[Federal Register Volume 86, Number 77 (Friday, April 23, 2021)]
[Notices]
[Pages 21784-21787]
[FR Doc No: 2021-08450]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0098; Notice 1]

BMW of North America, LLC, Receipt of Petition for Decision of
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Receipt of petition.

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SUMMARY: BMW of North America, LLC (BMW), a subsidiary of BMW AG,
Munich, Germany, has determined that certain (MY) 2019-2012; BMW and
2020-2021 Toyota motor vehicles do not fully comply with Federal Motor
Vehicle Safety Standard (FMVSS) No. 104, Windshield Wiping and Washing
Systems. BMW filed a noncompliance report dated September 11, 2020. BMW
subsequently petitioned NHTSA on October 9, 2020, and submitted a
supplement to the petition on February 23, 2021, for a decision that
the subject noncompliance is inconsequential as it relates to motor
vehicle safety. This notice announces receipt of BMW's petition.

DATES: Send comments on or before May 24, 2021.

ADDRESSES: Interested persons are invited to submit written data,
views, and arguments on this petition. Comments must refer to the
docket and notice number cited in the title of this notice and
submitted by any of the following methods:
     Mail: Send comments by mail addressed to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE, Washington, DC
20590.
     Hand Delivery: Deliver comments by hand to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE, Washington, DC
20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m.
except for Federal holidays.
     Electronically: Submit comments electronically by logging
onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Follow the online instructions for submitting
comments.
     Comments may also be faxed to<PHONE_NUMBER>.
    Comments must be written in the English language, and be no greater
than 15 pages in length, although there is no limit to the length of
necessary attachments to the comments. If comments are submitted in
hard copy form, please ensure that two copies are provided. If you wish
to receive confirmation that comments you have submitted by mail were
received, please enclose a stamped, self-addressed postcard with the
comments. Note that all comments received will be posted without change
to https://www.regulations.gov, including any personal information
provided.
    All comments and supporting materials received before the close of
business on the closing date indicated above will be filed in the
docket and will be considered. All comments and supporting materials
received after the closing date will also be filed and will be
considered to the fullest extent possible.

    When the petition is granted or denied, notice of the decision will
also be published in the Federal Register pursuant to the authority
indicated at the end of this notice.
    All comments, background documentation, and supporting materials
submitted to the docket may be viewed by anyone at the address and
times given above. The documents may also be viewed on the internet at
https://www.regulations.gov by following the online instructions for
accessing the docket. The docket ID number for this petition is shown
in the heading of this notice.
    DOT's complete Privacy Act Statement is available for review in a
Federal Register notice published on April 11, 2000 (65 FR 19477-78).

SUPPLEMENTARY INFORMATION:
    I. Overview: BMW has determined that certain (MY) 2019-2012;2021
BMW and 2020-2021 Toyota motor vehicles do not fully comply with the
requirements of paragraphs S<IP_ADDRESS> and S<IP_ADDRESS> of FMVSS No. 104,
Windshield Wiping and Washing Systems (49 CFR 571.104).
    BMW filed a noncompliance report dated September 11, 2020, pursuant
to 49 CFR part 573, Defect and Noncompliance Responsibility and
Reports. BMW subsequently petitioned NHTSA on October 9, 2020, and
submitted a supplement to the petition on February 23, 2021, for an
exemption from the notification and remedy requirements of 49 U.S.C.
Chapter 301 on the basis that this noncompliance is inconsequential as
it relates to motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and
30120(h) and 49 CFR part 556, Exemption for Inconsequential Defect or
Noncompliance.
    This notice of receipt of BMW's petition is published under 49
U.S.C. 30118 and 30120 and does not represent any Agency decision or
other exercise of judgment concerning the merits of the petition.
    II. Vehicles Involved: Approximately 244,433 of the following MY
2019-2021 Toyota and BMW motor vehicles, manufactured between February
9, 2018, and August 4, 2020, are potentially involved:

 MY 2020-2012;2021 Toyota Supra
 MY 2020-2012;2021 BMW 2 Series Gran Coupe (228i, 228i xDrive,
M235i xDrive)
 MY 2019-2012;2021 BMW 8 Series Convertible (840i, 840i xDrive,
M850i xDrive, M8)
 MY 2019-2012;2021 BMW 8 Series Coupe (840i, 840i xDrive, M850i
xDrive M8)
 MY 2020-2012;2021 BMW 8 Series Gran Coupe (840i, 840i xDrive,
M850i xDrive, M8)
 MY 2019-2012;2021 BMW X5 sDrive40i, X5 xDrivex40i, X5
xDrive50i, X5 M50i, X5M
 MY 2021 BMW X5 xDrive45e
 MY 2020-2012;2021 BMW X6 sDrive40i, X6 xDrive40i, X6 M50i, X6M
 MY 2019-2012;2021 BMW X7 xDrive40i, X7 xDrive50i, X7 M50i
 MY 2019-2012;2021 BMW 330i, 330i xDrive, M340i
 MY 2021 BMW 330e, 330e xDrive
 MY 2021 BMW 4 Series Coupe (430i, 430i xDrive, M440i xDrive)
 MY 2021 BMW 4 Series Convertible (430i, M440i)
 MY 2019-2012;2021 BMW Z4 SDrive30i, Z4M40i

