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California State Motor Vehicle Pollution Control Standards; Advanced Clean Cars II Regulations; Request for Waiver of Preemption; Opportunity for Public Hearing and Public Comment Publication: Federal Register Agency: Environmental Protection Agency Byline: Sarah Dunham Date: 26 December 2023 Subjects: American Government  , The Environment
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[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 88908-88910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28301]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2023-0292; FRL-11010-01-OAR]
California State Motor Vehicle Pollution Control Standards;
Advanced Clean Cars II Regulations; 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 adopted regulations
applicable to new 2026 and subsequent model year (MY) California on-
road light- and medium-duty vehicles, hereinafter the Advanced Clean
Cars II (ACC II) regulations. The ACC II regulations include two sets
of requirements, one for conventional vehicles powered by internal
combustion engines and one for zero-emission vehicles (with plug-in
hybrid electric vehicles subject to both sets). By letter dated May 22,
2023, CARB submitted a request that EPA grant a waiver of preemption
under section 209(b) of the Clean Air Act (CAA) for the ACC II
regulations. 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:
Comments. Comments must be received on or before the date of
February 27, 2024.
Public Hearing: EPA will hold a virtual public hearing on January
10, 2024. If necessary, an additional session may be held virtually on
January 11, 2024, to accommodate the number of testifiers that sign-up
to testify. Please refer to the SUPPLEMENTARY INFORMATION section for
additional information regarding the public hearing and registration.
Additional information regarding the virtual public hearing and this
action can be found at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car.
ADDRESSES:
Comments. You may submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2023-0292, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov
(our preferred method). Follow the online instructions for submitting
comments.
Email: a-and-r-Docket@epa.gov. Include Docket ID No. EPA-
HQ-OAR-2023-0292 in the subject line of the message.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Air Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal Holidays).
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. 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.
Public hearing. The virtual public hearing will be held on January
10, 2024. If necessary, an additional session may be held on January
11, 2024, to accommodate the number of testifiers that sign-up to
testify. The hearing will begin each day at 10:00 a.m. Eastern Time
(ET) and end when all parties who wish to speak have had an opportunity
to do so. All hearing attendees (including even those who do not intend
to provide testimony) should register for the public hearing by January
4, 2024. Information on how to register can be found at https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car. Additional information
regarding the hearing appears below under SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of
Transportation and Air Quality, (6405J), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460, Email:
Dickinson.David@epa.gov. Telephone: (202) 343-9256.
SUPPLEMENTARY INFORMATION:
I. CARB's Waiver Request
CARB's May 22, 2023, letter to the EPA Administrator notified EPA
that CARB had finalized its ACC II regulations. The ACC II regulations,
adopted by the Board on August 25, 2022 (approved by California's
Office of Administrative Law (OAL) and
[[Page 88909]]
becoming effective November 30, 2022) contain a series of requirements
under California's low-emission vehicle (LEV) IV regulation and a
series of requirements regarding its zero-emission vehicle (ZEV)
program.\1\ The LEV IV requirements include, for example, applying
exhaust and evaporative emission fleet-average standards solely to
vehicles powered by internal combustion engines and excluding ZEVs from
the fleet calculation. The LEV IV requirements reduce the maximum
allowed exhaust and evaporative emission rates from vehicles under the
existing fleet-average standard and aim to reduce cold-start emissions
by applying the emissions standards to a broader range of in-use
driving conditions.\2\ The ZEV requirements of ACC II include, for
example, a requirement for vehicle manufacturers to sell increasing
percentages of ZEVs beginning with the 2026 MY.\3\ Manufacturers are
able to meet up to 20 percent of their sales requirements through the
use of plug-in hybrid vehicles (PHEVs) that meet specified
requirements.
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\1\ The ACC II regulatory text can be found in Attachment 7 to
CARB's May 22, 2023, ACC II waiver request (the ACC II Waiver
Support Document) found at EPA-HQ-OAR-2023-0292). The specific
regulatory provisions under EPA's waiver consideration can be found
at footnote 36 to the ACC II Waiver Support Document.
\2\ Cold starts occur when the vehicle engine is started after
the vehicle has been shut-off for a period of time.
\3\ The ZEV sales percentages for each vehicle manufacturer are
based on their respective fleet sales in a given model year.
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CARB requests that EPA grant a new waiver for the ACC II regulatory
program. 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 ACC II Waiver
Support Document, addresses how the ACC II regulations and CARB's
waiver request meet each of the three waiver criteria in section
209(b)(1) of the CAA.\5\ For example, CARB explains how the ACC II
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 EPA
Administrator 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 ACC II regulations contained in
its waiver request, under section 209(b)(1)(B) of the CAA.\7\ Finally,
CARB explains how the ACC II 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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\4\ Letter from Steven S. Cliff, CARB, dated May 22, 2023, EPA-
HQ-OAR-2023-0292. The ACC II Waiver Support Document, attached to
the letter from Mr. Cliff, are both available at EPA-HQ-OAR-2023-
0292.
\5\ The ACC II Waiver Support Document provides a summary of the
adopted regulations, 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\ ACC II Waiver Support Document at 28-35.
\7\ Id. at 35-44.
\8\ Id. at 44-57.
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II. Scope of Preemption and Criteria for a Waiver Under the Clean Air
Act
Section 209(a) of the CAA 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).\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. In this action, 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 CAA.
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
[[Page 88910]]
need for the ACC II 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 May 22, 2023, 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\
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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).
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EPA 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-local-transportation/vehicle-emissions-california-waivers-and-authorizations.
IV. Procedures for Public Participation
The virtual public hearing will be held on January 10, 2024. If
necessary, an additional session may be held on January 11, 2024, to
accommodate the number of testifiers that sign-up to testify. The
hearing will begin at 10:00 a.m. Eastern Time (ET). All hearing
attendees (including those who do not intend to provide testimony and
merely listen) should register for the public hearing at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car. Those seeking to register
should do so by January 4, 2024.
If you require the services of a translator or special
accommodations such as American Sign Language, please pre-register for
the hearing and describe your needs by January 4, 2024. EPA may not be
able to arrange accommodations without advance notice.
Please note that any updates made to any aspect of the hearing will
be posted online at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car. While EPA expects the hearing to go forward as set forth above,
please monitor the website or contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to determine if there are any
updates. EPA does not intend to publish a document in the Federal
Register announcing updates.
Each commenter will have 3 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 docket for
this action. 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 that will be placed in the docket. EPA will keep the record
open until February 27, 2024. After 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 he deems pertinent.
Sarah Dunham,
Director, Office of Transportation and Air Quality, Office of Air and
Radiation.
[FR Doc. 2023-28301 Filed 12-22-23; 8:45 am]
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