82_FR_6512 82 FR 6500 - California State Nonroad Engine Pollution Control Standards; Commercial Harbor Craft Regulations; Notice of Decision

82 FR 6500 - California State Nonroad Engine Pollution Control Standards; Commercial Harbor Craft Regulations; Notice of Decision

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range6500-6506
FR Document2017-01261

The Environmental Protection Agency (``EPA'') is granting the California Air Resources Board (``CARB'') its request for an authorization of its amendments to its Commercial Harbor Craft regulations (``CHC Amendments''). EPA is also confirming that certain CHC amendments are within the scope of a prior EPA authorization. CARB's CHC Amendments primarily subject diesel-fueled engines on crew and supply, barge and dredge vessels to the in-use engine emission requirements of the original CHC regulations; allow CARB or EPA Tier 2 or higher tier certified off-road (``nonroad'') engines to be used as auxiliary or propulsion engines in both new and in-use CHC vessels; and clarify requirements and address certain issues that have arisen during CARB's implementation of the original CHC regulations. This decision is issued under the authority of the Clean Air Act (``CAA'' or ``Act'').

Federal Register, Volume 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6500-6506]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-01261]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0534; FRL-9958-62-OAR]


California State Nonroad Engine Pollution Control Standards; 
Commercial Harbor Craft Regulations; Notice of Decision

AGENCY: Environmental Protection Agency.

ACTION: Notice of decision.

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SUMMARY: The Environmental Protection Agency (``EPA'') is granting the 
California Air Resources Board (``CARB'') its request for an 
authorization of its amendments to its Commercial Harbor Craft 
regulations (``CHC Amendments''). EPA is also confirming that certain 
CHC amendments are within the scope of a prior EPA authorization. 
CARB's CHC Amendments primarily subject diesel-fueled engines on crew 
and supply, barge and dredge vessels to the in-use engine emission 
requirements of the original CHC regulations; allow CARB or EPA Tier 2 
or higher tier certified off-road (``nonroad'') engines to be used as 
auxiliary or propulsion engines in both new and in-use CHC vessels; and 
clarify requirements and address certain issues that have arisen during 
CARB's implementation of the original CHC regulations. This decision is 
issued under the authority of the Clean Air Act (``CAA'' or ``Act'').

DATES: Petitions for review must be filed by March 20, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2014-0534. All documents relied upon in making this 
decision, including those submitted to EPA by CARB, are contained in 
the public docket. Publicly available docket materials are available 
either electronically through www.regulations.gov or in hard copy at 
the Air and Radiation Docket in the EPA Headquarters Library, EPA West 
Building, Room 3334, located at 1301 Constitution Avenue NW., 
Washington, DC. The Public Reading Room is open to the public on all 
federal government working days from 8:30 a.m. to 4:30 p.m.; generally, 
it is open Monday through Friday, excluding holidays. The telephone 
number for the Reading Room is (202) 566-1744. The Air and Radiation 
Docket and Information Center's Web site is http://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and 
Radiation Docket is: [email protected], the telephone number is 
(202) 566-1742, and the fax number is (202) 566-9744. An electronic 
version of the public docket is available through the federal 
government's electronic public docket and comment system. You may 
access EPA dockets at http://www.regulations.gov. After opening the 
www.regulations.gov Web site, enter EPA-HQ-OAR-2014-0534 in the ``Enter 
Keyword or ID'' fill-in box to view documents in the record. Although a 
part of the official docket, the public docket does not include 
Confidential Business Information (``CBI'') or other information whose 
disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality (``OTAQ'') maintains 
a Web page that contains general information on its review of 
California waiver requests. Included on that page are links to prior 
waiver Federal Register notices, some of which are cited in today's 
notice. The page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney-Advisor, 
Transportation Climate Division, Office of Transportation and Air 
Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue 
(6405J), NW., Washington, DC 20460. Telephone: (202) 343-9256. Fax: 
(202) 343-2800. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    EPA granted an authorization for California's initial set of CHC 
regulations on December 5, 2011.\1\ California's initial CHC 
regulations