    III. Noncompliance: BMW explains that the noncompliance is due to a
coding parameter issue, where the windshield wiper frequency decreases
when the vehicle is at rest and in brief intervals when the vehicle
accelerates from rest and therefore, does not meet the requirements set
forth in paragraph S<IP_ADDRESS> and S<IP_ADDRESS> of FMVSS No. 104.
Specifically, when the vehicle speed is 0 km/h, or when accelerating
after a stop up to a vehicle speed of 4 km/h (approximately 2.5 mph),
the wiper speed decreases.
    IV. Rule Requirements: Paragraph S<IP_ADDRESS> and S<IP_ADDRESS> of FMVSS No.
104 include the requirements relevant to this petition. One frequency
or speed shall be at least 45 cycles per minute regardless of engine
load and engine speed. Regardless of engine speed and engine load, the
highest and one lower frequency or speed shall differ by at least 15
cycles per minute. Such lower frequency or speed shall be at least 20
cycles per minute regardless of engine speed and engine load.
    V. Summary of BMW's Petition: The following views and arguments
presented in this section, ``V. Summary of BMW's Petition,'' are the
views and arguments provided by BMW. They have not been evaluated by
the Agency and do not reflect the views of the Agency. BMW describes
the subject noncompliance and contends that the noncompliance is
inconsequential as it relates to motor vehicle safety.
    In support of its petition, BMW offers the following reasoning:
    1. Wiper System Design/Functionality: BMW states that the subject
vehicles are equipped with a wiper system that contains a driver-
selectable setting/mode Low, a driver-selectable setting/mode High, a
driver-selectable setting/mode Auto (Rain Sensor), and a non-selectable
pre-programmed setting/mode that BMW refers to as Standstill Mode
(``Standstill''). The system function is described below:
    a. Driver Selects Low Mode: If a driver selects the wiper frequency
mode Low, then wiper frequency while driving is larger than 40 cycles/
min and is model dependent as noted further in the petition. When the
vehicle comes to rest, e.g., at a stoplight, then the frequency
decreases. The decreased frequency is also present in the brief period
of time when the vehicle accelerates from 0 mph to 2.5 mph. This
decreased frequency is the frequency of the Standstill mode and is due
to a pre-programmed comfort function described further below. The wiper
frequency quickly and automatically returns to its selected mode, in
this case, Low, as soon as the vehicle reaches 2.5mph.
    b. Driver Selects High Mode: If a driver selects wiper frequency
High mode, then wiper frequency while driving is larger than 56 cycles/
min and is model dependent as noted further in the petition. When the
vehicle comes to rest, e.g., at a stoplight, then the frequency
decreases. The decreased frequency is also present in the brief period
of time when the vehicle accelerates from 0 mph to 2.5 mph. The
decreased frequency is the frequency of the Low setting/mode and is due
to the pre-programmed comfort function described further below. The
wiper frequency quickly and automatically returns to its selected mode,
in this case, High, as soon as the vehicle reaches 2.5 mph.
    c. Auto (Rain Sensor) Mode: If the driver selects Auto (Rain
Sensor) mode, then wiper frequency while driving is a function of the
amount of rain detected on the windshield by the rain sensor. Depending
upon the amount of rain, the system will provide an appropriate wiper
frequency up to the maximum wiper system frequency, which is larger
than the FMVSS No. 104 S<IP_ADDRESS> requirement of 45 cycles/min.
    d. Comfort Function: The decrease in wiper frequency when the
vehicle is at rest is a ``comfort function'' and was introduced
because, at vehicle rest, the amount of water on the windshield
compared to the amount of water on the windshield on a moving vehicle
is significantly less. The comfort function was introduced to allow the
driver to focus on the driving task and surroundings, and not be
distracted (or annoyed) by a wiper system in which the higher frequency
(when the vehicle was moving) is not needed when the vehicle is at
rest. At vehicle rest (and during acceleration from 0 mph to 2.5 mph),
the frequency is decreased briefly

