Notice2024-15343
California State Motor Vehicle Pollution Control Standards; Advanced Clean Fleets Regulation; Request for Waiver of Preemption and Authorization; Opportunity for Public Hearing and Public Comment
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Published
July 12, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The California Air Resources Board (CARB) has notified the Environmental Protection Agency (EPA) that it has adopted Advanced Clean Fleets (ACF) regulations, applicable to affected state and local government fleets, drayage truck fleets, federal agency fleets, and large commercial fleets that own, lease, or operate on-road medium-duty and heavy-duty vehicles, and light-duty package delivery vehicles, to incorporate zero-emitting vehicles beginning in 2024. The ACF regulations also require that all new California-certified medium- and heavy-duty vehicle sales be zero-emitting vehicles starting in 2036. Elements of the ACF regulation apply to off-road engines and equipment, specifically off-road yard tractors. By letter dated November 15, 2023, CARB submitted a request that EPA grant a waiver of preemption under section 209(b) of the Clean Air Act (CAA) for the ACF on-road regulations and an authorization under section 209(e) of the CAA for the ACF off-road 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.
Full Text
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<title>Federal Register, Volume 89 Issue 134 (Friday, July 12, 2024)</title>
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[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Notices]
[Pages 57151-57154]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15343]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2023-0589; FRL-12042-01-OAR]
California State Motor Vehicle Pollution Control Standards;
Advanced Clean Fleets Regulation; Request for Waiver of Preemption and
Authorization; 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 adopted Advanced
Clean Fleets (ACF) regulations, applicable to affected state and local
government fleets, drayage truck fleets, federal agency fleets, and
large commercial fleets that own, lease, or operate on-road medium-duty
and heavy-duty vehicles, and light-duty package delivery vehicles, to
incorporate zero-emitting vehicles beginning in 2024. The ACF
regulations also require that all new California-certified medium- and
heavy-duty vehicle sales be zero-emitting vehicles starting in 2036.
Elements of the ACF regulation apply to off-road engines and equipment,
specifically off-road yard tractors. By letter dated November 15, 2023,
CARB submitted a request that EPA grant a waiver of preemption under
section 209(b) of the Clean Air Act (CAA) for the ACF on-road
regulations and an authorization under section 209(e) of the CAA for
the ACF off-road 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: Written comments must be received on or before September
16, 2024.
Public Hearing: EPA plans to hold a virtual public hearing on
August 14, 2024, regarding CARB's waiver and authorization request. See
SUPPLEMENTARY INFORMATION for further information on the virtual public
hearing and registration. Additional information regarding the virtual
public hearing and this action can be found at: <a href="https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet">https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet</a>.
ADDRESSES:
Comments: You may submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2023-0589, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>
(our preferred method). Follow the on-line instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#0c6d216d6268217e2168636f6769784c697c6d226b637a"><span class="__cf_email__" data-cfemail="98f9b5f9f6fcb5eab5fcf7fbf3fdecd8fde8f9b6fff7ee">[email protected]</span></a>.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, OAR, Docket EPA-HQ-OAR-2023-0589, Mail Cod 28221T, 1200
Pennsylvania Ave. NW, Washington, DC 20460. Please include a total of
two copies.
<bullet> Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Ave.
NW, Washington, DC 20004. The Docket Center's hours of operation are
8:30 a.m.-4:30 p.m., Monday through 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the process for these actions, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document. 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Public Hearing: The virtual public hearing will be held on August
14, 2024. The hearing will begin at 10 a.m. Eastern Daylight Time and
will end when all parties who wish to speak have had an opportunity to
do so. All hearing attendees, for those wishing to attend the hearing
(including even those who do not intend to provide testimony), should
register by August 7, 2024. Information on how to register for the
virtual public hearing regarding the ACF waiver and authorization
request can be found at: <a href="https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet">https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet</a>.