[[Page 6501]]

established emission standards, requirements related to the control of 
emissions, and enforcement provisions. The requirements are applicable 
to diesel propulsion and auxiliary engines on new and in-use commercial 
harbor craft, with some exceptions. Commercial harbor craft include a 
variety of different types of vessels, including ferries, excursion 
vessels, tugboats, towboats, and commercial and charter fishing boats. 
The initial CHC regulations established in-use emission limits for in-
use ferries, excursion vessels, tugboats, and towboats equipped with 
federal Tier 0 and Tier 1 propulsion and auxiliary marine engines. 
Owners and operators of these vessels were required to upgrade the 
engines to meet emission limits equal to or cleaner than federal Tier 2 
or Tier 3 marine engine certification standards, according to a 
compliance schedule that was also set forth in the regulations. The 
compliance schedule was based on the model year of the original engine 
(``in-use engine model year''), its hours of operation, and the 
vessel's home port location. The CHC regulations apply separately to 
new and in-use engines used on harbor craft.\2\
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    \1\ 76 FR 77521 (December 5, 2011).
    \2\ The regulations are codified at title 13, California Code of 
Regulations (CCR), section 2229.5 and title 17, CCR section 93118.5.
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    In a letter dated May 28, 2014, CARB submitted to EPA its request 
pursuant to section 209(e) of the CAA, regarding authorization of its 
amendments to California's CHC regulations to reduce emissions from 
diesel engines on commercial harbor craft (``CHC Amendments'').\3\ The 
CARB Board approved the CHC Amendments on June 24, 2010 (by Resolution 
10-26).\4\
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    \3\ Letter and attached memo from Richard Corey, CARB to Gina 
McCarthy, EPA dated May 28, 2014 (``Waiver Support Document''), EPA-
HQ-OAR-2014-0534-0002.
    \4\ CARB Resolution 10-26, June 24, 2010, EPA-HQ-OAR-2014-0534-
0008.
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    The CHC Amendments set forth a variety of in-use requirements, 
including extending the applicability of the CHC regulations to in-use 
crew and supply, barge, and dredge vessels that are equipped with 
federal Tier 0 and Tier 1 propulsion and auxiliary marine engines that 
operate within the Regulated California Waters.\5\ The CHC Amendments 
also eliminate certain exemptions for CHC engines that had been 
registered in CARB's portable equipment registration program (``PERP'') 
or permitted by local air pollution districts, and now subject such 
engines to the CHC regulations. In addition, the CHC Amendments clarify 
and define ``swing engines'' as replacement engines that are maintained 
at dockside locations and require such engines to comply with the CHC 
regulation's in-use engine requirements. The original CHC regulations 
required replacement engines for in-use CHC vessels to be certified to 
current EPA model year engines standards. CARB found this requirement 
could present difficulties for in-use CHC vessels in certain 
situations. Therefore, the CHC Amendments allow an owner or operator to 
use a non-current-year certified replacement engine under certain 
circumstances. In addition, the CHC Amendments allow the use of 
existing engines in a fleet to replace an older engine otherwise 
subject to the in-use requirements (the existing engine becomes subject 
to the in-use compliance date that applied to the engine being 
replaced). The CHC Amendments also expand the compliance extension 
options to fleets of three or more vessels.
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    \5\ Regulated California Waters include all California inland 
waters, all California estuarine waters, and all waters within a 
zone 24 nautical miles seaward of the California coastline, except 
for specified areas along the Southern California coastline, Title 
17 CCR 93118.5(d)(68). The original CHC regulations required owners 
or operators of in-use ferries, excursion vessels, and tugboats 
equipped with Tier 0 and Tier 1 propulsion and auxiliary marine 
engines to meet equal to or cleaner than federal Tier 2 or Tier 3 
new marine engine certification standards in effect for the year 
that in-use engine compliance was required. The compliance schedule 
was based on the in-use engine model year, hours of operation, and 
the vessel's home port location. The amendments establish compliance 
schedules applicable to crew and supply vessel engines and a 
separate set of compliance schedules applicable to both barge and 
dredge vessel engines that are based solely on the in-use engine 
model year and annual hours of operation.
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    CARB's CHC Amendments also include requirements that are applicable 
to both new and in-use engines. The original CHC regulation provided 
that new or in-use diesel propulsion or auxiliary engines for in-use 
harbor craft could not be sold, offered for sale, leased, rented, or 
acquired unless the engines were certified to at least federal Tier 2 
or Tier 3 marine emission standards for a new engine of the same power 
rating and displacement in effect at the time of the aforementioned 
actions. The amendments now provide compliance flexibility to CHC 
owners or operators with the option of using EPA or CARB Tier 2 or 
higher tier certified off-road engines provided the engine or vessel 
manufacturer has complied with the provisions of 40 CFR 1042.605, which 
establishes requirements for marinized land-based engines.

