Air Plan Approval; California; Innovative Clean Transit Regulation, 62337-62341 [2022-21910]
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Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Proposed Rules
Air pollution control, Carbon monoxide,
Fees, Intergovernmental relations, Lead,
Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, Sulfur
oxides, Transportation, Volatile organic
compounds.
40 CFR Part 52
Environmental protection,
Administrative practice and procedure,
Air pollution control, Ammonia, Carbon
monoxide, Greenhouse gases,
Intergovernmental relations, Lead,
Nitrogen dioxide, Nitrogen oxides,
Ozone, Reporting and recordkeeping
requirements, Sulfur dioxide, Sulfur
oxides, Volatile organic compounds.
For the reasons stated in the
preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
[FR Doc. 2022–22259 Filed 10–13–22; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–R09–OAR–2022–0503; FRL–9936–01–
R9]
Air Plan Approval; California;
Innovative Clean Transit Regulation
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the California State
Implementation Plan (SIP) concerning
particulate matter (PM) and oxides of
nitrogen (NOX) emissions from public
transit buses. We are proposing to
approve State rules that regulate these
emission sources under the Clean Air
Act (CAA or the Act). We are taking
comments on this proposal and plan to
follow with a final action.
DATES: Comments must be received on
or before November 14, 2022.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2022–0503 at https://
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
SUMMARY:
1. The authority citation for part 51
continues to read as follows:
■
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
[Amended]
2. Amend § 51.165 by:
a. Lifting the stay on paragraphs
(a)(1)(v)(G) and (a)(1)(vi)(C)(3);
■ b. Removing paragraphs (a)(1)(v)(G)
and (a)(1)(vi)(C)(3); and
■ c. Removing and reserving paragraph
(a)(4).
■
■
[Amended]
3. Amend § 51.166 by:
a. Lifting the stay on paragraphs
(b)(2)(v) and (b)(3)(iii)(d);
■ b. Removing paragraphs (b)(2)(v) and
(b)(3)(iii)(d); and
■ c. Removing and reserving paragraph
(i)(1)(ii).
■
■
Appendix S to Part 51 [Amended]
■ 4. Amend appendix S to part 51 by:
■ a. Lifting the stay on paragraph
II.A.5(vii);
■ b. Removing paragraph II.A.5(vii); and
■ c. Removing and reserving paragraph
II.F.
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[Amended]
6. Amend § 52.21 by:
a. Lifting the stay on paragraphs
(b)(2)(v) and (b)(3)(iii)(c);
■ b. Removing paragraphs (b)(2)(v) and
(b)(3)(iii)(c); and
■ c. Removing and reserving paragraph
(i)(1)(vii).
■
■
AGENCY:
PART 51—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
§ 51.166
§ 52.21
40 CFR Part 52
Michael S. Regan,
Administrator.
§ 51.165
Authority: 42 U.S.C. 7401 et seq.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
5. The authority citation for part 52
continues to read as follows:
■
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. If you need
assistance in a language other than
English or if you are a person with
disabilities who needs a reasonable
accommodation at no cost to you, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Buss, EPA Region IX, 75
Hawthorne St., San Francisco, CA
94105. By phone: (415) 947–4152 or by
email at buss.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. The State’s Submission
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted
rules?
D. What requirements does the regulation
establish?
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the
regulation?
B. Does the regulation meet the evaluation
criteria?
C. The EPA’s Recommendations To Further
Improve the Rules
D. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State’s Submission
A. What rules did the State submit?
On December 14, 2018, the California
Air Resources Board (CARB) adopted a
set of rules referred to as the Innovative
Clean Transit (ICT) regulation. On
August 13, 2019, the California Office of
Administrative Law (OAL) approved the
ICT regulation, effective October 1,
2019. On February 13, 2020, CARB
submitted the ICT regulation to the EPA
as a revision to the California SIP.1
Table 1 lists the specific sections of
Title 13, Division 3, Chapter 1, Article
4.3 of the California Code of Regulations
(CCR) that comprise the ICT regulation.
1 CARB submitted the ICT Regulation
electronically to the EPA on February 13, 2020 as
an attachment to a letter dated February 12, 2020.
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Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Proposed Rules
TABLE 1—SUBMITTED RULES
Agency
CARB
CARB
CARB
CARB
CARB
CARB
CARB
CARB
CARB
CARB
CARB
CARB
................
................
................
................
................
................
................
................
................
................
................
................
Section No. 13
CCR
Rule title
2023 .................
2023.1 ..............
2023.2 ..............
2023.3 ..............
2023.4 ..............
2023.5 ..............
2023.6 ..............
2023.7 ..............
2023.8 ..............
2023.9 ..............
2023.10 ............
2023.11 ............
Innovative Clean Transit Regulations Applicability and Scope .................
Zero-Emission Bus Requirements .............................................................
Compliance Option for Joint Zero-Emission Bus Groups .........................
Zero-Emission Bus Bonus Credits ............................................................
Provisions for Exemption of a Zero-Emission Bus Purchase ...................
Zero-Emission Mobility Option ...................................................................
Low-NOX Engine Purchase Requirements ................................................
Requirements to Use Renewable Fuels ....................................................
Reporting Requirements for Transit Agencies ..........................................
Record Keeping Requirements .................................................................
Authority to Suspend, Revoke or Modify ...................................................
Severability ................................................................................................
In addition to the Final Regulation
Order and documentation of OAL
approval, CARB’s February 13, 2020 SIP
submission includes CARB Staff Report:
Initial Statement of Reasons (August 7,
2018) and related appendices; the
Notice of Public Hearing, dated July 24,
2018, for a hearing on September 27,
2018; CARB Resolution 18–60
State
effective date
(December 14, 2018) through which
CARB adopted the ICT regulation; and
the Final Statement of Reasons (June
2019) and related appendices. On
August 13, 2019, the submission from
CARB was deemed by operation of law
to meet the completeness criteria in 40
CFR part 51, appendix V.2
On August 11, 2022, CARB
supplemented the February 13, 2020 SIP
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
10/01/2019
Submission
date
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
02/13/2020
submission.3 The August 11, 2022
supplement includes certain additional
definitions codifed in the CCR or
California Health & Safety Code
(CH&SC) that are relied upon in the ICT
regulation. The specific definitions
submitted on August 11, 2022 are listed
in table 2.
TABLE 2—SUBMITTED ADDITIONAL DEFINITIONS RELIED UPON BY THE ICT REGULATION
Agency
Title
Air Basin .................................................................................................
