricter
Requirements that are subject to the waiver request, giving
appropriate consideration to the cost of compliance within that
time.'' (citing 38 FR 30136 (November 1, 1973) and 40 FR 30311 (July
18, 1975)); 81 FR 95982, 95986 (December 29, 2016); 70 FR 50322
(August 26, 2005).
\13\ For example, section 202(a)(3)(C) of the CAA provides:
``(C) Lead time and stability.--Any standard promulgated or revised
under this paragraph and applicable to classes or categories of
heavy-duty vehicles or engines shall apply for a period of no less
than 3 model years beginning no earlier than the model year
commencing 4 years after such revised standard is promulgated.'' See
also 59 FR 48625 (September 22, 1994) and associated Decision
Document at EPA-HQ-OAR-2022-0331; EPA's Notice of denial--Petition
for Reconsideration of Waiver of Federal Preemption for California
to Enforce Its NOX Emission Standards and Test
Procedures, 46 FR 22032 (April 15, 1981).
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IV. Procedures for Public Participation
EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the virtual hearing, please visit https://usepa.zoomgov.com/webinar/register/WN_ByheDTzYSPuoGbv8J7yNwg. The last day to pre-
register to speak at the hearing will be June 21, 2022. If you require
the services of a translator or special accommodations such as audio
description, please pre-register for the hearing and describe your
needs by June 14, 2022. EPA may not be able to arrange accommodations
without advance notice.
Each commenter will have 5 minutes to provide oral testimony. EPA
may ask clarifying questions during the oral presentations but will not
respond to the presentations at that time. EPA recommends submitting
the text of your oral comments as written comments to the rulemaking
docket. Written statements and supporting information submitted during
the comment period will be considered with the same weight as oral
comments and supporting information presented at the public hearing.
The Agency will make a verbatim record of the proceedings at the
hearing and will be placed in the docket. EPA will keep the record open
until August 2, 2022. Upon expiration of the comment period, the
Administrator will render a decision on CARB's request based on the
record of the public hearing, relevant written submissions, and other
information that she deems pertinent.
Persons with written comments containing proprietary information
must distinguish such information from other comments to the greatest
possible extent
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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 CBI, then a non-confidential version of the document
that summarizes the 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.
Sarah Dunham,
Director, Office of Transportation and Air Quality, Office of Air and
Radiation.
[FR Doc. 2022-12717 Filed 6-10-22; 8:45 am]
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