[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 [email protected] 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: 
[email protected] or Kayla Steinberg, Office of Transportation 
and Air Quality, U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460, Email: 
[email protected].

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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]
BILLING CODE 6560-50-P