Untitled but defines the term ‘‘compressed natural gas (CNG)’’ ...........
Untitled but defines the term ‘‘Low-NOX engine’’ ...................................
Untitled but defines the Sonoma County portion of the North Coast
Basin.
Lake Tahoe Air Basin .............................................................................
Untitled but defines the term ‘‘Renewable hydrocarbon diesel’’ ............
Untitled but defines the term ‘‘Biomethane’’ ..........................................
Definitions ...............................................................................................
CARB
CARB
CARB
CARB
................
................
................
................
CH&SC 39012 .................................
17 CCR 95481(a)(30) ......................
13 CCR 2208(c)(18) ........................
17 CCR 60100(e) ............................
CARB
CARB
CARB
CARB
................
................
................
................
17
17
17
13
CCR
CCR
CCR
CCR
60013 ................................
95481(a)(130) ....................
95481(a)(22) ......................
2020(b) ..............................
B. Are there other versions of these
rules?
The ICT regulation replaces an earlier
CARB regulation referred to as the Fleet
Rule for Transit Agencies. CARB
originally adopted the Fleet Rule for
Transit Agencies in 2000, and amended
the rule in 2004 and 2006. The Fleet
Rule for Transit Agencies was never
submitted or approved as part of the
California SIP.
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C. What is the purpose of the submitted
rules?
Emissions of PM, including PM equal
to or less than 2.5 microns in diameter
(PM2.5) and PM equal to or less than 10
microns in diameter (PM10), contribute
2 See
CAA section 110(k)(1)(B).
Barfjani, Air Pollution Specialist, CARB,
email correspondence to Jeffrey Buss, EPA Region
9, August 11, 2022.
4 CARB, Revised Proposed 2016 State Strategy for
the State Implementation Plan, March 7, 2017,
3 Shirin
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01/01/1976
07/01/2020
10/16/2017
07/05/1978
01/30/1976
07/01/2020
07/01/2020
01/02/2010
to effects that are harmful to human
health and the environment, including
premature mortality, aggravation of
respiratory and cardiovascular disease,
decreased lung function, visibility
impairment, and damage to vegetation
and ecosystems. Additionally,
emissions of NOX contribute to the
production of ground-level ozone,
which harms human health and the
environment. Section 110(a) of the CAA
requires states to submit regulations that
control PM and NOX emissions.
The purpose of the ICT regulation is
to transition California public transit
bus fleets to zero-emission technologies
by 2040. The ICT regulation was
developed to ensure transit service
integrity and program feasibility
through this transformation. The ICT
regulation was included as one of the
regulatory measures adopted by CARB
in the 2016 State SIP Strategy to achieve
emissions reductions of NOX and PM
emissions needed to attain the National
Ambient Air Quality Standard
(NAAQS), particularly in the South
Coast and San Joaquin Valley air quality
planning areas.4 Furthermore, CARB
notes that the ICT regulation furthers
state environmental justice goals by
transitioning to clean transportation
modes in low-income and
disadvantaged communities.5
As adopted, CARB estimates that the
ICT regulation will reduce NOX and PM
emissions by approximately 7,032 and
39.4 tons, respectively, on a statewide
pages 69–71. The EPA approved the 2016 State SIP
Strategy as a revision to the California SIP at
February 12, 2019, 84 FR 3302; corrected at May 3,
2019, 84 FR 19680; and at October 1, 2019, 84 FR
52005.
5 CARB; Public Hearing to Consider the Proposed
Innovative Clean Transit Regulation, a Replacement
of the Fleet Rule for Public Agencies; Staff Report:
Initial Statement of Reasons; Date of Release:
August 7, 2018 (‘‘CARB’s ICT Staff Report’’);
chapter 7 (‘‘Environmental Justice’’).
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basis between 2020 and 2050.6 In
addition, CARB anticipates that the
Zero-Emission Bus (ZEB) technologies
deployed under the ICT regulation will
assist the future advanced technology
deployment in other heavy-duty on-road
sectors to further help achieve the
emission reduction goals identified in
the 2016 State SIP Strategy.
D. What requirements does the
regulation establish?
The ICT regulation applies to any
public transit agency that owns,
operates, leases, rents, or contracts with
another entity to operate buses in
California, but the term ‘‘transit agency’’
does not mean a correctional facility,
airport, college or university, national
park, tour bus service provider, or an
entity that provide shuttle services
solely for patrons of its organization.7
The regulation also does not apply to
school buses, vehicles on rails, or
trolleybuses even if operated by a public
transit agency and does not apply to
Caltrans, Caltrain, Amtrak, or any local
school district.8
CARB’s ICT regulation requires public
transit agencies to submit a ZEB Rollout
Plan approved by the applicable
governing board that demonstrates how
the agency plans for ZEB purchase and
infrastructure buildout, and associated
financial planning and workforce
training by certain deadlines established
in the regulation.9 The regulation also
establishes ZEB purchase requirements
that provide for an increasing
percentage of new buses 10 to be ZEBs
such that, by January 1, 2029, all new
bus purchases must be ZEBs.11
The regulation also provides for
waivers for early compliance and
provides certain compliance flexibility
through provisions allowing pooling of
resources among multiple transit
agencies, establishing options for other,
zero-emission transit services and
allowing extensions or exemptions from
ZEB purchase requirements for
circumstances outside the transit
agency’s control.12 The ICT regulation
also requires generally that, when new
conventional internal combustion
engine bus or hybrid bus purchases are
made, transit agencies must purchase
buses with low-NOX engines that meet
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6 CARB’s
ICT Staff Report, page IV–2.
CCR 2023(a)(1) and (b)(51).
8 13 CCR 2023(a)(2).
9 13 CCR 2023 and 2023.1.
10 Under the ICT regulation, the term ‘‘bus’’
means a rubber-tire vehicle designed to transport
passengers by road with gross vehicle weight rating
(GVWR) greater than 14,000 pounds. See 13 CCR
2023(b)(6).
11 13 CCR 2023.1.
12 13 CCR 2023.1, 2023.2 and 2023.4.
7 13
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certain criteria if low-NOX engines are
available for the bus type and
propulsion system type being
purchased.13 For large transit agencies,
the ICT regulation requires them to use
renewable diesel or natural gas to fuel
their buses that have not yet converted
to ZEBs.14 Finally, the ICT regulation
includes reporting and recordkeeping
requirements to ensure compliance with
the regulation.15
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the
regulation?