A. California's Authorization Request

    California requested that EPA perform two types of review. First, 
CARB requested an EPA determination that certain provisions of the CHC 
Amendments are within the scope of a prior authorization issued by EPA, 
or in the alternative, merit full authorization (``Within-the-Scope 
Amendments''). CARB includes as part of the Within-the-Scope 
Amendments: The provisions allowing use of EPA or CARB certified off-
road CI engines to comply with the new and in-use requirements for 
propulsion and/or auxiliary engines; the amendments that subject CHC 
engines registered and permitted by local air pollution districts prior 
to January 1, 2009, CHC auxiliary engines registered to CARB's PERP 
prior to January 1, 2009, and CHC auxiliary engines not permanently 
affixed to the vessel and registered in PERP on or after January 1, 
2009 to the CHC Regulation; and the amendments that clarify swing 
engines are replacement engines subject to the CHC regulation's in-use 
requirements, along with the exemptions for replacement engines in in-
use CHC vessels, the allowance of the use of existing engines to 
replace an older engine subject to in-use requirements, and the 
expansion of the availability of compliance extensions for CHC vessel 
fleets.
    Second, CARB requests full authorization for amendments that 
establish new requirements (``Full Authorization Amendments''). The 
Full Authorization Amendments pertain to the new provisions 
establishing in-use requirements applicable to crew and supply, barge, 
and dredge vessels. The amendments extend the applicability of the 
previous requirement that specified categories of CHC vessels (ferries, 
excursions vessels tugboats, towboats, push boats, and multipurpose 
harbor craft) to meet emission limits equal to or cleaner than federal 
Tier 2 or Tier 3 new marine engine emission standards, as applicable 
and in effect for the year that in-use engine compliance is required 
under the compliance schedule set forth within the regulation.

B. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts any state, or 
political subdivision thereof, from adopting or attempting to enforce 
any standard or other requirement relating to the control of emissions 
for certain new nonroad engines or vehicles.\6\ For

[[Page 6502]]