from either High to Low, or from Low to Standstill, and then quickly
and automatically increases again to the prior driver-selected
frequency when the vehicle reaches 2.5 mph.
    e. Driver Can Increase Wiper Frequency While Vehicle is at Rest:
The driver can also, while the vehicle is at rest, increase the wiper
frequency.
    If the driver had selected wiper frequency mode Low, then when the
vehicle comes to rest, the frequency will decrease to Standstill. In
this case, if the driver perceives a need to increase the frequency
while the vehicle is momentarily at rest, the driver can quickly and
easily increase the frequency by moving the wiper arm/control upward.
The wiper frequency will increase from Standstill to High. When the
vehicle accelerates, the frequency will remain at High. If desired, the
driver can then decrease the frequency to Low again.
    If the driver had selected wiper frequency mode High, then when the
vehicle comes to rest, the frequency will decrease to Low. In this
case, if the driver perceives a need to increase the frequency while
the vehicle is momentarily at rest, the driver can quickly and easily
increase the frequency by moving the wiper arm/control first downward
and then upward. The wiper frequency will increase from Low to High.
When the vehicle accelerates, the frequency will remain at High.
    2. Test Results: BMW tested the vehicles and the test results are
contained in Table 1 of the petition.
    In this petition, although there are more than five vehicle models
potentially affected, 5 wiper systems account for the systems installed
across all vehicle models. In some cases, only one vehicle model was
tested for a given wiper system, such as the 8 Series Gran Coupe,
whereas, in some cases, more than one vehicle model was tested for a
given wiper system, such as the X5 SAV and X6 SAC, and also the Z4 and
Supra.
    Entries in the table for the 2 Series, 3 Series, and 4 Series
suggest that these vehicles comply with FMVSS No. 104 Sections <IP_ADDRESS>
and <IP_ADDRESS>. However, due to wiper system tolerances, a slight or
marginal noncomplying condition could occur.
    The wiper frequencies (cycles/min) in Table 1 of the petition are
based upon actual measurements of wiper movement on the subject
vehicles during a three-minute time period and then adjusted for a one-
minute time period to denote wiper frequency in units of cycles/min. To
assess the accuracy of the three-minute count (and the cycles/minute
equivalency), a control was used in which a time period was measured
for a wiper frequency consisting of 10 wipe cycles. Using this control,
wiper frequency in cycles/min was calculated and then assessed against
the actual measured three-minute count (adjusted to the equivalent
frequency for a one-minute time period) as a check.
    As noted earlier, if the driver selected wiper frequency High, then
due to the comfort function, at vehicle rest (and between 0 mph and 2.5
mph), wiper frequency changes to Low. The ``High @ . . .'' column
indicates that some models have a reduced wiper frequency of either 41
cycles/min or 42 cycles/min.
    Similarly, if the driver selected wiper frequency Low, then due to
the comfort function, at vehicle rest (and between 0 mph and 2.5 mph),
wiper frequency changes to Standstill. The ``Low @ . . .'' column
indicates that the Z4 and Supra have a reduced wiper frequency of 19.8
cycles/min.
    3. Wiper Frequency Comparisons
    a. Wiper Frequency High: FMVSS No. 104 Section <IP_ADDRESS> requires a
minimum wiper frequency of 45 cycles/min. In some vehicle models, the
frequency is 41 cycles/min. A wiper frequency of 45 cycles/min equates
to a single wipe cycle of approximately 1.33 seconds. A wiper frequency
of 41 cycles/min equates to a single wipe cycle of 1.46 seconds. The
difference is approximately 0.13 seconds and is unlikely to affect
driver visibility as explained further below in the section comparing a
stationary vehicle with a moving vehicle regarding the amount of water
on the windshield.
    b. Wiper Frequency Low: FMVSS 104 Section <IP_ADDRESS> requires a
minimum wiper frequency of 20 cycles/min. In some vehicle models, the
frequency is 19.8 cycles/min. A wiper frequency of 20 cycles/min
equates to a single wipe cycle of approximately 3.00 seconds. A wiper
frequency of 19.8 cycles/min equates to a single wipe cycle of 3.03
seconds. The difference is approximately 0.03 seconds and is extremely
unlikely to affect driver visibility as explained further below in the
section comparing a stationary vehicle with a moving vehicle regarding
the amount of water on the windshield.
    4. Vehicle Travels Very Small Distance When Accelerating from 0 mph
to 2.5 mph:
    In the brief interval during vehicle acceleration from 0 mph to 2.5
mph, an average vehicle travels only a small amount, approximately 1
ft. and, at that point (distance), the driver-selected wiper frequency,
i.e., either Low or High, is quickly and automatically re-established.
    5. Rain Volume Comparison Between a Vehicle at Rest and a Moving
Vehicle:
    In a given period of time, the volume of water on the windshield
while the vehicle is at rest is significantly less than the volume of
water on the windshield while the vehicle is moving, for example at
city or highway speeds. For example, the amount of water on the
windshield while the vehicle is at rest is approximately 50% less than
the amount of water on the windshield when driving at approximately 25
mph. Therefore, if wiper frequencies of 20 cycles/min and 45 cycles/min
are deemed to be sufficient when driving then, when the vehicle is at
rest, wiper frequencies of 19.8 cycles/min and 41 cycles/min are
sufficient for an overview of the traffic and roadway conditions. As
noted earlier, there is only a 0.13 second difference in time for a
single wipe cycle between the required 45 cycles/min and the 41 cycles/
min condition, and only a 0.03 second difference in time for a single
wipe cycle between the required 20 cycles/min and the 19.8 cycles/min
condition.
    For a given rainfall velocity, driver visibility while the vehicle
is at rest with this slight or marginal noncompliance is greater than
driver visibility while the vehicle is moving with a compliant system,
especially when the vehicle is moving at city and highway speeds.
    Another perspective involves determining an equivalent condition
between a vehicle at rest containing this slight noncompliance and a
moving vehicle that is compliant. A vehicle at rest with this slight
noncompliance, i.e., with a wiper frequency of 41 cycles/min (instead
of 45 cycles/min) has a reduced wiper frequency and, therefore, is
slightly less efficient in removing the rain from the windshield. An
equivalent condition would result in a vehicle velocity of
approximately 2.3mph. Therefore, a vehicle containing this slight
noncompliance at rest can be considered to be equivalent to a compliant
vehicle at 2.3 mph. Moreover, this pertains to the High wiper frequency
mode. If the Low wiper frequency mode is selected, the equivalent
vehicle velocity is 0.2 mph.
    Driver visibility, while the vehicle is at rest with this slight or
marginal noncompliance, is greater than driver visibility while the
vehicle is moving with a compliant system, especially when the vehicle
is moving at city and highway speeds.
    6. The Wiper System Does Not Decrease During Vehicle Deceleration:

