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[Federal Register Volume 90, Number 3 (Monday, January 6, 2025)]
[Notices]
[Pages 643-645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31125]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2022-0332; FRL-9902-02-OAR]

California State Motor Vehicle and Engine and Nonroad Engine 
Pollution Control Standards; The ``Omnibus'' Low NOX Regulation; Waiver 
of Preemption; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision.

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SUMMARY: The Environmental Protection Agency (``EPA'') is providing 
notice of its decision to grant the California Air Resources Board's 
(``CARB'') request for a waiver of Clean Air Act (CAA) preemption for 
its Heavy-Duty Vehicle and Engine ``Omnibus'' Low NOX 
Regulations (``Omnibus Low NOX program''). EPA's decision 
also includes an authorization for portions of the Omnibus Low 
NOX program that pertain to off-road diesel engines. This 
decision was issued under the authority of the Clean Air Act (``CAA'' 
or ``Act'') section 209.

DATES: Petitions for review must be filed by March 7, 2025.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2022-0332. All documents relied upon in making this 
decision, including those submitted to EPA by CARB, are contained in 
the public docket. Publicly available docket materials are available 
either electronically through www.regulations.gov or in hard copy at 
the 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. to 4:30 p.m.; generally, it is open Monday through 
Friday, except Federal holidays. The electronic mail (email) address 
for the EPA Docket is: [email protected]. An electronic version of 
the public docket is available through the Federal government's 
electronic public docket and comment system. You may access EPA dockets 
at http://www.regulations.gov. After opening the www.regulations.gov 
website, enter EPA-HQ-OAR-2022-0332 in the ``Enter Keyword or ID'' 
fill-in box to view documents in the record. Although a part of the 
official docket, the public docket does not include Confidential 
Business Information (``CBI'') or other information whose disclosure is 
restricted by statute.
    EPA's Office of Transportation and Air Quality (``OTAQ'') 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 Federal Register notices, some of which are cited 
in this notice; the page can be accessed at: https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations.

FOR FURTHER INFORMATION CONTACT: Brian Nelson, Office of Transportation 
and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood 
Drive, Ann Arbor, Michigan 48105. Telephone: 734-214-4278. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: On June 13, 2022, EPA published a Federal 
Register notice announcing its receipt of California's waiver request. 
In that notice, EPA invited public comment on

[[Page 644]]