all other nonroad engines, states generally are preempted from adopting 
and enforcing standards and other requirements relating to the control 
of emissions. Section 209(e)(2), however, requires the Administrator, 
after notice and opportunity for public hearing, to authorize 
California to adopt and enforce standards and other requirements 
relating to the control of emissions from such vehicles or engines if 
California determines that California standards will be, in the 
aggregate, at least as protective of public health and welfare as 
applicable Federal standards. However, EPA shall not grant such 
authorization if it finds that (1) the determination of California is 
arbitrary and capricious; (2) California does not need such California 
standards to meet compelling and extraordinary conditions; or (3) 
California standards and accompanying enforcement procedures are not 
consistent with [CAA section 209].\7\
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    \6\ States are expressly preempted from adopting or attempting 
to enforce any standard or other requirement relating to the control 
of emissions from new nonroad engines which are used in construction 
equipment or vehicles or used in farm equipment or vehicles and 
which are smaller than 175 horsepower. Such express preemption under 
section 209(e)(1) of the Act also applies to new locomotives or new 
engines used in locomotives. CAA Sec.  209(e)(1), 42 U.S.C. 
7543(e)(1)(A).
    \7\ EPA's review of California regulations under section 209 is 
not a broad review of the reasonableness of the regulations or its 
compatibility with all other laws. Sections 209(b) and 209(e) of the 
Clean Air Act limit EPA's authority to deny California requests for 
waivers and authorizations to the three criteria listed therein. As 
a result, EPA has consistently refrained from denying California's 
requests for waivers and authorizations based on any other criteria. 
In instances where the U.S. Court of Appeals has reviewed EPA 
decisions declining to deny waiver requests based on criteria not 
found in section 209(b), the Court has upheld and agreed with EPA's 
determination. See Motor and Equipment Manufacturers Ass'n v. 
Nichols, 142 F.3d 449, 462-63, 466-67 (D.C. Cir. 1998), Motor and 
Equipment Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20 
(D.C. Cir. 1979). See also 78 FR 58090, 58120 (September 20, 2013).
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    On July 20, 1994, EPA promulgated a rule interpreting the three 
criteria set forth in section 209(e)(2)(A) that EPA must consider 
before granting any California authorization request for nonroad engine 
or vehicle emission standards.\8\ EPA revised these regulations in 
1997.\9\ As stated in the preamble to the 1994 rule, EPA historically 
has interpreted the consistency inquiry under the third criterion, 
outlined above and set forth in section 209(e)(2)(A)(iii), to require, 
at minimum, that California standards and enforcement procedures be 
consistent with section 209(a), section 209(e)(1), and section 
209(b)(1)(C) of the Act.\10\
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    \8\ See ``Air Pollution Control; Preemption of State Regulation 
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20, 
1994).
    \9\ See ``Control of Air Pollution: Emission Standards for New 
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts; 
Preemption of State Regulation for Nonroad Engine and Vehicle 
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997). 
The applicable regulations are now found in 40 CFR part 1074, 
subpart B, section 1074.105.
    \10\ 59 FR 36969 (July 20, 1994). EPA has interpreted 
209(b)(1)(C) in the context of section 209(b) motor vehicle waivers.
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    In order to be consistent with section 209(a), California's nonroad 
standards and enforcement procedures must not apply to new motor 
vehicles or new motor vehicle engines. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests under section 209(b)(1)(C). That provision 
provides that the Administrator shall not grant California a motor 
vehicle waiver if she finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the Act. Previous decisions granting waivers and 
authorizations have noted that state standards and enforcement 
procedures will be found to be inconsistent with section 202(a) if (1) 
there is inadequate lead time to permit the development of the 
necessary technology, giving appropriate consideration to the cost of 
compliance within that time,\11\ or (2) the federal and state testing 
procedures impose inconsistent certification requirements.\12\
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    \11\ H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).
    \12\ S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).
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    In light of the similar language in sections 209(b) and 
209(e)(2)(A), EPA has reviewed California's requests for authorization 
of nonroad vehicle or engine standards under section 209(e)(2)(A) using 
the same principles that it has historically applied in reviewing 
requests for waivers of preemption for new motor vehicle or new motor 
vehicle engine standards under section 209(b).\13\ These principles 
include, among other things, that EPA should limit its inquiry to the 
three specific authorization criteria identified in section 
209(e)(2)(A),\14\ and that EPA should give substantial deference to the 
policy judgments California has made in adopting its regulations. In 
previous waiver decisions, EPA has stated that Congress intended EPA's 
review of California's decision-making be narrow. EPA has rejected 
arguments that are not specified in the statute as grounds for denying 
a waiver:
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    \13\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075, 
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of 
permissible construction in analogizing Sec.  209(e) on nonroad 
sources to Sec.  209(a) on motor vehicles.''
    \14\ See EPA's Final 209(e) rulemaking at 59 FR 36969, 36983 
(July 20, 1994).

    The law makes it clear that the waiver requests cannot be denied 
unless the specific findings designated in the statute can properly 
be made. The issue of whether a proposed California requirement is 
likely to result in only marginal improvement in California air 
quality not commensurate with its costs or is otherwise an arguably 
unwise exercise of regulatory power is not legally pertinent to my 
decision under section 209, so long as the California requirement is 
consistent with section 202(a) and is more stringent than applicable 
Federal requirements in the sense that it may result in some further 
reduction in air pollution in California.\15\
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    \15\ ``Waiver of Application of Clean Air Act to California 
State Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more 
stringent standard expressed here, in 1971, was superseded by the 
1977 amendments to section 209, which established that California 
must determine that its standards are, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards. In the 1990 amendments to section 209, Congress 
established section 209(e) and similar language in section 
209(e)(1)(i) pertaining to California's nonroad emission standards 
which California must determine to be, in the aggregate, at least as 
protective of public health and welfare as applicable federal 
standards.

    This principle of narrow EPA review has been upheld by the U.S. 
Court of Appeals for the District of Columbia Circuit.\16\ Thus, EPA's 
consideration of all the evidence submitted concerning an authorization 
decision is circumscribed by its relevance to those questions that may 
be considered under section 209(e)(2)(A).
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    \16\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 
1095 (D.C. Cir. 1979) (``MEMA I'').
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B. Within-the-Scope Determinations

    If California amends regulations that were previously authorized by 
EPA, California may ask EPA to determine that the amendments are within 
the scope of the earlier authorization. A within-the-scope 
determination for such amendments is permissible without a full 
authorization if three conditions are met. First, the amended 
regulations must not undermine California's previous determination that 
its standards, in the aggregate, are as protective of public health and 
welfare as applicable federal standards. Second, the amended 
regulations must not affect consistency with section 209 of the Act, 
following the same criteria discussed above in the context of full 
authorizations. Third, the amended regulations must not raise any ``new 
issues'' affecting EPA's prior authorizations.\17\
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    \17\ See ``California State Motor Vehicle Pollution Control 
Standards; Amendments Within the Scope of Previous Waiver of Federal 
Preemption,'' 46 FR 36742 (July15, 1981).