    The wiper system functionality on the vehicles that are the subject
of this petition is such that wiper frequency does not decrease during
vehicle deceleration to 0 mph. Therefore, the slight or marginal
noncompliance does not exist during vehicle deceleration, including the
small period of time when the vehicle is coming to rest, e.g.,
approaching a stoplight. In those circumstances, there could be a
vehicle already at the stoplight or a pedestrian in the crosswalk. In
these instances, the vehicles that are the subject of this petition are
fully compliant. BMW contends that the affected vehicles comply with
all other applicable provisions of FMVSS No. 104. BMW says that the
wiper system is compliant in the vast majority of driving situations/
modes, especially when wipers are needed most, i.e., while driving when
the wipers are selected by the driver to be in either ``High'' or
``Low'' setting/mode. Any potential non-compliance only occurs when the
vehicle is at rest, or in the very brief time period when accelerating
from 0 mph to 2.5 mph.
    7. SAE J903 (Passenger Car Windshield Wiper Systems):
    BMW says that it has reviewed the most recent release of SAE J903
and that it would appear that based upon a review of ``currently
available engineering data'' by the technical expert group responsible
for ongoing releases of SAE J903, that the currently-accepted minimum
performance requirement is 10 cycles/min. As noted in its petition,
under certain limited circumstances BMW's wiper system frequencies
(cycles/min) are at approximately 41 or 42 instead of 45, or at 19.8
instead of 20 and, in all of these conditions, all frequencies are
well-above a wiper frequency rate of 10 cycles/min. Therefore, it would
appear, according to the current version of SAE J903 that these wiper
frequency rates are also safe.
    8. Field Experience:
    BMW affirms that they have not received any complaints from vehicle
owners and are not aware of any accidents or injuries that have
occurred as a result of this issue. Toyota is not aware of any
accidents or injuries and has no field reports or claims relating to
this issue in Supra vehicles.
    9. Vehicle Production:
    BMW says that vehicle production has been corrected to conform to
FMVSS No. 104 Sections <IP_ADDRESS> and <IP_ADDRESS>.
    BMW concludes that the subject noncompliance is inconsequential as
it relates to motor vehicle safety and that its petition to be exempted
from providing notification of the noncompliance, as required by 49
U.S.C. 30118, and a remedy for the noncompliance, as required by 49
U.S.C. 30120, should be granted.
    On February 23, 2021, BMW submitted a supplement to its petition
pertaining to a study created and conducted by BMW's Human-Factor's
group in conjunction with the technical development group responsible
for wiper systems. BMW states that the objective of this study was to
evaluate two different wiping speeds (41 rmp and 45 rpm) in two
identical vehicles and their influence on the recognizability and
legibility of traffic signs using an experimental setup. During the
standardized test, a rain simulation was used to create comparable
visibility conditions. The participants had to read out different
traffic signs to an experimenter and evaluate their recognizability
while sitting in the vehicle with the wipers on. Steady rain conditions
were simulated by applying water to the windshield. BMW contends that
there was no statistically significant difference in the self-reported
difficulty of reading the traffic signs, and there was no difference in
the recognition rate of the signs (i.e., speed limits and additional
texts). There was also no difference in the satisfaction with the
wiping performance.
    BMW's complete petition and all supporting documents, including
details of the study conducted by BMW, are available by logging onto
the Federal Docket Management System (FDMS) website at: https://www.regulations.gov and by following the online search instructions to
locate the docket number as listed in the title of this notice.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and
30120(h)) that permit manufacturers to file petitions for a
determination of inconsequentiality allow NHTSA to exempt manufacturers
only from the duties found in sections 30118 and 30120, respectively,
to notify owners, purchasers, and dealers of a defect or noncompliance
and to remedy the defect or noncompliance. Therefore, any decision on
this petition only applies to the subject vehicles that BMW no longer
controlled at the time it determined that the noncompliance existed.
However, any decision on this petition does not relieve vehicle
distributors and dealers of the prohibitions on the sale, offer for
sale, or introduction or delivery for introduction into interstate
commerce of the noncompliant vehicles under their control after BMW
notified them that the subject noncompliance existed.