FOR FURTHER INFORMATION CONTACT: Mark Coryell, Office of Transportation
and Air Quality, U.S. Environmental Protection Agency; Telephone
number: (734) 214-4446; Email address: <a href="/cdn-cgi/l/email-protection#7c1f130e0519101052111d0e173c190c1d521b130a"><span class="__cf_email__" data-cfemail="d7b4b8a5aeb2bbbbf9bab6a5bc97b2a7b6f9b0b8a1">[email protected]</span></a>. Jeremy
O'Kelly, Office of Transportation and Air Quality, U.S. Environmental
Protection Agency; Telephone number: (202) 250-8884; Email address:
<a href="/cdn-cgi/l/email-protection#ee81858b828297c0848b9c8b8397ae8b9e8fc0898198"><span class="__cf_email__" data-cfemail="325d59575e5e4b1c585740575f4b725742531c555d44">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. CARB's Waiver and Authorization Request
CARB's November 15, 2023, letter to the Administrator notified EPA
that CARB had finalized its ACF regulations. The ACF regulations,
adopted by the Board on April 28, 2023 (approved by California's Office
of Administrative Law (OAL) on September 29, 2023, and becoming
effective October 1, 2023).\1\ Detailed descriptions of the ACF
regulatory provisions are provided in CARB's request to EPA, CARB's
``Staff Report: Initial Statement of Reasons'' (Staff Report), the
Notices of Public Availability of Modified Text and Additional
Documents and Information
[[Page 57152]]
(Notices of Public Availability), and the Final Statement of Reasons
(FSOR).\2\
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\1\ The Advanced Clean Fleets regulations are comprised of new
title 13, California Code of Regulations (Cal. Code Regs.) sections
2013 through 2013.4, sections 2014 through 2014.3, sections 2015
through 2015.6, and section 2016.
\2\ CARB's Waiver and Authorization Support Document at 6-15
(EPA Docket: EPA-HQ-OAR-2023-0589). The Staff Report, Notices of
Public Availability, and FSOR are also located in EPA's docket.
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CARB requests that EPA grant a new waiver for the ACF on-road
regulatory program. 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 analysis, set
forth in its ACF Waiver and Authorization Support Document, addresses
how the ACF on-road regulations and CARB's waiver request meet each of
the three waiver criteria in section 209(b)(1) of the CAA.\4\ For
example, CARB explains how the ACF on-road 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, including the ACF on-road regulations contained in its waiver
request, under section 209(b)(1)(B) of the CAA.\6\ Finally, CARB
explains how the ACF on-road 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\
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\3\ Letter from Steven S. Cliff, CARB, dated November 15, 2023,
EPA-HQ-OAR-2023-0589. The ACF Waiver and Authorization Support
Document, attached to the letter from Mr. Cliff, are both available
at EPA-HQ-OAR-2023-0589.
\4\ The ACF Waiver and Authorization Support Document provides a
summary of the adopted regulations, a brief history of similar
regulations, and an analysis of the adopted regulations under the
waiver criteria in section 209(b)(1) of the CAA.
\5\ ACF Waiver and Authorization Support Document at 21-24.
\6\ Id. at 32-30.
\7\ Id. at 30-45.
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CARB also requests that EPA grant a new authorization for the ACF
off-road regulatory program. CARB's authorization analysis, set forth
in its ACF Waiver and Authorization Support Document, addresses how the
ACF off-road regulations and CARB's authorization request meet each of
the three authorization criteria in section 209(e)(2)(A) of the CAA.\8\
For example, CARB explains how the ACF off-road regulations will not
cause California off-road vehicle and equipment 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(e)(2)(A)(1) of the CAA.\9\ CARB also
explains how it continues to demonstrate California's need for a
separate off-road vehicle and equipment emission program, including the
ACF off-road regulations contained in its authorization request, under
section 209(e)(2)(A)(2) of the CAA.\10\ Finally, CARB explains how the
ACF off-road regulations in its authorization request meet the
requirement in section 209(e)(2)(A)(3), which requires California's
regulations to be consistent with section 209 of the CAA.\11\
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\8\ The ACF Waiver and Authorization Support Document provides a
summary of the adopted ACF off-road regulations and an analysis of
the adopted regulation under the authorization criteria in section
209(e)(2)(A) of the CAA.
\9\ ACF Waiver and Authorization Support Document at 45.
\10\ Id. at 46-47.
\11\ Id. at 47-49.
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II. Scope of Preemption and Criteria for a Waiver and Authorization
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).\12\
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.\13\
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\12\ ``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).
\13\ 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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Section 209(e)(1) of the CAA prohibits all states and local
governments from adopting or attempting to enforce any standard or
other requirement relating to the control of emissions from certain
types of new nonroad engines or nonroad vehicles, including both ``(A)
New engines which are used in construction equipment or vehicles or
used in farm equipment or vehicles and which are smaller than 175
horsepower'' and ``(B) New locomotives or new engines used in
locomotives.'' \14\ Section 209(e)(2)(A) of the CAA, however, 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 nonroad engines
and vehicles otherwise not prohibited under section 209(e)(1) if
California determines that California standards will be, in the
aggregate, at least as protective of public health and welfare as are
applicable Federal standards. However, the EPA shall not grant such
authorization if it 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
[[Page 57153]]
procedures are not consistent with [CAA section 209].\15\
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\14\ 42 U.S.C. 7543(e)(1).