The EPA has evaluated the ICT
regulation against the applicable
procedural and substantive
requirements of the CAA for SIPs and
SIP revisions and has concluded that
the ICT regulation meets all of the
applicable requirements. Generally, SIPs
must include enforceable emission
limitations and other control measures,
means, or techniques, as well as
schedules and timetables for
compliance, as may be necessary to
meet the requirements of the Act [see
CAA section 110(a)(2)(A)]; must provide
necessary assurances that the state will
have adequate personnel, funding, and
authority under state law to carry out
such SIP (and is not prohibited by any
provision of federal or state law from
carrying out such SIP) [see CAA section
110(a)(2)(E)]; must be adopted by a state
after reasonable notice and public
hearing [see CAA section 110(l)], and
must not interfere with any applicable
requirement concerning attainment and
reasonable further progress, or any other
applicable requirement of the Act [see
CAA section 110(l)].16
B. Does the regulation meet the
evaluation criteria?
1. Did the State provide for reasonable
public notice and hearing prior to
adoption?
Under CAA section 110(l), SIP
revisions must be adopted by the State,
and the State must provide for
reasonable public notice and hearing
prior to adoption. In 40 CFR 51.102(d),
we specify that reasonable public notice
in this context refers to at least 30 days.
The ICT regulation was adopted by the
CARB Board on December 14, 2018,
13 13
CCR 2023.6
CCR 2023.7.
15 13 CCR 2023.8 and 2023.9.
16 CAA section 193, which prohibits any pre-1990
SIP control requirement relating to nonattainment
pollutants in nonattainment areas from being
modified unless the SIP is revised to insure
equivalent or greater emission reductions of such
air pollutants, does not apply to the ICT rgulation
because it does not represent pre-1990 SIP control
requirements.
14 13
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through Resolution 18–60 following a
public hearing held on that same day.17
Prior to adoption, CARB published
notice of a September 27, 2018 public
hearing on July 24, 2018, and provided
a 45-day comment period.18 CARB
subsequently provided public notice
and a 15-day comment period on
modifications made to the original draft
regulation that was the subject of the
September 27, 2018 hearing. The CARB
Executive Officer submitted the final
ICT rulemaking package to the
California Office of Administrative Law
(OAL) on July 3, 2019. OAL approved
the rulemaking and filed with the
California Secretary of State on August
13, 2019. The effective date under State
law is October 1, 2019. CARB submitted
the OAL-approved Final Regulation
Order to the EPA on February 13, 2020,
along with various other materials
comprising the SIP submission package,
including copies of public comments
received during the two comment
periods and CARB’s responses to the
comments.
Based on the materials provided in
the February 13, 2020 SIP submission
and summarized above, we find that
CARB has met the procedural
requirements for adoption and
submission of SIPs and SIP revisions
under CAA section 110(l) and 40 CFR
51.102.
2. Does the State have adequate legal
authority to implement the regulation?
CARB has been granted both general
and specific authority under the CH&SC
to adopt and implement these
regulations. CH&SC sections 39600
(‘‘Acts required’’) and 39601 (‘‘Adoption
of regulation; Conformance to federal
law’’) confer on CARB the general
authority and obligation to adopt
regulations and measures necessary to
execute CARB’s powers and duties
imposed by State law. CH&SC sections
43013(a) and 43018 provide broad
authority to achieve the maximum
feasible and cost-effective emission
17 CARB Resolution 18–60 (page 4) states:
‘‘WHEREAS, In March 2017, the Board adopted the
State Strategy for the State Implementation Plan,
which identifies the deployment of zero-emission
buses as a necessary component for California to
achieve established near- and long-term air quality
and climate mitigation targets (Resolution 17–7,
March 23, 2017).’’
18 The July 24, 2018 public notice (page 20) states:
‘‘If adopted by CARB, CARB plans to submit the
proposed regulatory action to the United States
Environmental Protection Agency (U.S. EPA) for
approval as a revision to the California State
Implementation Plan (SIP) required by the federal
Clean Air Act (CAA). The adopted regulatory action
would be submitted as a SIP revision because it
amends regulations intended to reduce emissions of
air pollutants in order to attain and maintain the
National Ambient Air Quality Standards
promulgated by U.S. EPA pursuant to the CAA.’’
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reductions from all mobile source
categories, including both on-road and
off-road diesel engines.
Moreover, we know of no obstacle
under Federal or State law in CARB’s
ability to implement the regulations. As
a general matter, the CAA assigns
mobile source regulation to the EPA
through title II of the Act and assigns
stationary source regulation and SIP
development responsibilities to the
states through title I of the Act. More
specifically, with respect to new motor
vehicles, CAA section 209(a) provides
that no state or any political subdivision
may adopt or attempt to enforce any
standard relating to the control of
emissions from new motor vehicles or
new motor vehicle engines. CAA section
209(b) provides that the EPA must issue
waivers to California for standards
otherwise preempted under CAA
section 209(a) if certain criteria are met.
However, in this instance, CARB is
setting forth requirements related to
transit bus purchases directed at public
transit agencies and has not adopted or
attempted to enforce a ‘‘standard’’
relating to the control of emissions from
new motor vehicles for the purposes of
CAA section 209(a) (e.g., CARB has not
set a regulatory requirement on private
fleet operator purchases within the
State).19 Consequently, the ICT
regulation is not preempted under CAA
section 209(a) and does not require an
EPA waiver under CAA section 209(b).
The ICT regulation, however, does
reduce emissions from a certain class of
public vehicles and therefore is more
stringent than the otherwise applicable
State or Federal standards.
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3. Is the regulation enforceable as
required under CAA section 110(a)(2)?
We have evaluated the enforceability
of the ICT regulation with respect to
applicability and exemptions; standard
of conduct and compliance dates; sunset
provisions; discretionary provisions;
and test methods, recordkeeping and
reporting,20 and have concluded for the
reasons given below that the regulation
is enforceable for the purposes of CAA
section 110(a)(2).
First, with respect to applicability, we
generally find that the ICT regulation is
sufficiently clear as to which entities are
subject to the requirements in the
regulation and which entities are
19 See Engine Manufacturers Ass’n v. South Coast
Air Quality Management District, 541 U.S. 246
(2004) and subsequent history at 2005 WL 1163437
(C.D. Cal. 2005) and 498 F.3d. 1031 (9th Cir. 2007).
20 These concepts are discussed in detail in an
EPA memorandum from J. Craig Potter, EPA
Assistant Administrator for Air and Radiation, et
al., titled ‘‘Review of State Implementation Plans
and Revisions for Enforceability and Legal
Sufficiency,’’ dated September 23, 1987.