California's waiver request and an opportunity to present testimony at 
a public hearing.\1\ EPA held a public hearing on June 29 and June 30, 
2022; EPA has considered all comments submitted, including those 
submitted after the close of the comment period.\2\
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    \1\ 87 FR 35765 (June 13, 2022).
    \2\ A transcript for each day of the hearing (June 29th and 
30th, 2022) can be found in the docket: June 29th Hearing 
Transcript, Docket No. EPA-HQ-OAR-2022-0332-0035; June 30th Hearing 
Transcript, Docket No. EPA-HQ-OAR-2022-0332-0036. All written 
comments are also located at regulations.gov at EPA-HQ-OAR-2022-
0332.
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    On December 17, 2024, I signed a Decision Document granting 
California a waiver of preemption pursuant to section 209(b) of the 
CAA, as amended, 42 U.S.C. 7543(b), for regulations applicable to new 
2024 and subsequent model year (MY) California on-road heavy-duty 
vehicles and engines, hereafter the Omnibus Low NOX 
regulations.\3\ The Omnibus Low NOX program includes 
requirements for revised heavy-duty emission standards, test 
procedures, regulatory useful life, and emissions warranty. As part of 
my decision, I have also decided to grant an authorization pursuant to 
section 209(e) of the CAA, as amended, 42 U.S.C. 7543(e) for portions 
of the Omnibus Low NOX program regarding off-road diesel 
engines. The Omnibus Low NOX program includes new PM 
emission standards for off-road diesel-fueled auxiliary power units. A 
comprehensive description of California's Omnibus Low NOX 
program can be found in the Decision Document for this waiver and in 
materials submitted to the Docket by the California Air Resources Board 
(CARB).\4\
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    \3\ EPA's Decision Document is located at EPA-HQ-OAR-2022-0332. 
EPA's waiver decision includes the Omnibus Low NOX 
Regulation which was adopted by the California Air Resources Board 
on August 27, 2020 by Resolution 20-23, and includes amendments 
approved by the CARB Executive Officer on September 9, 2021 under 
CARB Order No. R-21-007. The Omnibus Low NOX Regulation 
is comprised of new title 13, California Code of Regulations (Cal. 
Code Regs.) sections 2139.5, and 2169.1 through 2169.8; amendments 
to title 13, Cal. Code Regs., sections 1900, 1956.8, 1961.2, 1965, 
1968.2, 1971.1, 1971.5, 2035, 2036, 2111, 2112, 2113, 2114, 2115, 
2116, 2117, 2118, 2119, 2121, 2123, 2125, 2126, 2127, 2128, 2129, 
2130, 2131, 2133, 2137, 2139, 2140, 2141, 2142, 2143, 2144, 2145, 
2146, 2147, 2148, 2149, 2166, 2166.1, 2167, 2168, 2169, 2170, 2423, 
and 2485; and amendments to title 17 Cal. Code Regs. sections 95662 
and 95663. EPA's waiver decision also includes the 2023 Targeted 
Amendments to Omnibus which were adopted on December 28, 2023 by 
CARB Executive Order No. R-23-006. The 2023 Targeted Amendments are 
comprised of title 13, California Code of Regulations (Cal. Code 
Regs.) sections 1956.8, 1971.1, and 1971.5.
    \4\ The Decision Document can be found at EPA-HQ-OAR-2022-0332.
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    For the portions of the Omnibus Low NOX program that 
pertain to on-road emission standards, section 209(b) of the Act 
provides that the Administrator, after notice and opportunity for 
public hearing, shall waive Federal preemption for California to 
enforce new motor vehicle emission standards and accompanying 
enforcement procedures unless certain criteria are met. The criteria of 
denying such a waiver include consideration of whether California 
arbitrarily and capriciously determined that its standards are, in the 
aggregate, at least as protective of public health and welfare as the 
applicable Federal standards; whether California does not need such 
State standards to meet compelling and extraordinary conditions; and 
whether such State standards and accompanying enforcement procedures 
are not consistent with section 202(a) of the Act.
    For the portions of the Omnibus Low NOX program that 
pertain to nonroad emission standards, section 209(e)(1) of the Act 
permanently preempts any state, or political subdivision thereof, from 
adopting or attempting to enforce any standard or other requirement 
relating to the control of emissions for certain new nonroad engines or 
vehicles.\5\ For all other nonroad engines (including ``non-new'' 
engines), states generally are preempted from adopting and enforcing 
standards and other requirements relating to the control of emissions, 
except that section 209(e)(2)(A) of the Act requires EPA, after notice 
and opportunity for public hearing, to authorize California to adopt 
and enforce such regulations unless EPA makes one of three enumerated 
findings. Specifically, EPA must deny authorization if the 
Administrator finds that (1) California's protectiveness determination 
(i.e., that California standards will be, in the aggregate, as 
protective of public health and welfare as applicable federal 
standards) is arbitrary and capricious, (2) California does not need 
such standards to meet compelling and extraordinary conditions, or (3) 
the California standards and accompanying enforcement procedures are 
not consistent with section 209 of the Act.
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    \5\ States are expressly preempted from adopting or attempting 
to enforce any standard or other requirement relating to the control 
of emissions from new nonroad engines which are used in construction 
equipment or vehicles or used in farm equipment or vehicles and 
which are smaller than 175 horsepower. Such express preemption under 
section 209(e)(1) of the Act also applies to new locomotives or new 
engines used in locomotives.
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    On July 20, 1994, EPA promulgated a rule interpreting the three 
criteria set forth in section 209(e)(2)(A) that EPA must consider 
before granting any California authorization request for nonroad engine 
or vehicle emission standards.\6\ EPA revised these regulations in 
1997.\7\ As stated in the preamble to the 1994 rule, EPA has 
interpreted the consistency inquiry under the third criterion, outlined 
above and set forth in section 209(e)(2)(A)(iii), 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) of the Act.\8\ 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. 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 under section 209(b)(1)(C). 
That provision provides that the Administrator shall not grant 
California a motor vehicle waiver if the Administrator finds that 
California ``standards and accompanying enforcement procedures are not 
consistent with section 202(a)'' of the Act.
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    \6\ See ``Air Pollution Control; Preemption of State Regulation 
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20, 
1994).
    \7\ See ``Control of Air Pollution: Emission Standards for New 
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts; 
Preemption of State Regulation for Nonroad Engine and Vehicle 
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997). 
The applicable regulations are now found in 40 CFR part 1074, 
subpart B, Part 1074.
    \8\ EPA has interpreted section 209(b)(1)(C) in the context of 
section 209(b) motor vehicle waivers.
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    CARB determined that these standards and accompanying enforcement 
procedures do not cause California's standards, in the aggregate, to be 
less protective to public health and welfare than the applicable 
Federal standards. The administrative record, including information 
presented to me by parties opposing California's waiver, did not 
demonstrate that California arbitrarily or capriciously reached this 
protectiveness determination. Therefore, based on the record, I cannot 
find California's determination to be arbitrary and capricious under 
section 209(b)(1)(A) or section 209(e)(2)(A)(i).
    CARB has demonstrated the existence of compelling and extraordinary 
conditions justifying the need for its own motor vehicle emission 
control

