[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 [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 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: [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 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