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exempt.21 Second, we find that the ICT
regulation is, as a general matter,
sufficiently specific so that the persons
affected by the regulation are fairly on
notice as to what the requirements and
related compliance dates are.22 To a
large extent, we have already described
the substantive requirements and
compliance dates set forth in the ICT
regulation in section I.D of this
document. We note, however, that the
definitions set forth in the ICT
regulation cite to other sections of
California code or regulation, and thus,
the definitions in the ICT regulation
would be ambiguous for the purposes of
enforcement of the SIP unless the other
sections of California code or regulation
on which the ICT regulation relies are
submitted and approved into the SIP
along with the ICT regulation. On
August 11, 2022, CARB supplemented
the original SIP submission with
additional sections of California code or
regulation on which the ICT regulation
relies (see table 2, above) to the EPA for
SIP approval to avoid the potential
ambiguity in the ICT regulation. With
respect to compliance dates, we note
that no compliance date in the ICT
regulation extends past January 1, 2029,
which is consistent with the attainment
needs for California with respect to the
attainment deadline for the South Coast
and San Joaquin Valley ‘‘Extreme’’
nonattainment areas for the 2008 ozone
NAAQS.
Third, the ICT regulation does not
include sunset provisions. Fourth, we
note that the ICT regulation does not
contain provisions that allow for
discretion on the part of CARB’s
Executive Officer. Such ‘‘director’s
discretion’’ provisions can undermine
enforceability of a SIP regulation, and
thus prevent full approval by EPA. In
the case of the ICT regulation, the
regulation allows transit agencies to
request an exemption from the ZEB
requirement under certain specified
circumstances. Specifically, under 13
CCR 2023.4, transit agencies may
request an exemption from purchasing
ZEBs under any of five circumstances,
all of which must be outside the transit
agencies’ control. Exemptions are
allowed when:
1. a delay in bus delivery is caused by
a setback in the construction of
infrastructure needed for the ZEB;
2. available ZEBs cannot meet a
transit agency’s daily mileage needs;
3. available ZEBs do not have
adequate gradeability performance to
meet the transit agency’s daily needs for
any bus in its fleet;
21 13
22 13
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CCR 2023.1.
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4. a required ZEB type for the
applicable weight class (based on gross
vehicle weight rating (GVWR)) is
unavailable for purchase; or
5. the ZEB purchase requirements in
section 2023.1(a) cannot be met due to
financial hardship.23
In each instance, the regulation sets
forth the documentation required to
establish an exemption, and, if fulfilled,
the CARB Executive Officer must issue
the exemption, thereby avoiding
problematic ‘‘director’s discretion’’ with
respect to the issuance of exemptions by
the CARB Executive Officer. Lastly, the
ICT regulation includes recordkeeping
and reporting requirements that are
sufficient to ensure compliance with the
applicable requirements.24
4. Do the regulations interfere with
reasonable further progress (RFP) and
attainment or any other applicable
requirement of the Act?
The ICT regulation is an outgrowth of
a commital measure for further
deployment of zero-emission bus
technologies in the public transit sector
that was adopted by CARB in the 2016
State SIP Strategy. The ICT regulation
would achieve incremental emissions
reductions needed to attain the NAAQS,
particularly in the South Coast and San
Joaquin Valley air quality planning
areas. Thus, we find that the approval
of the ICT regulation is consistent with
CAA section 110(l) and would not
interfere with RFP, attainment or any
other applicable requirement of the Act.
5. Will the State have adequate
personnel and funding for the
regulations?
Chapter XIII of CARB’s ICT Staff
Report addresses economic impacts
associated with the ICT regulation,
including personnel requirements for
CARB and fiscal impacts to public
transit agencies. CARB’s economic
impacts assessment concludes that the
ICT regulation would require only one
additional person-year for developing a
reporting system and updating fleet
information prior to initial reporting in
2020, assisting transit agencies with
compliance and annual reporting,
23 Financial hardship would be granted if a fiscal
emergency is declared under a resolution by a
transit agency’s governing body following a public
hearing, a transit agency can demonstrate that it
cannot offset the incremental cost of purchasing all
available zero-emission buses when compared to
the cost of the same type of conventional bus, or
a transit agency can demonstrate that it cannot
offset the managed, net electricity cost for depot
charging battery electric buses when compared to
the fuel cost of the same type of conventional
internal combustion engine buses. 13 CCR
2023.4(c)(5)(A).
24 13 CCR 2023.8 and 2023.9.
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Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Proposed Rules
disseminating information to transit
fleets, and enforcement (including
auditing reported information, and site
visits to confirm vehicle equipment).25
As such, we find that CARB has
adequate personnel and funding for the
ICT regulation.
6. EPA’s Regulation Evaluation
Conclusion
Based on the above discussion, we
believe these regulations are consistent
with the relevant CAA requirements,
policies and guidance.
C. The EPA’s Recommendations To
Further Improve the Rules
Several of the defined terms in the
ICT regulation reference definitions set
forth in paragraphs of other CCR
sections that have been renumbered
since the ICT regulation was adopted.
The cross-references should be updated
when CARB next considers
amendments to the ICT regulation. The
specific defined terms with the outdated
CCR references include: (1) the term
‘‘compressed natural gas (CNG),’’ which
should be updated to cite 17 CCR
95481(a)(30) rather than 17 CCR
95481(a)(27); (2) the term ‘‘renewable
hydrocarbon diesel,’’ which should be
updated to cite 17 CCR 95481(a)(130)
rather than 17 CCR 95481(a)(123); and
(3) the term ‘‘biomethane,’’ which
should be updated to cite 17 CCR
95481(a)(22) rather than 17 CCR
95481(a)(20).
jspears on DSK121TN23PROD with PROPOSALS
D. Public Comment and Proposed
Action
As authorized in section 110(k)(3) of
the Act, the EPA proposes to fully
approve the submitted ICT regulation
because it fulfills all relevant
requirements. We will accept comments
from the public on this proposal until
November 14, 2022. If we take final
action to approve the submitted ICT
regulation, our final action will
incorporate the associated rules into the
federally enforceable SIP.
III. Incorporation by Reference
In this rule, the EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to incorporate by reference
the California rules listed in tables 1 and
2 and discussed in Section I of this
preamble. The EPA has made, and will
continue to make, these materials
available through https://
www.regulations.gov and at the EPA
Region IX Office (please contact the
25 CARB’s
ICT Staff Report, page VIII–28.