[[Page 645]]

program as well and justifying the need for its own nonroad vehicle 
emission control program, which includes the subject standards and 
procedures. Although EPA believes it unnecessary, CARB has also 
demonstrated the need for the Omnibus Low NOX standards 
within the Omnibus regulations. The administrative record, including 
information presented to me by parties opposing California's waiver 
(and authorization) request, did not demonstrate that California no 
longer has compelling and extraordinary conditions justifying a need 
for its own motor vehicle emission control program and its own nonroad 
vehicle emission control program, or alternatively, a need for the 
Omnibus Low NOX standards. Therefore, based on the record, I 
agree that California continues to have compelling and extraordinary 
conditions which require its own programs, or alternatively, a need for 
the Omnibus Low NOX standards. Information presented to me 
by parties opposing the waiver did not demonstrate otherwise. Thus, I 
cannot deny the waiver based on section 209(b)(1)(B) or section 
209(e)(2)(A)(ii).
    CARB has submitted information that its emission standards and test 
procedures are technologically feasible and present no inconsistency 
with Federal requirements and are, therefore, consistent with section 
202(a) of the Act and are consistent with section 209 as required by 
section 209(e)(2)(A)(iii). The administrative record, including 
information presented to me by parties opposing California's waiver and 
authorization requests, did not satisfy the burden of persuading EPA 
that the standards are not technologically feasible within the 
available lead time, considering costs, or are otherwise inconsistent 
with section 202(a) (for onroad) or section 209 (for nonroad). Thus, 
based on the record, I cannot deny the waiver based on section 
209(b)(1)(C) or section 209(e)(2)(A)(iii).
    Accordingly, I hereby granted the waiver and authorization 
requested by California.
    Section 307(b)(1) of the CAA govern judicial review of final 
actions by EPA. Petitions for review must be filed by March 7, 2025.
    As with past waiver and authorization decisions, this action is not 
a rule as defined by Executive Order 12866. Therefore, it is exempt 
from review by the Office of Management and Budget as required for 
rules and regulations by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a 
supporting regulatory flexibility analysis addressing the impact of 
this action on small business entities.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, does not 
apply because this action is not a rule, for purposes of 5 U.S.C. 
804(3).

Michael S. Regan,
Administrator.
[FR Doc. 2024-31125 Filed 1-3-25; 8:45 am]
BILLING CODE 6560-50-P
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