California State Motor Vehicle Pollution Control Standards; Advanced Clean Fleets Regulation; Request for Waiver of Preemption and Authorization; Opportunity for Public Hearing and Public Comment Publication: Federal Register Agency: Environmental Protection Agency Byline: William Charmley Date: 12 July 2024 Subjects: American Government , The Environment

[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Notices]
[Pages 57151-57154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15343]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2023-0589; FRL-12042-01-OAR]


California State Motor Vehicle Pollution Control Standards; 
Advanced Clean Fleets Regulation; Request for Waiver of Preemption and 
Authorization; 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 Advanced 
Clean Fleets (ACF) regulations, applicable to affected state and local 
government fleets, drayage truck fleets, federal agency fleets, and 
large commercial fleets that own, lease, or operate on-road medium-duty 
and heavy-duty vehicles, and light-duty package delivery vehicles, to 
incorporate zero-emitting vehicles beginning in 2024. The ACF 
regulations also require that all new California-certified medium- and 
heavy-duty vehicle sales be zero-emitting vehicles starting in 2036. 
Elements of the ACF regulation apply to off-road engines and equipment, 
specifically off-road yard tractors. By letter dated November 15, 2023, 
CARB submitted a request that EPA grant a waiver of preemption under 
section 209(b) of the Clean Air Act (CAA) for the ACF on-road 
regulations and an authorization under section 209(e) of the CAA for 
the ACF off-road 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: Written comments must be received on or before September 
16, 2024.
    Public Hearing: EPA plans to hold a virtual public hearing on 
August 14, 2024, regarding CARB's waiver and authorization request. See 
SUPPLEMENTARY INFORMATION for further information on the virtual 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-fleet.

ADDRESSES: 
    Comments: You may submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2023-0589, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov 
(our preferred method). Follow the on-line instructions for submitting 
comments.
     Email: a-and-r-docket@epa.gov.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OAR, Docket EPA-HQ-OAR-2023-0589, Mail Cod 28221T, 1200 
Pennsylvania Ave. NW, Washington, DC 20460. Please include a total of 
two copies.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Ave. 
NW, Washington, DC 20004. The Docket Center's hours of operation are 
8:30 a.m.-4:30 p.m., Monday through 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 detailed instructions on sending comments and additional 
information on the process for these actions, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document. 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 https://www.epa.gov/dockets/commenting-epa-dockets.
    Public Hearing: The virtual public hearing will be held on August 
14, 2024. The hearing will begin at 10 a.m. Eastern Daylight Time and 
will end when all parties who wish to speak have had an opportunity to 
do so. All hearing attendees, for those wishing to attend the hearing 
(including even those who do not intend to provide testimony), should 
register by August 7, 2024. Information on how to register for the 
virtual public hearing regarding the ACF waiver and authorization 
request can be found at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet.

FOR FURTHER INFORMATION CONTACT: Mark Coryell, Office of Transportation 
and Air Quality, U.S. Environmental Protection Agency; Telephone 
number: (734) 214-4446; Email address: coryell.mark@epa.gov. Jeremy 
O'Kelly, Office of Transportation and Air Quality, U.S. Environmental 
Protection Agency; Telephone number: (202) 250-8884; Email address: 
okelly.jeremy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. CARB's Waiver and Authorization Request

    CARB's November 15, 2023, letter to the Administrator notified EPA 
that CARB had finalized its ACF regulations. The ACF regulations, 
adopted by the Board on April 28, 2023 (approved by California's Office 
of Administrative Law (OAL) on September 29, 2023, and becoming 
effective October 1, 2023).\1\ Detailed descriptions of the ACF 
regulatory provisions are provided in CARB's request to EPA, CARB's 
``Staff Report: Initial Statement of Reasons'' (Staff Report), the 
Notices of Public Availability of Modified Text and Additional 
Documents and Information

[[Page 57152]]