VerDate Sep<11>2014
17:02 Oct 13, 2022
Jkt 259001
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely proposes to approve state
law as meeting Federal requirements
and does not impose additional
requirements beyond those imposed by
state law. For that reason, this proposed
action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
62341
The Innovative Clean Transit
regulation furthers state environmental
justice goals by transitioning to clean
transportation modes in low-income
and disadvantaged communities. There
is no information in the record
inconsistent with the stated goals of
E.O. 12898 of achieving environmental
justice for people of color, low-income
populations, and indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 3, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022–21910 Filed 10–13–22; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL MARITIME COMMISSION
46 CFR Part 541
[Docket No. FMC–2022–0066]
RIN 3072–AC90
Demurrage and Detention Billing
Requirements
Federal Maritime Commission.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Federal Maritime
Commission (Commission) is seeking
public comment on a proposed rule that
requires common carriers and marine
terminal operators to include specific
minimum information on demurrage
and detention invoices and outlines
certain billing practices relevant to
appropriate timeframes for issuing
invoices, disputing charges with the
billing party, and resolving such
disputes. The proposed rule addresses
considerations identified in the Ocean
Shipping Reform Act of 2022. The
proposed rule would adopt minimum
information that common carriers must
include in a demurrage or detention
invoice; add to this list additional
information that must be included in or
with a demurrage or detention invoice;
further define prohibited practices by
clarifying which parties may be
appropriately billed for demurrage or
detention charges; and establish billing
practices that billing parties must follow
when invoicing for demurrage or
detention charges.
DATES: Submit comments on or before
December 13, 2022.
SUMMARY:
E:\FR\FM\14OCP1.SGM
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]]>Agencies
[Federal Register Volume 87, Number 198 (Friday, October 14, 2022)]
[Proposed Rules]
[Pages 62337-62341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21910]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2022-0503; FRL-9936-01-R9]
Air Plan Approval; California; Innovative Clean Transit
Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the California State Implementation Plan (SIP)
concerning particulate matter (PM) and oxides of nitrogen
(NOX) emissions from public transit buses. We are proposing
to approve State rules that regulate these emission sources under the
Clean Air Act (CAA or the Act). We are taking comments on this proposal
and plan to follow with a final action.
DATES: Comments must be received on or before November 14, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0503 at https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4152 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submission
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rules?
D. What requirements does the regulation establish?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the regulation?
B. Does the regulation meet the evaluation criteria?
C. The EPA's Recommendations To Further Improve the Rules
D. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submission
A. What rules did the State submit?
On December 14, 2018, the California Air Resources Board (CARB)
adopted a set of rules referred to as the Innovative Clean Transit
(ICT) regulation. On August 13, 2019, the California Office of
Administrative Law (OAL) approved the ICT regulation, effective October
1, 2019. On February 13, 2020, CARB submitted the ICT regulation to the
EPA as a revision to the California SIP.\1\ Table 1 lists the specific
sections of Title 13, Division 3, Chapter 1, Article 4.3 of the
California Code of Regulations (CCR) that comprise the ICT regulation.
---------------------------------------------------------------------------
\1\ CARB submitted the ICT Regulation electronically to the EPA
on February 13, 2020 as an attachment to a letter dated February 12,
2020.
[[Page 62338]]
Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
State Submission
Agency Section No. 13 CCR Rule title effective date date
----------------------------------------------------------------------------------------------------------------
CARB....................... 2023....................... Innovative Clean 10/01/2019 02/13/2020
Transit Regulations
Applicability and
Scope.
CARB....................... 2023.1..................... Zero-Emission Bus 10/01/2019 02/13/2020
Requirements.
CARB....................... 2023.2..................... Compliance Option for 10/01/2019 02/13/2020
Joint Zero-Emission
Bus Groups.
CARB....................... 2023.3..................... Zero-Emission Bus 10/01/2019 02/13/2020
Bonus Credits.
CARB....................... 2023.4..................... Provisions for 10/01/2019 02/13/2020
Exemption of a Zero-
Emission Bus Purchase.
CARB....................... 2023.5..................... Zero-Emission Mobility 10/01/2019 02/13/2020
Option.
CARB....................... 2023.6..................... Low-NOX Engine 10/01/2019 02/13/2020
Purchase Requirements.
CARB....................... 2023.7..................... Requirements to Use 10/01/2019 02/13/2020
Renewable Fuels.
CARB....................... 2023.8..................... Reporting Requirements 10/01/2019 02/13/2020
for Transit Agencies.
CARB....................... 2023.9..................... Record Keeping 10/01/2019 02/13/2020
Requirements.
CARB....................... 2023.10.................... Authority to Suspend, 10/01/2019 02/13/2020
Revoke or Modify.
CARB....................... 2023.11.................... Severability.......... 10/01/2019 02/13/2020
----------------------------------------------------------------------------------------------------------------
In addition to the Final Regulation Order and documentation of OAL
approval, CARB's February 13, 2020 SIP submission includes CARB Staff
Report: Initial Statement of Reasons (August 7, 2018) and related
appendices; the Notice of Public Hearing, dated July 24, 2018, for a
hearing on September 27, 2018; CARB Resolution 18-60 (December 14,
2018) through which CARB adopted the ICT regulation; and the Final
Statement of Reasons (June 2019) and related appendices. On August 13,
2019, the submission from CARB was deemed by operation of law to meet
the completeness criteria in 40 CFR part 51, appendix V.\2\
---------------------------------------------------------------------------
\2\ See CAA section 110(k)(1)(B).
---------------------------------------------------------------------------
On August 11, 2022, CARB supplemented the February 13, 2020 SIP
submission.\3\ The August 11, 2022 supplement includes certain
additional definitions codifed in the CCR or California Health & Safety
Code (CH&SC) that are relied upon in the ICT regulation. The specific
definitions submitted on August 11, 2022 are listed in table 2.
---------------------------------------------------------------------------
\3\ Shirin Barfjani, Air Pollution Specialist, CARB, email
correspondence to Jeffrey Buss, EPA Region 9, August 11, 2022.
Table 2--Submitted Additional Definitions Relied Upon by the ICT
Regulation
------------------------------------------------------------------------
CCR, CH&SC or State
Agency CVC section Title effective date
------------------------------------------------------------------------
CARB................. CH&SC 39012..... Air Basin...... 01/01/1976
CARB................. 17 CCR Untitled but 07/01/2020
95481(a)(30). defines the
term
``compressed
natural gas
(CNG)''.
