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California State Motor Vehicle Pollution Control Standards and Nonroad Engine Pollution Control Standards; The ``Omnibus'' Low NOX Regulation; Request for Waivers 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 35765-35768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12719]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2022-0332; FRL 9902-01-OAR]
California State Motor Vehicle Pollution Control Standards and
Nonroad Engine Pollution Control Standards; The ``Omnibus'' Low NOX
Regulation; Request for Waivers 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 its
``Omnibus'' Low NOX Regulation, which establishes criteria
pollutant exhaust emission standards for new 2024 and subsequent model
year on-road medium- and heavy-duty engines and vehicles. The
regulation also establishes emissions-related requirements for off-road
engines. By letter dated January 31, 2022, CARB submitted a request
that EPA grant a waiver of preemption and an authorization under the
Clean Air Act (CAA) for this regulation. 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
Advanced Clean Truck Regulation, Docket No. EPA-HQ-OAR-2022-0331, 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://www.epa.gov/regulations-emissions-vehicles-and-engines/public-hearing-information-waiver-requests-californias.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2022-0332, 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-2022-0332.
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-2022-0332.
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. 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-
0332. 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
[[Page 35766]]
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
Advanced Clean Truck Regulation, Docket No. EPA-HQ-OAR-2022-0331, and
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 and Authorization Requests
CARB's January 31, 2022, letter to the Administrator notified EPA
that CARB had adopted its ``Omnibus'' Low NOX Regulation.\1\
The ``Omnibus'' Low NOX regulation, adopted by the Board on
August 27, 2020, establishes the next generation of criteria pollutant
(specifically, nitrous oxide (NOX) and particulate matter
(PM)) exhaust emission standards and other emission-related
requirements for new 2024 and subsequent model year on-road medium- and
heavy-duty engines and vehicles. In addition to these on-road
requirements, the Omnibus Low NOX Regulation incorporates
the PM emission standard established in the federal Phase 2 GHG
Regulation into both California's Heavy-Duty Diesel Engine Idling
Regulation and the associated California off-road diesel test
procedures for diesel-fueled auxiliary power units (APUs).\2\ CARB
requests that EPA grant a new waiver for the on-road medium- and heavy-
duty engines and vehicles standards and an authorization for the off-
road regulation. CARB's request and waiver analysis includes ``a
description of California's rulemaking action, a review of the criteria
governing EPA's evaluation of California's request for waiver and
authorization action, [CARB's] analysis and rationale supporting [its]
request, and supporting documents.'' \3\ CARB's waiver and
authorization analysis, set forth in the Waiver Request Support
Document, addresses how the on-road regulations within the Omnibus Low
NOX regulation contained in the waiver request meets each of
the three waiver criteria in section 209(b)(1) and addresses how the
off-road regulations contained in the request meets each of the three
authorization criteria in section 209(e)((2)(A) of the CAA.\4\ 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.\5\ CARB also explains how it continues to
demonstrate California's need for a separate motor vehicle emission
program, under section 209(b)(1)(B) of the CAA.\6\ Finally, CARB
explains how the 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.\7\
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\1\ The Omnibus regulation is comprised of new title 13,
California Code of Regulations (Cal. Code Regs.) sections 2139.5,
and 2169.1 through 2169.8; amendments to title 13, Cal. Code Regs.,
sections 1900, 1956.8, 1961.2, 1965, 1968.2, 1971.1, 1971.5, 2035,
2036, 2111, 2112, 2113, 2114, 2115, 2116, 2117, 2118, 2119, 2121,
2123, 2125, 2126, 2127, 2128, 2129, 2130, 2131, 2133, 2137, 2139,
2140, 2141, 2142, 2143, 2144, 2145, 2146, 2147, 2148, 2149, 2166,
2166.1, 2167, 2168, 2169, 2170, 2423, and 2485; and amendments to
title 17 Cal. Code Regs. sections 95662 and 95663.