\15\ 42 U.S.C. 7543(e)(2)(A).
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On July 20, 1994, the EPA promulgated a rule that sets forth, among
other things, regulations providing the criteria, as found in section
209(e)(2)(A), that the EPA must consider before granting any California
authorization request for nonroad engine or vehicle emission
standards.\16\ The EPA revised these regulations in 1997.\17\ The
criteria for granting California authorization requests, as reflected
in section 209(e)(2)(A), can be found at 40 CFR 1074.105.
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\16\ 59 FR 36969 (July 20, 1994).
\17\ 62 FR 67733 (December 30, 1997). The preemption regulations
were later transcribed at 40 CFR part 1074; see 73 FR 59034 (October
8, 2008).
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As stated in the preamble to the 1994 rule, the EPA has
historically interpreted the section 209(e)(2)(A)(iii) ``consistency''
inquiry (see 40 CFR 1074.105(b)(3)) 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 the EPA
has interpreted that subsection in the context of section 209(b) motor
vehicle waivers).\18\
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\18\ 59 FR 36969 (July 20, 1994).
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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 (such as ``. . . any standard or other
requirement relating to the control of emissions from . . . (A) New
engines which are used in construction equipment or vehicles or used in
farm equipment or vehicles and which are smaller than 175 horsepower.
(B) New locomotives or new engines used in locomotives.'').
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. Pursuant to
section 209(b)(1)(C), the Administrator shall not grant California a
motor vehicle waiver if he finds that California ``standards and
accompanying enforcement procedures are not consistent with section
202(a)'' of the Act. Previous decisions granting waivers and
authorizations have noted that state standards and enforcement
procedures are inconsistent with section 202(a) if: (1) there is
inadequate lead time to permit the development of the necessary
technology giving appropriate consideration to the cost of compliance
within that time, or (2) the federal and state testing procedures
impose inconsistent certification requirements.\19\
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\19\ 78 FR 58090, 58092 (September 20, 2013).
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III. EPA's Request for Comments
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.
EPA invites comment on the following three waiver criteria as
applicable to CARB's ACF on-road regulations: 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).\20\ EPA intends to use this traditional interpretation
in evaluating California's need for the ACF regulations under section
209(b)(1)(B).
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\20\ 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 November 15, 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.
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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.\21\
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\21\ See, e.g., 81 FR 78149, 78153-54 (November 7, 2016) (``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).
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We also request comment on whether the ACF off-road regulations
meet the criteria for an EPA authorization. Specifically, 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 accompanying
enforcement procedures are consistent with section 209 of the Act. As
explained above, the EPA considers several provisions with regard to
the consistency with section 209 of the Act criterion.
IV. Procedures for Public Participation
The virtual public hearing will be held on August 14, 2024. The
hearing will begin at 10:00 a.m. Eastern Daylight Time (EDT) 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 August 7,
2024. Information on how to register for the virtual public hearing
regarding the ACF waiver and authorization request can be found at:
<a href="https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet">https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet</a>. 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 August 7, 2024. The EPA may not be able to arrange
accommodations without advance notice.
[[Page 57154]]
Please note that any updates made to any aspect of the ACF waiver
and authorization hearing will be posted online at: <a href="https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet">https://www.epa.gov/regulations-emissions-vehicles-and-engines/virtual-public-hearing-californias-advanced-clean-fleet</a>.While the EPA expects the
hearing to go forward as set forth above, please monitor the hearing
website or contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to determine if there are any updates. The EPA does not
intend to publish a document in the Federal Register announcing
updates.
Each commenter will have 3 minutes to provide oral testimony. The
EPA may ask clarifying questions during the oral presentations but will
not respond to the presentations at that time. The EPA recommends
submitting the text of your oral comments as written comments to the
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 for
the respective authorization request. The Agency will make a verbatim
record of the proceedings at the hearing that will be placed in the
docket. The EPA will keep the record open until September 16, 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.
William Charmley,
Director, Assessment and Standards Division, Office of Transportation
and Air Quality.
[FR Doc. 2024-15343 Filed 7-11-24; 8:45 am]
BILLING CODE 6560-50-P
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