CARB................. 13 CCR Untitled but 10/16/2017
2208(c)(18). defines the
term ``Low-NOX
engine''.
CARB................. 17 CCR 60100(e). Untitled but 07/05/1978
defines the
Sonoma County
portion of the
North Coast
Basin.
CARB................. 17 CCR 60013.... Lake Tahoe Air 01/30/1976
Basin.
CARB................. 17 CCR Untitled but 07/01/2020
95481(a)(130). defines the
term
``Renewable
hydrocarbon
diesel''.
CARB................. 17 CCR Untitled but 07/01/2020
95481(a)(22). defines the
term
``Biomethane''.
CARB................. 13 CCR 2020(b).. Definitions.... 01/02/2010
------------------------------------------------------------------------
B. Are there other versions of these rules?
The ICT regulation replaces an earlier CARB regulation referred to
as the Fleet Rule for Transit Agencies. CARB originally adopted the
Fleet Rule for Transit Agencies in 2000, and amended the rule in 2004
and 2006. The Fleet Rule for Transit Agencies was never submitted or
approved as part of the California SIP.
C. What is the purpose of the submitted rules?
Emissions of PM, including PM equal to or less than 2.5 microns in
diameter (PM2.5) and PM equal to or less than 10 microns in
diameter (PM10), contribute to effects that are harmful to
human health and the environment, including premature mortality,
aggravation of respiratory and cardiovascular disease, decreased lung
function, visibility impairment, and damage to vegetation and
ecosystems. Additionally, emissions of NOX contribute to the
production of ground-level ozone, which harms human health and the
environment. Section 110(a) of the CAA requires states to submit
regulations that control PM and NOX emissions.
The purpose of the ICT regulation is to transition California
public transit bus fleets to zero-emission technologies by 2040. The
ICT regulation was developed to ensure transit service integrity and
program feasibility through this transformation. The ICT regulation was
included as one of the regulatory measures adopted by CARB in the 2016
State SIP Strategy to achieve emissions reductions of NOX
and PM emissions needed to attain the National Ambient Air Quality
Standard (NAAQS), particularly in the South Coast and San Joaquin
Valley air quality planning areas.\4\ Furthermore, CARB notes that the
ICT regulation furthers state environmental justice goals by
transitioning to clean transportation modes in low-income and
disadvantaged communities.\5\
---------------------------------------------------------------------------
\4\ CARB, Revised Proposed 2016 State Strategy for the State
Implementation Plan, March 7, 2017, pages 69-71. The EPA approved
the 2016 State SIP Strategy as a revision to the California SIP at
February 12, 2019, 84 FR 3302; corrected at May 3, 2019, 84 FR
19680; and at October 1, 2019, 84 FR 52005.
\5\ CARB; Public Hearing to Consider the Proposed Innovative
Clean Transit Regulation, a Replacement of the Fleet Rule for Public
Agencies; Staff Report: Initial Statement of Reasons; Date of
Release: August 7, 2018 (``CARB's ICT Staff Report''); chapter 7
(``Environmental Justice'').
---------------------------------------------------------------------------
As adopted, CARB estimates that the ICT regulation will reduce
NOX and PM emissions by approximately 7,032 and 39.4 tons,
respectively, on a statewide
[[Page 62339]]
basis between 2020 and 2050.\6\ In addition, CARB anticipates that the
Zero-Emission Bus (ZEB) technologies deployed under the ICT regulation
will assist the future advanced technology deployment in other heavy-
duty on-road sectors to further help achieve the emission reduction
goals identified in the 2016 State SIP Strategy.
---------------------------------------------------------------------------
\6\ CARB's ICT Staff Report, page IV-2.
---------------------------------------------------------------------------
D. What requirements does the regulation establish?
The ICT regulation applies to any public transit agency that owns,
operates, leases, rents, or contracts with another entity to operate
buses in California, but the term ``transit agency'' does not mean a
correctional facility, airport, college or university, national park,
tour bus service provider, or an entity that provide shuttle services
solely for patrons of its organization.\7\ The regulation also does not
apply to school buses, vehicles on rails, or trolleybuses even if
operated by a public transit agency and does not apply to Caltrans,
Caltrain, Amtrak, or any local school district.\8\
---------------------------------------------------------------------------
\7\ 13 CCR 2023(a)(1) and (b)(51).
\8\ 13 CCR 2023(a)(2).
---------------------------------------------------------------------------
CARB's ICT regulation requires public transit agencies to submit a
ZEB Rollout Plan approved by the applicable governing board that
demonstrates how the agency plans for ZEB purchase and infrastructure
buildout, and associated financial planning and workforce training by
certain deadlines established in the regulation.\9\ The regulation also
establishes ZEB purchase requirements that provide for an increasing
percentage of new buses \10\ to be ZEBs such that, by January 1, 2029,
all new bus purchases must be ZEBs.\11\
---------------------------------------------------------------------------
\9\ 13 CCR 2023 and 2023.1.
\10\ Under the ICT regulation, the term ``bus'' means a rubber-
tire vehicle designed to transport passengers by road with gross
vehicle weight rating (GVWR) greater than 14,000 pounds. See 13 CCR
2023(b)(6).
\11\ 13 CCR 2023.1.
---------------------------------------------------------------------------
The regulation also provides for waivers for early compliance and
provides certain compliance flexibility through provisions allowing
pooling of resources among multiple transit agencies, establishing
options for other, zero-emission transit services and allowing
extensions or exemptions from ZEB purchase requirements for
circumstances outside the transit agency's control.\12\ The ICT
regulation also requires generally that, when new conventional internal
combustion engine bus or hybrid bus purchases are made, transit
agencies must purchase buses with low-NOX engines that meet
certain criteria if low-NOX engines are available for the
bus type and propulsion system type being purchased.\13\ For large
transit agencies, the ICT regulation requires them to use renewable
diesel or natural gas to fuel their buses that have not yet converted
to ZEBs.\14\ Finally, the ICT regulation includes reporting and
recordkeeping requirements to ensure compliance with the
regulation.\15\
---------------------------------------------------------------------------
\12\ 13 CCR 2023.1, 2023.2 and 2023.4.
\13\ 13 CCR 2023.6
\14\ 13 CCR 2023.7.
\15\ 13 CCR 2023.8 and 2023.9.
---------------------------------------------------------------------------
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the regulation?