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[[Page 6503]]

C. Deference to California

    In previous waiver and authorization decisions, EPA has recognized 
that the intent of Congress in creating a limited review based on the 
section 209(b)(1) criteria was to ensure that the federal government 
did not second-guess state policy choices. As the agency explained in 
one prior waiver decision:

    It is worth noting . . . I would feel constrained to approve a 
California approach to the problem which I might also feel unable to 
adopt at the federal level in my own capacity as a regulator. The 
whole approach of the Clean Air Act is to force the development of 
new types of emission control technology where that is needed by 
compelling the industry to ``catch up'' to some degree with newly 
promulgated standards. Such an approach . . . may be attended with 
costs, in the shape of reduced product offering, or price or fuel 
economy penalties, and by risks that a wider number of vehicle 
classes may not be able to complete their development work in time. 
Since a balancing of these risks and costs against the potential 
benefits from reduced emissions is a central policy decision for any 
regulatory agency under the statutory scheme outlined above, I 
believe I am required to give very substantial deference to 
California's judgments on this score.\18\
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    \18\ 40 FR 23102, 23103-23104 (May 28, 1975).

    Similarly, EPA has stated that the text, structure, and history of 
the California waiver provision clearly indicate both a congressional 
intent and appropriate EPA practice of leaving the decision on 
``ambiguous and controversial matters of public policy'' to 
California's judgment.\19\ This interpretation is supported by relevant 
discussion in the House Committee Report for the 1977 amendments to the 
Clean Air Act.\20\ Congress had the opportunity through the 1977 
amendments to restrict the preexisting waiver provision, but elected 
instead to expand California's flexibility to adopt a complete program 
of motor vehicle emission controls. The report explains that the 
amendment is intended to ratify and strengthen the preexisting 
California waiver provision and to affirm the underlying intent of that 
provision, that is, to afford California the broadest possible 
discretion in selecting the best means to protect the health of its 
citizens and the public welfare.\21\
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    \19\ Id. at 23104; 58 FR 4166 (January 13, 1993).
    \20\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th 
Cong., 1st Sess. 301-302 (1977)).
    \21\ Id.
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D. Burden and Standard of Proof

    As the U.S. Court of Appeals for the D.C. Circuit has made clear in 
MEMA I, opponents of a waiver request by California bear the burden of 
showing that the statutory criteria for a denial of the request have 
been met:

[T]he language of the statute and its legislative history indicate 
that California's regulations, and California's determinations that 
they must comply with the statute, when presented to the 
Administrator are presumed to satisfy the waiver requirements and 
that the burden of proving otherwise is on whoever attacks them. 
California must present its regulations and findings at the hearing 
and thereafter the parties opposing the waiver request bear the 
burden of persuading the Administrator that the waiver request 
should be denied.\22\
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    \22\ MEMA I, supra note 17, at 1121.

    The same logic applies to authorization requests. The 
Administrator's burden, on the other hand, is to make a reasonable 
evaluation of the information in the record in coming to the waiver 
decision. As the court in MEMA I stated: ``here, too, if the 
Administrator ignores evidence demonstrating that the waiver should not 
be granted, or if he seeks to overcome that evidence with unsupported 
assumptions of his own, he runs the risk of having his waiver decision 
set aside as `arbitrary and capricious.' '' \23\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \24\
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    \23\ Id. at 1126.
    \24\ Id. at 1126.
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    With regard to the standard of proof, the court in MEMA I explained 
that the Administrator's role in a section 209 proceeding is to:

[ . . . ] consider all evidence that passes the threshold test of 
materiality and . . . thereafter assess such material evidence 
against a standard of proof to determine whether the parties 
favoring a denial of the waiver have shown that the factual 
circumstances exist in which Congress intended a denial of the 
waiver.\25\
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    \25\ Id. at 1122.

