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]

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 ( printed 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]

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]

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]

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).

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 ( printed 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.

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.

87 FR 35760