\2\ Letter from Richard W. Corey, CARB, dated December 31, 2022,
at p. 1, available at Docket No. EPA-HQ-OAR-2022-0332. The Waiver
Request Support Document, attached to the letter from Mr. Corey, is
available to Docket No. EPA-HQ-OAR-2022-0332.
\3\ Letter from Richard W. Corey, CARB, dated December 31, 2022,
at p. 1.
\4\ 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.
\5\ Waiver Request Support Document at 46-50. Similarly, for
CARB's off-road regulation at 73.
\6\ Waiver Request Support Document at 50-52. Similarly, for
CARB's off-road regulation at 74-75.
\7\ Waiver Request Support Document at 52-72. Similarly, for
CARB's off-road regulation at 75-77.
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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 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).\8\ 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
[[Page 35767]]
within that time period or if the Federal and State test procedures
impose inconsistent certification procedures.\9\
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\8\ ``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).
\9\ 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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Section 209(e)(1) of the CAA, 42 U.S.C. 7543(e)(1), prohibits
states and local governments from adopting or attempting to enforce any
standard or requirement relating to the control of emissions from new
nonroad vehicles or engines. The CAA also preempts states from adopting
and enforcing standards and other requirements related to the control
of emissions from non-new nonroad engines or vehicles. Section
209(e)(2)(A) requires the Administrator, after notice and opportunity
for public hearing, to authorize California to adopt and enforce
standards and other requirements relating to the control of emissions
from such nonroad vehicles or engines if California determines that
California standards will be, in the aggregate, at least as protective
of public health and welfare as applicable Federal standards. Section
209(e)(2)(A) requires the Administrator to grant an authorization of
California's requirements unless he finds that (1) the determination of
California is arbitrary and capricious; (2) California does not need
such California standards to meet compelling and extraordinary
conditions; or (3) California standards and accompanying enforcement
procedures are not consistent with this section.
On July 20, 1994, EPA promulgated a rule that sets forth, among
other things, regulations providing the criteria, as found in section
209(e)(2)(A), which EPA must consider before granting any California
authorization request for new nonroad engine or vehicle emission
standards. EPA revised these regulations in 1997.\10\ As stated in the
preamble to the 1994 rule, EPA has historically interpreted the section
209(e)(2)(A)(iii) ``consistency'' inquiry to require, at minimum, that
California standards and enforcement procedures be consistent with
section 209(a), section 209(e)(1), and section 209(b)(1)(C) (as EPA has
interpreted that subsection in the context of section 209(b) motor
vehicle waivers). In order to be consistent with section 209(a),
California's nonroad standards and enforcement procedures must not
apply to new motor vehicles or new motor vehicle engines. To be
consistent with section 209(e)(1), California's nonroad standards and
enforcement procedures must not attempt to regulate engine categories
that are permanently preempted from state regulation. To determine
consistency with section 209(b)(1)(C), EPA typically reviews nonroad
authorization requests under the same ``consistency'' criteria that are
applied to motor vehicle waiver requests.
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\10\ 59 FR 36969 (July 20, 1994). These regulations were
subsequently slightly modified and moved to 40 CFR part 1074. See 73
FR 59379 (Oct. 8, 2008).
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III. Request for Comment
When EPA receives new waiver or authorization 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. Regarding California's
request for a waiver under section 209(b), for its motor vehicle
emission standards, 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 Omnibus Low NOX Regulations. EPA
seeks comment on whether California needs the Omnibus Low
NOX 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, 95985-95986 (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 January 31, 2022, 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, 78153-78154 (``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-2022-0332; 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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Regarding California's request for authorization under section
209(e), for its incorporation of the federal Phase 2 GHG Regulation PM
standard for diesel-fueled APUs into California's Heavy-Duty Diesel
Engine Idling Regulation and off-road test procedures, we request
comment on: (a) Whether 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) whether
California needs such standards to meet compelling and extraordinary
conditions; and (c) whether California's standards and
[[Page 35768]]
accompanying enforcement procedures are consistent with section 209 of
the Act.
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 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. 2022-12719 Filed 6-10-22; 8:45 am]
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