    Authority: 49 U.S.C. 30118, 30120: delegations of authority at
49 CFR 1.95 and 501.8.

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2021-08450 Filed 4-22-21; 8:45 am]
BILLING CODE 4910-59-P


										Richard Grow
                                                      Berkeley, CA
                                                      August 14, 2023

Comments:	Proposed approval of San Joaquin Valley PM plan.
      FR 88 45276; July 14, 2023
      Docket ID No. EPA-R09-OAR-2023-0263

Subject: Civil Rights and EPA's Proposed Approval of San Joaquin State Implementation Plan.

These comments address the treatment of the issues of civil rights and environmental justice in EPA's July 14, 2023 proposed approval of the San Joaquin Valley state implementation plan (SIP) for attainment of the 1997 annual fine particulate matter (PM) standard. The comments are directed in particular at EPA's decision to accept the California Air Resources Board (CARB) submission as meeting the requirements Section 110(a)(2)(E) of the Clean Air Act as they interact with Title VI of the Civil Rights Act of 1964.

In accepting CARB's vague, aspirational and misleading "assurances" of compliance with the Civil Rights Act EPA has missed an opportunity to live up to the commitments of the Biden administration and EPA Administrator Regan to prioritize environmental justice and civil rights. To duck this opportunity 2-1/2 years into this administration is to not only roll the dice and defer the rights of the people of the San Joaquin Valley, but also to send a signal to air and environmental agencies across the country that the EPA is less than serious about civil rights.

The plain language of Section 110(a)(2)(E ) of the Clean Air Act (CAA) requires that CARB provide "necessary assurances" that implementation of the submitted plan for the San Joaquin Valley will be carried out in compliance with Title VI of the Civil Rights Act of 1964. Yet neither CARB nor the San Joaquin Valley Air Pollution Control District have the policies and procedures in place to ensure such compliance, nor has EPA ever made such a determination with regard to either agency. To nevertheless find those agencies' general "assurances" as fulfilling the requirements of the law defies both common sense and due diligence in protecting the public health and civil rights of the people of the San Joaquin Valley.

EPA's continuing failure to issue CAA Section 110(a)(2)(E) Title VI guidance

In its prior proposal in October of 2022 to disapprove the San Joaquin Valley Plan EPA acknowledged problems demonstrating compliance with the requirements of Section 110(a)(2)(E) of the Clean Air Act as they interacted with those of Title VI of the 1964 Civil Rights Act. EPA acknowledged that in the 10 years since addressing the issue in a rulemaking in 2012, it had still never issued guidance or regulations.

EPA then committed that "such guidance is forthcoming".

Eight months after that EPA commitment, CARB, having worked to remedy the air planning flaws cited in EPA's proposed disapproval and facing deadlines to remedy those flaws, attempted to also address the Clean Air Act 110(a)(2)(E) Title VI problems cited in the proposed disapproval.  However, as EPA remained mute on what CARB might do to address this problem, CARB resorted to a posture best characterized as "we've been really busy on environmental justice and have plans for Title VI."

Most disappointing more than CARB's fundamentally flawed and weak case for "assurances" is EPA's utter failure to issue any form of guidance, or even suggestions on what such assurances might consist of. EPA's default and de facto position regarding necessary assurances has been "anything will do", an unsurprising position among media program offices and in particular among the Agency "old guard" which for the most part has never understood or believed in the practical relevance of Title VI to the air program. But why such a stale and obsolete posture should prevail 2-1/2 years into the Biden/Regan administration remains dumbfunding.