    With regard to the protectiveness finding, the court upheld the 
Administrator's position that, to deny a waiver, there must be ``clear 
and compelling evidence'' to show that proposed enforcement procedures 
undermine the protectiveness of California's standards.\26\ The court 
noted that this standard of proof also accords with the congressional 
intent to provide California with the broadest possible discretion in 
setting regulations it finds protective of the public health and 
welfare.\27\
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    \26\ Id.
    \27\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all proceedings, but found 
that the opponents of the waiver were unable to meet their burden of 
proof even if the standard were a mere preponderance of the evidence. 
EPA's past waiver decisions have consistently made clear that: ``[E]ven 
in the two areas concededly reserved for Federal judgment by this 
legislation--the existence of `compelling and extraordinary' conditions 
and whether the standards are technologically feasible--Congress 
intended that the standards of EPA review of the State decision to be a 
narrow one.'' \28\
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    \28\ See, e.g., ``California State Motor Vehicle Pollution 
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 
28, 1975), at 23103.
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E. EPA's Administrative Process in Consideration of California's 
Commercial Harbor Craft Regulations

    Upon review of CARB's request, EPA offered an opportunity for a 
public hearing, and requested written comment on issues relevant to a 
full section 209(e) authorization analysis, by publication of a Federal 
Register notice on November 24, 2014.\29\ Specifically, we requested 
comment on: (a) Whether CARB's determination that its standards, in the 
aggregate, are at least as protective of public health and welfare as 
applicable federal standards is arbitrary and capricious, (b) whether 
California needs such standards to meet compelling and extraordinary 
conditions, and (c) whether California's standards and accompanying 
enforcement procedures are consistent with section 209 of the Act. In 
addition, EPA requested comment on issues relevant to a within-the-
scope analysis for any CARB amendments that may merit confirmation of 
being within the scope of EPA's prior authorization of the CHC 
regulation.
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    \29\ 79 FR 69482 (November 24, 2014).
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    EPA did not receive a request for hearing and therefore no hearing 
was held. EPA did not receive any written comments. EPA's evaluation is 
based on the record, which includes CARB's authorization request and 
accompanying documents.

II. Discussion

A. Within-the-Scope Analysis

    We initially evaluate California's Within-the-Scope Amendments by 
application of our traditional within-the-scope analysis, as CARB 
requested. If we determine that CARB's request does not meet the 
requirements for a within-the-scope determination, we then evaluate the 
request based on a full authorization analysis. In determining whether 
amendments can be viewed as

[[Page 6504]]

within the scope of previous authorizations, EPA looks at whether 
CARB's revisions have been limited to making minor technical amendments 
to previously waived regulations or modifying the regulations in order 
to provide manufacturers with additional compliance flexibilities 
without significantly reducing the overall stringency of the 
requirements.
    EPA sought comment on a range of issues, including those applicable 
to a within-the-scope analysis as well as those applicable to a full 
authorization analysis. No party submitted a comment that California's 
Within-the-Scope Amendments require a full authorization analysis. 
Given the lack of comments on this issue, and EPA's assessment of the 
nature of the amendments, EPA will evaluate California's Within-the-
Scope Amendments by application of our traditional within-the-scope 
analysis, as CARB requested.
    EPA can confirm that amended regulations are within the scope of a 
previously granted waiver of preemption if three conditions are met. 
First, the amended regulations must not undermine California's 
determination that its standards, in the aggregate, are as protective 
of public health and welfare as applicable federal standards. Second, 
the amended regulations must not affect consistency with section 202(a) 
of the Act. Third, the amended regulations must not raise any ``new 
issues'' affecting EPA's prior authorizations.

B. Full Authorization Analysis

    As noted above, CARB's authorization request also included the Full 
Authorization Amendments. EPA must grant an authorization of the Full 
Authorization Amendments unless the Administrator finds: (1) 
California's determination that its standards will be, in the 
aggregate, as protective of public health and welfare as applicable 
federal standards is arbitrary and capricious; (2) California does not 
need such California standards to meet compelling and extraordinary 
conditions; or (3) California's standards and accompanying enforcement 
procedures are not consistent with this section.
    EPA's evaluation of the CHC Amendments, including the Within-the-
Scope Amendments and Full Authorization Amendments, is set forth below. 
Because of the similarity of the within-the-scope criteria and the full 
authorization criteria, a discussion of both sets of the respective 
amendments take place within each authorization criterion. To the 
extent that the criteria are applied uniquely, or that additional 
criteria apply under either the within-the-scope analysis or the full 
authorization analysis, such application is also addressed below.

