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California State Motor Vehicle Pollution Control Standards; Heavy-Duty Vehicle and Engine Emission Warranty and Maintenance Provisions; Request for Waiver of Preemption; Opportunity for Public Hearing and Public Comment Publication: Federal Register Signing Official: Sarah Dunham Agency: Environmental Protection Agency Date: 13 June 2022 
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[Federal Register Volume 87, Number 113 (Monday, June 13, 2022)]
[Notices]
[Pages 35760-35763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12718]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2022-0330; FRL 9900-01-OAR]
California State Motor Vehicle Pollution Control Standards;
Heavy-Duty Vehicle and Engine Emission Warranty and Maintenance
Provisions; Request for Waiver of Preemption; Opportunity for Public
Hearing and Public Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of opportunity for public hearing and comment.
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SUMMARY: The California Air Resources Board (CARB) has notified the
Environmental Protection Agency (EPA) that it has finalized its
rulemaking to amend provisions of the California emissions warranty and
emissions maintenance schedules to extend the emissions warranty
periods for 2022 and subsequent model year on-road heavy-duty diesel
engines and for 2022 and subsequent model year diesel vehicles with a
gross vehicle weight rating (GVWR) exceeding 14,000 pounds powered by
such engines (the 2018 HD Warranty Amendments). By letter dated October
22, 2021, CARB submitted a request that EPA determine that the 2018 HD
Warranty Amendments are within the scope of the previously-granted
waiver for California's emission standards and associated test
procedures for 2007 and subsequent model year heavy-duty diesel
vehicles and engines. Alternatively, CARB requests that EPA grant
California a new waiver of preemption for the 2018 HD Warranty
Amendments. This notice announces that EPA has scheduled a public
hearing concerning California's request and that EPA is accepting
written comment on the request.
DATES: Written comments must be received on or before August 2, 2022.
Public Hearing: EPA plans to hold a virtual public hearing on June
29, 2022. This one hearing will also cover the notices for California's
Omnibus Low NOx Regulation, Docket No. EPA-HQ-OAR-2022-0332, and
Advanced Clean Trucks, Zero Emission Airport Shuttle, and Zero-Emission
Power Train Certification regulations, Docket No. EPA-HQ-OAR-2022-0331.
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-2022-0330, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov
(our preferred
[[Page 35761]]
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-2022-0330.
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-2022-0330.
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-
0330. Publicly available docket materials are available either
electronically at https://www.regulations.gov or in hard copy at the
Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West,
Room B102, 1301 Constitution Ave. NW, Washington, DC Due to public
health concerns related to COVID-19, the EPA Docket Center and Reading
Room are open to the public by appointment only, and walk-ins are not
allowed. Visitors to the Reading Room must complete docket material
requests in advance and then make an appointment to retrieve the
material. Please contact the EPA Reading Room staff at (202) 566-1744
or via email at docket-customerservice@epa.gov to arrange material
requests and appointments. Hand deliveries and couriers may be received
by scheduled appointment only. For further information on EPA Docket
Center services and status, please visit us online at https://
www.epa.gov/dockets.
EPA's Office of Transportation and Air Quality also maintains a web
page that contains general information on its review of California
waiver and authorization requests. Included on that page are links to
prior waiver and authorization Federal Register notices. The page can
be accessed at https://www.epa.gov/state-and-localtransportation/vehicle-emissionscalifornia-waivers-and-authorizations. Please note
that due to differences between the software used to develop the
documents and the software into which the documents may be downloaded,
changes in format, page length, etc., may occur.