The absence of guidance on this crucial requirement lying at the intersection of the Clean Air Act and Civil Rights Act is unjustifiable and irresponsible when the Agency could have simply insisted that a federally approvable air plan ought to be accompanied by:

 some sort of equity or environmental justice assessment, and
 consideration of alternative measures to lessen or eliminate any potentially discriminatory burdens revealed by that assessment.

This basic environmental justice logic has been threaded throughout numerous EPA guidance and other documents for the past many years and administrations. It should not be much of a reach to bring it onto the 110(a)(2)(E) Title VI table.

A short history of history of CAA Section 110(a)(2)(E) and its interaction with Title VI

EPA's first assertion of the relevance and applicability of 110(a)(2)(E) came in 1997 in the context of a SIP submittal from CARB. In response to the submittal, EPA's Region 9 office responded that "we believe that the Civil Rights Act and the Clean Air Act are intertwined" and that in light of issues raised in a complaint filed under Title VI there was "uncertainty" about whether the 110(a)(2)(E) requirements had been met and thus the SIP could not be approved. Contributing to the "uncertainty" was the fact that at the time EPA had still provided no guidance on Title VI in any form, the 1997 action preceding the issuance of "draft" guidance in 1998, followed by "interim" guidance in 2000, neither ever finalized.

It should be noted that this refusal to approve the SIP was based not simply on the existence of the Title VI complaint, but of uncertainty regarding "issues" raised in the complaint. It should also be noted that the issues were indeed valid and significant having to do with the inherent distributional effects of an emissions trading program in the South Coast Air Basin.

Moving ahead to 2012, EPA Region 9 again found itself in a difficult position in trying to approve a SIP in the San Joaquin Valley and in the face of comments regarding Section 110(a)(2)(E) and Title VI. In the intervening 15 years EPA had still not issued any guidance on the issue. In order to move ahead with what it felt was a needed air plan, EPA cobbled together a collection of assertions that basically the state and local agencies were doing a lot, that there were no bright line regulations or guidance on 110(a)(2)(E), and ultimately, given the void in relevant guidance, it had "discretion" to approve the pot full of "assurances" as long as it could provide a "reasoned" rationale.

Moving ahead to 2022-2023, as noted above, EPA has still done nothing at all to fill this void in guidance on 110(a)(2)(E), yet quite a lot has changed on the civil rights side. But first a brief note on EPA's use and failure to use "discretion" in favor of civil rights.

Deference, discretion, environmental justice and civil rights.
EPA in its 2023 proposed approval of the San Joaquin Valley's Title VI "assurances" avails itself of its self-imposed low hurdle requirement to simply exercise "discretion", in accepting CARB's arm waving "assurances", in this case requiring EPA simply to provide a "reasoned judgement". As remarkably flimsy as this posture may be, it nevertheless begs the question of why wouldn't EPA exercise this same discretion in favor of a more rigorous posture as to what constitutes "necessary assurances". EPA obviously, even according to its own reasoning, has an expansive range of discretion.

In its proposal EPA attempts to differentiate between (a) finding that the State has provided the necessary assurances required by CAA Section 110(a)(2)(E) that implementation of the submitted PM plan is not "prohibited" by Title VI and (b) stating that approval of the plan "does not constitute a formal finding of compliance with Title VI...". (88 FR 45321). To put forth such pettifoggery on an issue with such real life significance as civil rights protections in the San Joaquin Valley is a disservice to the hard earned credit EPA had garnered in the areas of environmental justice and civil rights during its first two years.

The question begged by the 2023 proposal is whether under a Biden/Regan EPA one could and should hope to see more interest in exercising that discretion in favor of environmental justice and civil rights than it exhibited 11 years earlier ? According to the proposal, the answer is no and EPA retreats to its 2012 posture. The point of these comments is that the Agency should change its answer to yes if if is to retain any credibility for having moved the civil rights issue ahead. Why not embrace rather than evade civil rights ?

CARB's "assurances"

In its notice EPA points to CARB's June 15, 2023 submittal of a "Title VI Supplement" and cites five areas  in support of finding CARB's "assurances" adequate (at 88 FR 45320-45321). Regarding these, the following comments and observations are offered.

 The State's "Civil Rights Policy and Discrimination Complaint Process", including "a process for filing a complaint of discrimination against CARB"

      Comment: Tellingly, in the CARB civil rights supplement it describes the complaint process solely in the future tense, i.e. the Civil Rights Officer "will" review the facts etc. The reason for the use of such conditional terms is that in fact CARB has no process or procedures for dealing with a complaint originating from outside of CARB. In discussions with CARB staff this Spring it was learned that thus far CARB had received only one such complaint, for which it adapted its process for internal complaints (i.e. EEO complaints) to process that complaint, finding no discrimination.