C. California's Protectiveness Determination

    Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that CARB was arbitrary and 
capricious in its determination that its standards are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards. CARB's Board made a protectiveness 
determination in Resolution 10-26, finding that ``the California 
emission standards and other requirements related to the control of 
emissions in the amended regulation are, in the aggregate, at least as 
protective of public health and welfare than applicable federal 
standards.'' \30\ CARB asserts that EPA has no basis to find that the 
CARB Board's determination is arbitrary or capricious.\31\ CARB points 
out that because the California and federal emission standards and test 
procedures for off-road CI engines are essentially aligned, and because 
California and federal off-road CI emission standards are generally 
more stringent than the equivalent federal marine engine emission 
standards, that EPA has no basis to find that the option to use the 
off-road CI engines would cause the CHC Amendments to be less 
protective.\32\ With respect to in-use engines, CARB maintains there is 
no question that the option of using EPA or CARB Tier 2 or higher tier 
certified off-road CI engines to meet the CHC regulation's in-use 
requirements are more stringent than applicable federal regulations, 
given that EPA is not authorized to regulate in-use off-road 
engines.\33\ In addition, CARB notes that the Within-the-Scope 
Amendments do not undermine the protectiveness determination made by 
EPA in granting the initially authorized CHC regulation. As explained 
above, CARB adopted the Within-the-Scope Amendments to accommodate 
implementation and compliance issues that have arisen under the 
original CHC regulations. Given that EPA has no authority to regulate 
in-use engines, CARB notes that it is indisputable that its in-use 
provisions are more stringent than non-existent ``applicable'' federal 
requirements.
---------------------------------------------------------------------------

    \30\ CARB Resolution 10-26, EPA-HQ-OAR-201-0534-0008.
    \31\ CARB Support Document at 7-8.
    \32\ Id. at 11. In addition, EPA's existing regulations for new 
marine diesel engines also allow the use of certified off-road land-
based engines in marine vessels.
    \33\ Id. at 12.
---------------------------------------------------------------------------

    After evaluating the materials submitted by CARB, and since EPA has 
not adopted any standards or requirements for in-use CHC engines and 
based on the lack of any comments submitted to the record, I cannot 
find that California's Within-the-Scope Amendments undermine 
California's previous determination that its standards, in the 
aggregate, are at least as protective of public health and welfare as 
applicable federal standards. Thus I cannot deny CARB's within-the-
scope request based on this criterion. Similarly, with regard to the 
Full Authorization Amendments I cannot make a finding that CARB's 
protectiveness determination is arbitrary and capricious and thus I 
cannot deny CARB's Full Authorization Amendments based on this 
criterion.

D. Need for California Standards To Meet Compelling and Extraordinary 
Conditions

    Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that California ``does not need such 
California standards to meet compelling and extraordinary conditions.'' 
EPA's inquiry under this second criterion (found both in paragraph 
209(b)(1)(B) and 209(e)(2)(A)(ii)) has been to determine whether 
California needs its own mobile source pollution program (i.e. set of 
standards) for the relevant class or category of vehicles or engines 
(e.g., on-highway mobile source or nonroad mobile source) to meet 
compelling and extraordinary conditions, and not whether the specific 
standards that are the subject of the authorization or waiver request 
are necessary to meet such conditions.\34\
---------------------------------------------------------------------------

    \34\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887-18890 
(May 3, 1984).
---------------------------------------------------------------------------

    California has asserted its longstanding position that the State 
continues to need its own nonroad engine program to meet serious air 
pollution problems.\35\ CARB notes that ``California, and particularly 
the South Coast and San Joaquin Valley Air Basins, continue to 
experience some of the worst air quality in the nation and continue to 
be in non-attainment with national ambient air quality standards for 
PM2.5 and ozone. The unique geographical and climatic 
conditions, and the tremendous growth in on and off-road vehicle 
population and use that moved Congress to authorize California to 
establish separate on-road motor vehicle standards in 1967 and off-road

[[Page 6505]]

engine standards in 1990 still exists today.\36\
---------------------------------------------------------------------------

    \35\ See Waiver Support Document at p. 18.
    \36\ Id. See 74 FR 32744, 32762-32763 (July 8, 2009); 79 FR 
6584, 6588-6590 (February 4, 2014).
---------------------------------------------------------------------------