(Notices of Public Availability), and the Final Statement of Reasons 
(FSOR).\2\
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    \1\ The Advanced Clean Fleets regulations are comprised of new 
title 13, California Code of Regulations (Cal. Code Regs.) sections 
2013 through 2013.4, sections 2014 through 2014.3, sections 2015 
through 2015.6, and section 2016.
    \2\ CARB's Waiver and Authorization Support Document at 6-15 
(EPA Docket: EPA-HQ-OAR-2023-0589). The Staff Report, Notices of 
Public Availability, and FSOR are also located in EPA's docket.
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    CARB requests that EPA grant a new waiver for the ACF on-road 
regulatory program. 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 analysis, set 
forth in its ACF Waiver and Authorization Support Document, addresses 
how the ACF on-road regulations and CARB's waiver request meet each of 
the three waiver criteria in section 209(b)(1) of the CAA.\4\ For 
example, CARB explains how the ACF on-road 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, including the ACF on-road regulations contained in its waiver 
request, under section 209(b)(1)(B) of the CAA.\6\ Finally, CARB 
explains how the ACF on-road 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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    \3\ Letter from Steven S. Cliff, CARB, dated November 15, 2023, 
EPA-HQ-OAR-2023-0589. The ACF Waiver and Authorization Support 
Document, attached to the letter from Mr. Cliff, are both available 
at EPA-HQ-OAR-2023-0589.
    \4\ The ACF Waiver and Authorization Support Document provides a 
summary of the adopted regulations, a brief history of similar 
regulations, and an analysis of the adopted regulations under the 
waiver criteria in section 209(b)(1) of the CAA.
    \5\ ACF Waiver and Authorization Support Document at 21-24.
    \6\ Id. at 32-30.
    \7\ Id. at 30-45.
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    CARB also requests that EPA grant a new authorization for the ACF 
off-road regulatory program. CARB's authorization analysis, set forth 
in its ACF Waiver and Authorization Support Document, addresses how the 
ACF off-road regulations and CARB's authorization request meet each of 
the three authorization criteria in section 209(e)(2)(A) of the CAA.\8\ 
For example, CARB explains how the ACF off-road regulations will not 
cause California off-road vehicle and equipment 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(e)(2)(A)(1) of the CAA.\9\ CARB also 
explains how it continues to demonstrate California's need for a 
separate off-road vehicle and equipment emission program, including the 
ACF off-road regulations contained in its authorization request, under 
section 209(e)(2)(A)(2) of the CAA.\10\ Finally, CARB explains how the 
ACF off-road regulations in its authorization request meet the 
requirement in section 209(e)(2)(A)(3), which requires California's 
regulations to be consistent with section 209 of the CAA.\11\
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    \8\ The ACF Waiver and Authorization Support Document provides a 
summary of the adopted ACF off-road regulations and an analysis of 
the adopted regulation under the authorization criteria in section 
209(e)(2)(A) of the CAA.
    \9\ ACF Waiver and Authorization Support Document at 45.
    \10\ Id. at 46-47.
    \11\ Id. at 47-49.
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II. Scope of Preemption and Criteria for a Waiver and Authorization 
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).\12\ 
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.\13\
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    \12\ ``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).
    \13\ 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 prohibits all states and local 
governments from adopting or attempting to enforce any standard or 
other requirement relating to the control of emissions from certain 
types of new nonroad engines or nonroad vehicles, including both ``(A) 
New engines which are used in construction equipment or vehicles or 
used in farm equipment or vehicles and which are smaller than 175 
horsepower'' and ``(B) New locomotives or new engines used in 
locomotives.'' \14\ Section 209(e)(2)(A) of the CAA, however, 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 nonroad engines 
and vehicles otherwise not prohibited under section 209(e)(1) if 
California determines that California standards will be, in the 
aggregate, at least as protective of public health and welfare as are 
applicable Federal standards. However, the EPA shall not grant such 
authorization if it 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