      Further, the "Policy" cited by CARB and in EPA's notice was adopted in 2016, which is say prior to EPA's processing prior (to this 2023 action but subsequent to the 2016 policy) complaints against CARB and in which it had noted several procedural deficiencies.

      One has to be curious whether EPA accepted CARB's "assurances" at face value, or whether it did its own fact checking to ascertain the practical reality behind CARB's submission. If there is any documented support for this finding, EPA should make such technical support documents publicly available.

 Public engagement: "Early enhanced public engagement" for the SIP, "prioritized public participation", "soliciting public input" on statewide measures.

 AB 617 program.

 Racial equity assessment lens.

 Community air monitoring networks

The latter four areas of CARB effort (public engagement, AB 617 program, equity lens, community air monitoring) are all commendable features of an increasingly forward leaning environmental justice program. However, whether they might or will be applied in any sort of systematic manner to avoid actual disproportionate effects is not addressed at all by either CARB or the U.S. EPA. One reason for this appears to be that, at this point, CARB has yet to take or even commit to such a systematic approach.

Title VI and environmental justice. EPA's proposed action appears to be reverting to its prior long time posture of conflating the statutory requirements of Title VI with the largely policy-based and unenforceable imperatives of its EJ programs and policies, substituting procedural justice for substantive justice. CARB's own confusion on this is reflected in its 2016 Civil Rights Policy, in which it seems to acknowledge a core requirement of federal civil rights requirements in prohibiting "[u]sing criteria or methods of administering its program with the effect of discriminating against a user, or potential user, of the program offered by CARB", but then includes this only under its definition of "denial of fair and equal access." Thus CARB, as did EPA for so many years, has substituted procedural requirements for the more substantive core requirement of Title VI. Fair access is not the same as requiring a fair, or nondiscriminatory, result.

EPA's attempt to conflate environmental justice with civil rights in the context of fulfilling statutory civil rights requirements suffers from at least one major flaw. While environmental justice policies, measures and practice are indeed commendable, their statutory basis is much less exact than the requirements of civil rights. EPA's basic posture has been that agencies must "address" rather than resolve environmental justice issues. By way of contrast, to establish compliance with statutorily based and enforceable civil rights requirement, a party subject to those requirements should be able to show how it addresses those requirements systematically with a defined methodology. Indeed the core civil rights requirements at 40 CFR 7.35 require that entities subject to Title VI "...shall not use criteria or methods of administering its program or activity." (italics added.)

What has changed since EPA's 2012 CAA 110(a)(2)(E) finding ?

Since 2012 there have been numerous advances in the available methodologies and technical tools for evaluating whether recipient agency actions, policies or practices (i.e. "criteria or methods") may result in disproportionate impacts on populations protected under Title VI of the Civil Rights Act.

There is simply no excuse for not considering (nor requiring consideration of) whether a particular action of a recipient agency, whether issuing a permit, adopting a SIP or other action, is taking an action which could cause or contribute to a disproportionate impact on a protected population. The basic logic and methodology has been long established and substantially enhanced by further actions under the Biden/Regan administration. Whether these have been issued under the rubric of "environmental justice", "civil rights, "equity" etc. should be irrelevant when considering that there are in fact numerous tools and methodologies available. Among these are:

 Mapping tools including EJ Screen, CalEnviroScreen, etc.

 Guidance on development and approval of regulatory actions; this could include SIPs:

 2015: "Guidance on Considering Environmental Justice During the Development of Regulatory Actions", May, 2015. https://www.epa.gov/sites/default/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf

 2016: "Technical Guidance for Assessing Environmental Justice in Regulatory Actions", June, 2016. https://www.epa.gov/sites/default/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf

 Legal Tools: "EPA Legal Tools to Advance Environmental Justice", May, 2022; https://www.epa.gov/system/files/documents/2022-05/EJ%20Legal%20Tools%20May%202022%20FINAL.pdf