Public Hearing. The virtual public hearing will be held on June 29,
2022. The hearing will begin at 9:00 a.m. Eastern Time (ET) and end
when all parties who wish to speak have had an opportunity to do so. As
noted above, this one virtual hearing is designed to allow speakers to
also address the notices for California's Omnibus Low NOX
Regulation, Docket No. EPA-HQ-OAR-2022-0332, and Advanced Clean Trucks,
Zero Emission Airport Shuttle, and Zero-Emission Power Train
Certification regulations, Docket No. EPA-HQ-OAR-2022-0331. 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. Once an email is
sent to this address you will receive an automatic reply with further
information for registration. Be sure to check your clutter and junk
mailboxes for this reply. 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, Compliance 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 Waiver Request
CARB's October 22, 2021, letter to the Administrator notified EPA
that CARB had finalized amendments to its emission standards and
associated test procedures for heavy-duty diesel vehicles and
engines.\1\ These 2018 HD Warranty Amendments, adopted by the Board on
June 28, 2018, extend the emissions warranty periods for 2022 and
subsequent model year on-road heavy-duty diesel engines and for 2022
and subsequent model year diesel vehicles with a GVWR exceeding 14,000
pounds powered by such engines. In its letter to the Administrator,
CARB requests a determination that the 2018 HD Warranty Amendments are
within the scope of a waiver the Administrator previously granted for
California's emission standards and associated test procedures for 2007
and subsequent model year heavy-duty diesel vehicles and engines or,
alternatively, that EPA grant California a new waiver of preemption for
the amendments.\2\
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\1\ These amendments are set forth in title 13, California Code
of Regulations (Cal. Code Regs.), sections 1956.8, 2035, 2036, and
2040.
\2\ This waiver is at 70 FR 50322 (August 26, 2005). CARB's
letter from Richard W. Corey, dated October 22, 2021, is available
at Docket No. EPA-HQ-OAR-2022-0330. The Waiver Request Support
Document, attached to the letter from Mr. Corey, is available at
Docket No. EPA-HQ-OAR-2022-0330.
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CARB's waiver analysis, set forth in its Waiver Request Support
Document, addresses how the amendments contained in the waiver request
meet the requirements of a within-the-scope waiver as well as each of
the three waiver criteria in section 209(b)(1) of the CAA.\3\ For
example, CARB explains
[[Page 35762]]
how its amendments will not undermine CARB's protectiveness
determinations regarding California's standards for heavy-duty diesel
engines or vehicles.\4\ CARB also explains how it continues to
demonstrate California's need for a separate motor vehicle emission
program, including the amendments contained in its waiver request,
under section 209(b)(1)(B) of the CAA.\5\ 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.\6\
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\3\ 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.
\4\ Waiver Request Support Document at 15-16.
\5\ Waiver Request Support Document at 23-25.
\6\ Waiver Request Support Document at 20-23.
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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).\7\ 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.\8\
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\7\ ``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).
\8\ 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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If California amends regulations that were previously granted a
waiver, EPA can confirm that the amended regulations are within the
scope of the previously granted waiver. Such within-the-scope
amendments are permissible without a full waiver review if EPA
determines three conditions are met. First, the amended regulations
must not undermine California's determination that its standards, in
the aggregate, are as protective of public health and welfare as
applicable federal standards. Second, the amended regulations must not
affect consistency with section 202(a) of the Act. Third, the amended
regulations must not raise any ``new issues'' affecting EPA's prior
waivers.\9\
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\9\ See, e.g., 81 FR 78149 (November 7, 2016); 82 FR 6525
(January 19, 2017).
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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. First, we request comment on whether
CARB's 2018 HD Warranty Amendments should be considered under the
within-the-scope analysis or whether they should be considered under
the full waiver criteria. Specifically, we request comment on whether
California's 2018 HD Warranty Amendments (1) undermine California's
previous determination that its standards, in the aggregate, are at
least as protective of public health and welfare as comparable federal
standards, (2) affect the consistency of California's requirements with
section 202(a) of the Act, and (3) raise any other ``new issue''
affecting EPA's previous waiver or authorization determinations.
Should any party believe that CARB's 2018 HD Warranty Amendments do
not merit consideration as within-the-scope of the previous waivers,
EPA also requests comment on whether those amendments meet the criteria
for a full waiver. Specifically, EPA requests comment on 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).\10\ EPA intends to use this traditional
interpretation. EPA seeks comment on whether California needs the 2018
HD under section 209(b)(1)(B).
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\10\ 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).
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With regard to section 209(b)(1)(C), 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.\11\ Included in, but not
[[Page 35763]]
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).\12\ 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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\11\ 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).
\12\ 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-2022-0330; EPA's Notice of denial--Petition
for Reconsideration of Waiver of Federal Preemption for California
to Enforce Its NOX Emission Standards and Test
Procedures, 46 FR 22032 (April 15, 1981).
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IV. Procedures for Public Participation
EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the virtual hearing or to otherwise attend, 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. Interested parties may
arrange with the reporter at the hearing to obtain a copy of the
transcript at their own expense. 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. 2022-12718 Filed 6-10-22; 8:45 am]
BILLING CODE 6560-50-P