[Federal Register Volume 87, Number 113 (Monday, June 13, 2022)]
[Notices]
[Pages 35768-35771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12717]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2022-0331; FRL 9883-01-OAR]


California State Motor Vehicle Pollution Control Standards; 
Advanced Clean Trucks; Zero Emission Airport Shuttle; Zero-Emission 
Power Train Certification; 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 three 
rulemaking actions--the Advanced Clean Trucks (ACT), Zero Emission 
Airport Shuttle Bus (ZEAS), and Zero Emission Powertrain (ZEP) 
Certification regulations. The regulations require manufacturers to 
produce and sell increasing numbers of zero-emission medium and heavy-
duty vehicles, require certain fleets to acquire increasing numbers of 
zero emitting airport shuttles, and establish new certification 
requirements and optional emission standards for 2021 and subsequent 
model year zero-emission medium- and heavy-duty vehicles and the zero-
emission powertrains installed on them. By letter dated December 20, 
2021, CARB submitted a request that EPA grant waivers of preemption 
under the Clean Air Act (CAA) 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 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://usepa.zoomgov.com/webinar/register/WN_ByheDTzYSPuoGbv8J7yNwg.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2022-0331, 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-2022-0331. 
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-2022-0331.
    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.

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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-
0331. 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 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 
Omnibus Low NOX Regulation, Docket No. EPA-HQ-OAR-2022-0332, 
and the 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 Requests

    CARB's December 20, 2021, letter to the Administrator notified EPA 
that CARB had finalized Advanced Clean Trucks (ACT), Zero Emission 
Airport Shuttle Bus (ZEAS), and Zero Emission Powertrain (ZEP) 
Certification regulations. The ACT regulation, adopted by the Board on 
January 26, 2021, requires that manufacturers produce and sell 
increasing quantities of medium- and heavy-duty zero-emission vehicles 
(ZEVs) and near zero emission vehicles (NZEVs) in California. These 
quantities are based on increasingly higher percentages of 
manufacturers' annual sales of on-road heavy-duty vehicles, beginning 
in the 2024 model year.\1\ The ZEAS regulation, adopted by the Board on 
June 27, 2019, establishes steadily increasing zero-emission airport 
shuttle fleet composition requirements for airport shuttle fleet owners 
who service the thirteen largest California airports.\2\ The ZEP 
Certification regulation, adopted by the Board on June 27, 2019, 
establishes certification requirements and optional emission standards 
for 2021 and subsequent model year medium- and heavy-duty ZEVs and the 
zero-emission powertrains installed in such vehicles.\3\ CARB requests 
that EPA grant a new waiver for each of these regulations. 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 Waiver Request Support 
Document, addresses how each of its three regulations contained in the 
waiver request meet each of the three waiver criteria in section 
209(b)(1) of the CAA.\5\ 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.\6\ CARB also explains 
how it continues to demonstrate California's need for a separate motor 
vehicle emission program, including the three regulations contained in 
its waiver request, under section 209(b)(1)(B) of the CAA.\7\ Finally, 
CARB explains how the three 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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    \1\ The ACT regulation is set forth in title 13, California Code 
of Regulations (Cal. Code Regs.), sections 1963, and 1963.1 through 
1963.5.
    \2\ The ZEAS regulation is comprised of new sections 95690.1, 
95690.2, 95690.3, 95690.4, 95690.5, 95690.6, 95690.7, and 95690.8, 
title 17, Cal. Code Regs.
    \3\ The ZEP Certification regulation is comprised of amendments 
to title 13, Cal. Code Regs., section 1956.8 and title 17, Cal. Code 
Regs., section 95663.
    \4\ Letter from Richard W. Corey, CARB, dated December 20, 2021, 
at p. 5, available at Docket No. EPA-HQ-OAR-2022-0331. The Waiver 
Request Support Document, attached to the letter from Mr. Corey, is 
available at Docket No. EPA-HQ-OAR-2022-0331.
    \5\ 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.
    \6\ Waiver Request Support Document at 19-21.
    \7\ Waiver Request Support Document at 21-30.
    \8\ Waiver Request Support Document at 30-39.
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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

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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. 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 need for the Advanced Clean Trucks, Zero 
Emission Airport Shuttle Bus, and Zero Emission Powertrain 
Certification regulations. EPA seeks comment on whether California 
needs the Advanced Clean Trucks, Zero Emission Airport Shuttle Bus, and 
Zero Emission Powertrain Certification 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 December 21, 2021, 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, 78153-54 (``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).
    \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-2022-0331; 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, 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

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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. 2022-12717 Filed 6-10-22; 8:45 am]
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