Several of these are noted in EPA's notice at footnote 429 on page 88 FR 45320 and described by EPA as "resources of general applicability concerning Title VI obligations for recipients of federal financial assistance"(emphasis added). It is notable that while these resources been available for quite some time, it seems apparent that CARB availed itself of none of them in carrying out its programmatic responsibilities. One has to be curious whether EPA, in preparing this notice and noting these resources, inquired of CARB as to its awareness and/or use of these resources and, if there was a lack of such, whether finding CARB's assurances adequate was premature. It is this commenter's position that in fact the finding was substantially premature.
The basic logic and methodology for addressing civil rights in permitting action was well laid out in EPA's August, 2022 document, "Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQs)". While this document's stated purpose is with regard to permitting, the basic logic can and should readily be translated and applied to other agency actions including SIPs, planning etc. The document is available at: https://www.epa.gov/system/files/documents/2022-08/EJ%20and%20CR%20in%20PERMITTING%20FAQs%20508%20compliant.pdf.
As also noted in the 2023 proposal, EPA's Civil Right Office issued a Title VI "Toolkit and Chapter 1" in January, 2017. That same month the U.S. Department of Justice issued an update of its "Title VI Legal Manual". There has been no lack of available guidance and advice for any recipient of federal aid wanting to "assure" EPA of its commitment to not violating Title VI.

Adequacy of CARB "assurances"

EPA, while referring to its own previous arm-waving in 2012 regarding the adequacy of assurances with regard to Title VI, and engaging in further wanderings this time around, neglects a plain reading of its own 2013 guidance, to which it referred in its October 5, 2022 proposal for this action, and which suggested that, to meet the requirements of Section 110(a)(2)(E) a plan should include:

    "...detailed explanation of how the existing SIP...meets each of the applicable requirements of section 110(a)(2)(E)(i). This should include a description of the correlation between the requirements of this element and an equivalent set of statutory, regulatory, and/or nonregulatory provisions, as appropriate."

While such guidance may be unenforceable by the courts, EPA certainly has "discretion" to make a "reasoned judgement" to apply such a perspective in considering the adequacy of the San Joaquin Valley SIP's compliance with 110(a)(2) requirements. This could quite plausibly require a "detailed explanation" of the SIP submission's "correlation" with the requirements of Title VI.

More to the point of EPA's proposal to approve the CARB submittal, for the past 10 years CARB has agreed to terms and conditions in accepting federal assistance from EPA that CARB:

    "...has an affirmative obligation to implement effective Title VI compliance programs and ensure that its actions do not involve discriminatory treatment and do not have discriminatory effects even when facially neutral. The recipient must be prepared to demonstrate to EPA that such compliance programs exist and are being implemented or to otherwise demonstrate how it is meeting its Title VI obligations."

This would appear to be a minimum, as well as "reasoned", criteria for accepting CARB's "assurances". Where then is CARB's demonstration, to which it has agreed for the past 10 years, "...that such [Title VI} compliance programs exist and are being implemented or to otherwise demonstrate how it is meeting its Title VI obligations" ?  Where is EPA's review of such demonstration, and where and when will EPA's review of that demonstration be available for public review and comment ?

It is simply unacceptable for EPA to even attempt to avail itself of the same rationale as used in 2012 for this action taking place in 2023, three years after the murder of George Floyd and under the a Biden/Harris/Regan administration which had pledged to prioritize environmental justice and civil rights. In avoiding application of meaningful rigor to this plan submission, EPA arguably is itself applying "criteria or methods" with potentially discriminatory effect on the people of the San Joaquin Valley for whom civil rights are supposed to be protected by the EPA.

Conclusion
In conclusion, it is obvious that EPA's rationale for accepting CARB's submission as adequate with regard to "necessary assurances" is one forced by the Agency's hesitation to hold up approval of the San Joaquin Valley clean air plan based on civil rights concerns. This follows from EPA's having failed to issue guidance on Section 110(a)(2)(E) of the Clean Air Act with regard to Tile VI, some 11 years after its first fumbling attempt at conjuring such a rationale, 26 years after in this same EPA Region, EPA in fact rejected a CARB submission based exactly on this same Section 110(a)(2)(E) Title VI requirement. While the principled stance taken by EPA in 1997 was in a different air basin, the 2012 action and the currently proposed one are with regard to the San Joaquin Valley in the same state of California . EPA should consider whether it views civil rights as applicable differently in the San Joaquin Valley than elsewhere.
EPA should withhold finding that the State has provided adequate necessary assurances for the purposes of CAA Section 110(a)(2)(E). EPA should recognize that the circumstances surrounding its 2012 finding for the same air basin have substantially changed over the subsequent 11 years, and proceed with issuing guidance taking into account developments since that time both within the Administration and EPA and in the broader societal context in which EPA is currently acting.
Finally we note that in the past the Agency has taken actions characterized as "conditional approvals". The Agency should consider the option of conditionally approving the San Joaquin Valley submittal with regard to the requirements which it is deemed to have met, accompanied by an enforceable condition requiring CARB, and the San Joaquin Valley, to bring their programs into complete and demonstrated compliance, as required by statute and the terms and conditions of EPA's grants to CARB, with Title VI within a defined time frame, for instance one year.

Respectfully,

Richard Grow
U.S. EPA Retired
Berkeley, California