The EPA has evaluated the ICT regulation against the applicable
procedural and substantive requirements of the CAA for SIPs and SIP
revisions and has concluded that the ICT regulation meets all of the
applicable requirements. Generally, SIPs must include enforceable
emission limitations and other control measures, means, or techniques,
as well as schedules and timetables for compliance, as may be necessary
to meet the requirements of the Act [see CAA section 110(a)(2)(A)];
must provide necessary assurances that the state will have adequate
personnel, funding, and authority under state law to carry out such SIP
(and is not prohibited by any provision of federal or state law from
carrying out such SIP) [see CAA section 110(a)(2)(E)]; must be adopted
by a state after reasonable notice and public hearing [see CAA section
110(l)], and must not interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable requirement of the Act [see CAA section 110(l)].\16\
---------------------------------------------------------------------------
\16\ CAA section 193, which prohibits any pre-1990 SIP control
requirement relating to nonattainment pollutants in nonattainment
areas from being modified unless the SIP is revised to insure
equivalent or greater emission reductions of such air pollutants,
does not apply to the ICT rgulation because it does not represent
pre-1990 SIP control requirements.
---------------------------------------------------------------------------
B. Does the regulation meet the evaluation criteria?
1. Did the State provide for reasonable public notice and hearing prior
to adoption?
Under CAA section 110(l), SIP revisions must be adopted by the
State, and the State must provide for reasonable public notice and
hearing prior to adoption. In 40 CFR 51.102(d), we specify that
reasonable public notice in this context refers to at least 30 days.
The ICT regulation was adopted by the CARB Board on December 14, 2018,
through Resolution 18-60 following a public hearing held on that same
day.\17\ Prior to adoption, CARB published notice of a September 27,
2018 public hearing on July 24, 2018, and provided a 45-day comment
period.\18\ CARB subsequently provided public notice and a 15-day
comment period on modifications made to the original draft regulation
that was the subject of the September 27, 2018 hearing. The CARB
Executive Officer submitted the final ICT rulemaking package to the
California Office of Administrative Law (OAL) on July 3, 2019. OAL
approved the rulemaking and filed with the California Secretary of
State on August 13, 2019. The effective date under State law is October
1, 2019. CARB submitted the OAL-approved Final Regulation Order to the
EPA on February 13, 2020, along with various other materials comprising
the SIP submission package, including copies of public comments
received during the two comment periods and CARB's responses to the
comments.
---------------------------------------------------------------------------
\17\ CARB Resolution 18-60 (page 4) states: ``WHEREAS, In March
2017, the Board adopted the State Strategy for the State
Implementation Plan, which identifies the deployment of zero-
emission buses as a necessary component for California to achieve
established near- and long-term air quality and climate mitigation
targets (Resolution 17-7, March 23, 2017).''
\18\ The July 24, 2018 public notice (page 20) states: ``If
adopted by CARB, CARB plans to submit the proposed regulatory action
to the United States Environmental Protection Agency (U.S. EPA) for
approval as a revision to the California State Implementation Plan
(SIP) required by the federal Clean Air Act (CAA). The adopted
regulatory action would be submitted as a SIP revision because it
amends regulations intended to reduce emissions of air pollutants in
order to attain and maintain the National Ambient Air Quality
Standards promulgated by U.S. EPA pursuant to the CAA.''
---------------------------------------------------------------------------
Based on the materials provided in the February 13, 2020 SIP
submission and summarized above, we find that CARB has met the
procedural requirements for adoption and submission of SIPs and SIP
revisions under CAA section 110(l) and 40 CFR 51.102.
2. Does the State have adequate legal authority to implement the
regulation?
CARB has been granted both general and specific authority under the
CH&SC to adopt and implement these regulations. CH&SC sections 39600
(``Acts required'') and 39601 (``Adoption of regulation; Conformance to
federal law'') confer on CARB the general authority and obligation to
adopt regulations and measures necessary to execute CARB's powers and
duties imposed by State law. CH&SC sections 43013(a) and 43018 provide
broad authority to achieve the maximum feasible and cost-effective
emission
[[Page 62340]]
reductions from all mobile source categories, including both on-road
and off-road diesel engines.
Moreover, we know of no obstacle under Federal or State law in
CARB's ability to implement the regulations. As a general matter, the
CAA assigns mobile source regulation to the EPA through title II of the
Act and assigns stationary source regulation and SIP development
responsibilities to the states through title I of the Act. More
specifically, with respect to new motor vehicles, CAA section 209(a)
provides that no state or any political subdivision may adopt or
attempt to enforce any standard relating to the control of emissions
from new motor vehicles or new motor vehicle engines. CAA section
209(b) provides that the EPA must issue waivers to California for
standards otherwise preempted under CAA section 209(a) if certain
criteria are met. However, in this instance, CARB is setting forth
requirements related to transit bus purchases directed at public
transit agencies and has not adopted or attempted to enforce a
``standard'' relating to the control of emissions from new motor
vehicles for the purposes of CAA section 209(a) (e.g., CARB has not set
a regulatory requirement on private fleet operator purchases within the
State).\19\ Consequently, the ICT regulation is not preempted under CAA
section 209(a) and does not require an EPA waiver under CAA section
209(b). The ICT regulation, however, does reduce emissions from a
certain class of public vehicles and therefore is more stringent than
the otherwise applicable State or Federal standards.
---------------------------------------------------------------------------
\19\ See Engine Manufacturers Ass'n v. South Coast Air Quality
Management District, 541 U.S. 246 (2004) and subsequent history at
2005 WL 1163437 (C.D. Cal. 2005) and 498 F.3d. 1031 (9th Cir. 2007).
---------------------------------------------------------------------------
3. Is the regulation enforceable as required under CAA section
110(a)(2)?
We have evaluated the enforceability of the ICT regulation with
respect to applicability and exemptions; standard of conduct and
compliance dates; sunset provisions; discretionary provisions; and test
methods, recordkeeping and reporting,\20\ and have concluded for the
reasons given below that the regulation is enforceable for the purposes
of CAA section 110(a)(2).
---------------------------------------------------------------------------
\20\ These concepts are discussed in detail in an EPA memorandum
from J. Craig Potter, EPA Assistant Administrator for Air and
Radiation, et al., titled ``Review of State Implementation Plans and
Revisions for Enforceability and Legal Sufficiency,'' dated
September 23, 1987.