[[Page 57153]]

procedures are not consistent with [CAA section 209].\15\
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    \14\ 42 U.S.C. 7543(e)(1).
    \15\ 42 U.S.C. 7543(e)(2)(A).
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    On July 20, 1994, the EPA promulgated a rule that sets forth, among 
other things, regulations providing the criteria, as found in section 
209(e)(2)(A), that the EPA must consider before granting any California 
authorization request for nonroad engine or vehicle emission 
standards.\16\ The EPA revised these regulations in 1997.\17\ The 
criteria for granting California authorization requests, as reflected 
in section 209(e)(2)(A), can be found at 40 CFR 1074.105.
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    \16\ 59 FR 36969 (July 20, 1994).
    \17\ 62 FR 67733 (December 30, 1997). The preemption regulations 
were later transcribed at 40 CFR part 1074; see 73 FR 59034 (October 
8, 2008).
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    As stated in the preamble to the 1994 rule, the EPA has 
historically interpreted the section 209(e)(2)(A)(iii) ``consistency'' 
inquiry (see 40 CFR 1074.105(b)(3)) 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 the EPA 
has interpreted that subsection in the context of section 209(b) motor 
vehicle waivers).\18\
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    \18\ 59 FR 36969 (July 20, 1994).
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    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 (such as ``. . . any standard or other 
requirement relating to the control of emissions from . . . (A) New 
engines which are used in construction equipment or vehicles or used in 
farm equipment or vehicles and which are smaller than 175 horsepower. 
(B) New locomotives or new engines used in locomotives.'').
    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. Pursuant to 
section 209(b)(1)(C), the Administrator shall not grant California a 
motor vehicle waiver if he finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the Act. Previous decisions granting waivers and 
authorizations have noted that state standards and enforcement 
procedures are inconsistent with section 202(a) if: (1) there is 
inadequate lead time to permit the development of the necessary 
technology giving appropriate consideration to the cost of compliance 
within that time, or (2) the federal and state testing procedures 
impose inconsistent certification requirements.\19\
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    \19\ 78 FR 58090, 58092 (September 20, 2013).
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III. EPA's Request for Comments

    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.
    EPA invites comment on the following three waiver criteria as 
applicable to CARB's ACF on-road regulations: 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).\20\ EPA intends to use this traditional interpretation 
in evaluating California's need for the ACF regulations under section 
209(b)(1)(B).
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    \20\ 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 November 15, 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.\21\
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    \21\ See, e.g., 81 FR 78149, 78153-54 (November 7, 2016) (``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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    We also request comment on whether the ACF off-road regulations 
meet the criteria for an EPA authorization. Specifically, 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 accompanying 
enforcement procedures are consistent with section 209 of the Act. As 
explained above, the EPA considers several provisions with regard to 
the consistency with section 209 of the Act criterion.

IV. Procedures for Public Participation

    The virtual public hearing will be held on August 14, 2024. The 
hearing will begin at 10:00 a.m. Eastern Daylight Time (EDT) 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 August 7, 
2024. Information on how to register for the virtual public hearing 
regarding the ACF waiver and authorization request can be found at: 
https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet. 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 August 7, 2024. The EPA may not be able to arrange 
accommodations without advance notice.

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    Please note that any updates made to any aspect of the ACF waiver 
and authorization hearing will be posted online at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet.While the EPA expects the 
hearing to go forward as set forth above, please monitor the hearing 
website or contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to determine if there are any updates. The EPA does not 
intend to publish a document in the Federal Register announcing 
updates.
    Each commenter will have 3 minutes to provide oral testimony. The 
EPA may ask clarifying questions during the oral presentations but will 
not respond to the presentations at that time. The EPA recommends 
submitting the text of your oral comments as written comments to the 
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 for 
the respective authorization request. The Agency will make a verbatim 
record of the proceedings at the hearing that will be placed in the 
docket. The EPA will keep the record open until September 16, 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.

William Charmley,
Director, Assessment and Standards Division, Office of Transportation 
and Air Quality.
[FR Doc. 2024-15343 Filed 7-11-24; 8:45 am]
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