[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 88908-88910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28301]


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

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2023-0292; FRL-11010-01-OAR]


California State Motor Vehicle Pollution Control Standards; 
Advanced Clean Cars II Regulations; 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.

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

SUMMARY: The California Air Resources Board (CARB) has notified the 
Environmental Protection Agency (EPA) that it has adopted regulations 
applicable to new 2026 and subsequent model year (MY) California on-
road light- and medium-duty vehicles, hereinafter the Advanced Clean 
Cars II (ACC II) regulations. The ACC II regulations include two sets 
of requirements, one for conventional vehicles powered by internal 
combustion engines and one for zero-emission vehicles (with plug-in 
hybrid electric vehicles subject to both sets). By letter dated May 22, 
2023, CARB submitted a request that EPA grant a waiver of preemption 
under section 209(b) of the Clean Air Act (CAA) for the ACC II 
regulations. This notice announces that EPA has scheduled a public 
hearing concerning California's request and that EPA is accepting 
written comment on the request.

DATES: 
    Comments. Comments must be received on or before the date of 
February 27, 2024.
    Public Hearing: EPA will hold a virtual public hearing on January 
10, 2024. If necessary, an additional session may be held virtually on 
January 11, 2024, to accommodate the number of testifiers that sign-up 
to testify. Please refer to the SUPPLEMENTARY INFORMATION section for 
additional information regarding the public hearing and registration. 
Additional information regarding the virtual public hearing and this 
action can be found at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car.

ADDRESSES: 
    Comments. You may submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2023-0292, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2023-0292 in the subject line of the message.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Air Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this action. Comments received may be posted without change to 
https://www.regulations.gov, including any personal information 
provided. For 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.
    Public hearing. The virtual public hearing will be held on January 
10, 2024. If necessary, an additional session may be held on January 
11, 2024, to accommodate the number of testifiers that sign-up to 
testify. The hearing will begin each day at 10:00 a.m. Eastern Time 
(ET) and end when all parties who wish to speak have had an opportunity 
to do so. All hearing attendees (including even those who do not intend 
to provide testimony) should register for the public hearing by January 
4, 2024. Information on how to register can be found at https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car. Additional information 
regarding the hearing appears below under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of 
Transportation and Air Quality, (6405J), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460, Email: 
[email protected]. Telephone: (202) 343-9256.

SUPPLEMENTARY INFORMATION: 

I. CARB's Waiver Request

    CARB's May 22, 2023, letter to the EPA Administrator notified EPA 
that CARB had finalized its ACC II regulations. The ACC II regulations, 
adopted by the Board on August 25, 2022 (approved by California's 
Office of Administrative Law (OAL) and

[[Page 88909]]

becoming effective November 30, 2022) contain a series of requirements 
under California's low-emission vehicle (LEV) IV regulation and a 
series of requirements regarding its zero-emission vehicle (ZEV) 
program.\1\ The LEV IV requirements include, for example, applying 
exhaust and evaporative emission fleet-average standards solely to 
vehicles powered by internal combustion engines and excluding ZEVs from 
the fleet calculation. The LEV IV requirements reduce the maximum 
allowed exhaust and evaporative emission rates from vehicles under the 
existing fleet-average standard and aim to reduce cold-start emissions 
by applying the emissions standards to a broader range of in-use 
driving conditions.\2\ The ZEV requirements of ACC II include, for 
example, a requirement for vehicle manufacturers to sell increasing 
percentages of ZEVs beginning with the 2026 MY.\3\ Manufacturers are 
able to meet up to 20 percent of their sales requirements through the 
use of plug-in hybrid vehicles (PHEVs) that meet specified 
requirements.
---------------------------------------------------------------------------

    \1\ The ACC II regulatory text can be found in Attachment 7 to 
CARB's May 22, 2023, ACC II waiver request (the ACC II Waiver 
Support Document) found at EPA-HQ-OAR-2023-0292). The specific 
regulatory provisions under EPA's waiver consideration can be found 
at footnote 36 to the ACC II Waiver Support Document.
    \2\ Cold starts occur when the vehicle engine is started after 
the vehicle has been shut-off for a period of time.
    \3\ The ZEV sales percentages for each vehicle manufacturer are 
based on their respective fleet sales in a given model year.
---------------------------------------------------------------------------

    CARB requests that EPA grant a new waiver for the ACC II regulatory 
program. 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 ACC II Waiver 
Support Document, addresses how the ACC II regulations and CARB's 
waiver request meet each of the three waiver criteria in section 
209(b)(1) of the CAA.\5\ For example, CARB explains how the ACC II 
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 EPA 
Administrator 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 ACC II regulations contained in 
its waiver request, under section 209(b)(1)(B) of the CAA.\7\ Finally, 
CARB explains how the ACC II 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\
---------------------------------------------------------------------------

    \4\ Letter from Steven S. Cliff, CARB, dated May 22, 2023, EPA-
HQ-OAR-2023-0292. The ACC II Waiver Support Document, attached to 
the letter from Mr. Cliff, are both available at EPA-HQ-OAR-2023-
0292.
    \5\ The ACC II Waiver Support Document provides a summary of the 
adopted regulations, 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\ ACC II Waiver Support Document at 28-35.
    \7\ Id. at 35-44.
    \8\ Id. at 44-57.
---------------------------------------------------------------------------

II. Scope of Preemption and Criteria for a Waiver Under the Clean Air 
Act

    Section 209(a) of the CAA 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).\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\
---------------------------------------------------------------------------

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

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. In this action, 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 CAA.
    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

[[Page 88910]]

need for the ACC II regulations under section 209(b)(1)(B).
---------------------------------------------------------------------------

    \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 May 22, 2023, waiver request 
addresses both the traditional and an alternative interpretation 
wherein the need for the specific standards in the waiver request 
would be evaluated.
---------------------------------------------------------------------------

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

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

    EPA 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-local-transportation/vehicle-emissions-california-waivers-and-authorizations.

IV. Procedures for Public Participation

    The virtual public hearing will be held on January 10, 2024. If 
necessary, an additional session may be held on January 11, 2024, to 
accommodate the number of testifiers that sign-up to testify. The 
hearing will begin at 10:00 a.m. Eastern Time (ET). All hearing 
attendees (including those who do not intend to provide testimony and 
merely listen) should register for the public hearing at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car. Those seeking to register 
should do so by January 4, 2024.
    If you require the services of a translator or special 
accommodations such as American Sign Language, please pre-register for 
the hearing and describe your needs by January 4, 2024. EPA may not be 
able to arrange accommodations without advance notice.
    Please note that any updates made to any aspect of the hearing will 
be posted online at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-car. While EPA expects the hearing to go forward as set forth above, 
please monitor the website or contact the person listed in the FOR 
FURTHER INFORMATION CONTACT section to determine if there are any 
updates. EPA does not intend to publish a document in the Federal 
Register announcing updates.
    Each commenter will have 3 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 docket for 
this action. 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 that will be placed in the docket. EPA will keep the record 
open until February 27, 2024. After expiration of the comment period, 
the Administrator will render a decision on CARB's request based on the 
record of the public hearing, relevant written submissions, and other 
information that he deems pertinent.

Sarah Dunham,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2023-28301 Filed 12-22-23; 8:45 am]
BILLING CODE 6560-50-P