---------------------------------------------------------------------------
First, with respect to applicability, we generally find that the
ICT regulation is sufficiently clear as to which entities are subject
to the requirements in the regulation and which entities are
exempt.\21\ Second, we find that the ICT regulation is, as a general
matter, sufficiently specific so that the persons affected by the
regulation are fairly on notice as to what the requirements and related
compliance dates are.\22\ To a large extent, we have already described
the substantive requirements and compliance dates set forth in the ICT
regulation in section I.D of this document. We note, however, that the
definitions set forth in the ICT regulation cite to other sections of
California code or regulation, and thus, the definitions in the ICT
regulation would be ambiguous for the purposes of enforcement of the
SIP unless the other sections of California code or regulation on which
the ICT regulation relies are submitted and approved into the SIP along
with the ICT regulation. On August 11, 2022, CARB supplemented the
original SIP submission with additional sections of California code or
regulation on which the ICT regulation relies (see table 2, above) to
the EPA for SIP approval to avoid the potential ambiguity in the ICT
regulation. With respect to compliance dates, we note that no
compliance date in the ICT regulation extends past January 1, 2029,
which is consistent with the attainment needs for California with
respect to the attainment deadline for the South Coast and San Joaquin
Valley ``Extreme'' nonattainment areas for the 2008 ozone NAAQS.
---------------------------------------------------------------------------
\21\ 13 CCR 2023.
\22\ 13 CCR 2023.1.
---------------------------------------------------------------------------
Third, the ICT regulation does not include sunset provisions.
Fourth, we note that the ICT regulation does not contain provisions
that allow for discretion on the part of CARB's Executive Officer. Such
``director's discretion'' provisions can undermine enforceability of a
SIP regulation, and thus prevent full approval by EPA. In the case of
the ICT regulation, the regulation allows transit agencies to request
an exemption from the ZEB requirement under certain specified
circumstances. Specifically, under 13 CCR 2023.4, transit agencies may
request an exemption from purchasing ZEBs under any of five
circumstances, all of which must be outside the transit agencies'
control. Exemptions are allowed when:
1. a delay in bus delivery is caused by a setback in the
construction of infrastructure needed for the ZEB;
2. available ZEBs cannot meet a transit agency's daily mileage
needs;
3. available ZEBs do not have adequate gradeability performance to
meet the transit agency's daily needs for any bus in its fleet;
4. a required ZEB type for the applicable weight class (based on
gross vehicle weight rating (GVWR)) is unavailable for purchase; or
5. the ZEB purchase requirements in section 2023.1(a) cannot be met
due to financial hardship.\23\
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\23\ Financial hardship would be granted if a fiscal emergency
is declared under a resolution by a transit agency's governing body
following a public hearing, a transit agency can demonstrate that it
cannot offset the incremental cost of purchasing all available zero-
emission buses when compared to the cost of the same type of
conventional bus, or a transit agency can demonstrate that it cannot
offset the managed, net electricity cost for depot charging battery
electric buses when compared to the fuel cost of the same type of
conventional internal combustion engine buses. 13 CCR
2023.4(c)(5)(A).
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In each instance, the regulation sets forth the documentation
required to establish an exemption, and, if fulfilled, the CARB
Executive Officer must issue the exemption, thereby avoiding
problematic ``director's discretion'' with respect to the issuance of
exemptions by the CARB Executive Officer. Lastly, the ICT regulation
includes recordkeeping and reporting requirements that are sufficient
to ensure compliance with the applicable requirements.\24\
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\24\ 13 CCR 2023.8 and 2023.9.
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4. Do the regulations interfere with reasonable further progress (RFP)
and attainment or any other applicable requirement of the Act?
The ICT regulation is an outgrowth of a commital measure for
further deployment of zero-emission bus technologies in the public
transit sector that was adopted by CARB in the 2016 State SIP Strategy.
The ICT regulation would achieve incremental emissions reductions
needed to attain the NAAQS, particularly in the South Coast and San
Joaquin Valley air quality planning areas. Thus, we find that the
approval of the ICT regulation is consistent with CAA section 110(l)
and would not interfere with RFP, attainment or any other applicable
requirement of the Act.
5. Will the State have adequate personnel and funding for the
regulations?
Chapter XIII of CARB's ICT Staff Report addresses economic impacts
associated with the ICT regulation, including personnel requirements
for CARB and fiscal impacts to public transit agencies. CARB's economic
impacts assessment concludes that the ICT regulation would require only
one additional person-year for developing a reporting system and
updating fleet information prior to initial reporting in 2020,
assisting transit agencies with compliance and annual reporting,
[[Page 62341]]
disseminating information to transit fleets, and enforcement (including
auditing reported information, and site visits to confirm vehicle
equipment).\25\ As such, we find that CARB has adequate personnel and
funding for the ICT regulation.
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\25\ CARB's ICT Staff Report, page VIII-28.
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6. EPA's Regulation Evaluation Conclusion
Based on the above discussion, we believe these regulations are
consistent with the relevant CAA requirements, policies and guidance.
C. The EPA's Recommendations To Further Improve the Rules
Several of the defined terms in the ICT regulation reference
definitions set forth in paragraphs of other CCR sections that have
been renumbered since the ICT regulation was adopted. The cross-
references should be updated when CARB next considers amendments to the
ICT regulation. The specific defined terms with the outdated CCR
references include: (1) the term ``compressed natural gas (CNG),''
which should be updated to cite 17 CCR 95481(a)(30) rather than 17 CCR
95481(a)(27); (2) the term ``renewable hydrocarbon diesel,'' which
should be updated to cite 17 CCR 95481(a)(130) rather than 17 CCR
95481(a)(123); and (3) the term ``biomethane,'' which should be updated
to cite 17 CCR 95481(a)(22) rather than 17 CCR 95481(a)(20).
D. Public Comment and Proposed Action
As authorized in section 110(k)(3) of the Act, the EPA proposes to
fully approve the submitted ICT regulation because it fulfills all
relevant requirements. We will accept comments from the public on this
proposal until November 14, 2022. If we take final action to approve
the submitted ICT regulation, our final action will incorporate the
associated rules into the federally enforceable SIP.
III. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the California rules listed in tables 1 and 2 and discussed
in Section I of this preamble. The EPA has made, and will continue to
make, these materials available through https://www.regulations.gov and
at the EPA Region IX Office (please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the proposed rule does not have tribal implications and
will not impose substantial direct costs on tribal governments or
preempt tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
The Innovative Clean Transit regulation furthers state
environmental justice goals by transitioning to clean transportation
modes in low-income and disadvantaged communities. There is no
information in the record inconsistent with the stated goals of E.O.
12898 of achieving environmental justice for people of color, low-
income populations, and indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 3, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-21910 Filed 10-13-22; 8:45 am]
BILLING CODE 6560-50-P