    There has been no evidence submitted to indicate that California's 
compelling and extraordinary conditions do not continue to exist. 
California, including the South Coast and the San Joaquin Valley air 
basins, continues to experience some of the worst air quality in the 
nation and continues to be in non-attainment with national ambient air 
quality standards for fine particulate matter (PM2.5) and 
ozone.\37\ In addition, EPA is not aware of any other information that 
would suggest that California no longer needs its nonroad emission 
program.
---------------------------------------------------------------------------

    \37\ 74 FR 32744, 32762-63 (July 8, 2009), 76 FR 77515, 77518 
(December 13, 2011), 81 FR 95982 (December 29, 2016). EPA 
continually evaluates the air quality conditions in the United 
States, including California. California continues to experience 
some of the worst air quality in the country and continues to be in 
nonattainment with National Ambient Air Quality Standards for fine 
particulate matter and ozone, see ``Notice of Availability of the 
Environmental Protection Agency's Preliminary Interstate Ozone 
Transport Modeling Data for the 2015 Ozone National Ambient Air 
Quality Standard (NAAQS)'' at EPA-HQ-OAR-2016-0751.
---------------------------------------------------------------------------

    Therefore, based on the record of this request and absence of 
comments or other information to the contrary, I cannot find that 
California does not continue to need such state standards, including 
the CHC regulations, to address the ``compelling and extraordinary 
conditions'' underlying the state's air pollution problems. I have 
determined that I cannot deny California authorization for its Full 
Authorization Amendments under section 209(e)(2)(A)(ii). As noted 
above, EPA's within-the-scope analysis (that is applicable to the 
Within-the-Scope Amendments) does not require an assessment of section 
209(e)(2)(A)(ii).

E. Consistency With Section 209 of the Clean Air Act

    Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot 
grant an authorization if California's standards and enforcement 
procedures are not consistent with ``this section.'' As described 
above, EPA's section 209(e) rule states that the Administrator shall 
not grant authorization to California if she finds (among other tests) 
that the ``California standards and accompanying enforcement procedures 
are not consistent with section 209.'' EPA has interpreted this 
requirement to mean that California standards and accompanying 
enforcement procedures (under both the full authorization and the 
within-the-scope analysis) must be consistent with at least sections 
209(a), 209(e)(1), and 209(b)(1)(C), as EPA has interpreted this last 
subsection in the context of motor vehicle waivers. Thus, this can be 
viewed as a three-pronged test.
1. Consistency With Section 209(a) and 209(e)(1)
    To be consistent with section 209(a) of the Clean Air Act, 
California's commercial harbor craft regulations must not apply to new 
motor vehicles or new motor vehicle engines. California's commercial 
harbor craft regulations apply to nonroad marine vessels and engines, 
not on-highway motor vehicles or engines. CARB states that the new 
vessel requirements regulate new diesel engines, and apply only to 
nonroad engines that are neither new motor vehicles nor new motor 
vehicle engines. No commenter presented otherwise; therefore, I cannot 
deny California's request on the basis that California's commercial 
harbor craft regulations are not consistent with section 209(a).
    To be consistent with section 209(e)(1) of the Clean Air Act, 
California's commercial harbor craft regulations must not affect new 
farming or construction vehicles or engines that are below 175 
horsepower, or new locomotives or their engines. CARB represents that 
commercial harbor craft engines are not used in locomotives and are not 
primarily used in farm and construction equipment vehicles. No 
commenter presented otherwise and EPA is otherwise not aware of any 
information to the contrary; therefore, I cannot deny California's 
request on the basis that California's commercial harbor craft 
requirements are not consistent with section 209(e)(1).
2. Consistency With Section 209(b)(1)(C)
    The requirement that California's standards be consistent with 
section 209(b)(1)(C) of the Clean Air Act effectively requires 
consistency with section 202(a) of the Act. California standards are 
inconsistent with section 202(a) of the Act if there is inadequate 
lead-time to permit the development of technology necessary to meet 
those requirements, giving appropriate consideration to the cost of 
compliance within that time. California's accompanying enforcement 
procedures would also be inconsistent with section 202(a) if the 
federal and California test procedures were not consistent. The scope 
of EPA's review of whether California's action is consistent with 
section 202(a) is narrow. The determination is limited to whether those 
opposed to the authorization or waiver have met their burden of 
establishing that California's standards are technologically 
infeasible, or that California's test procedures impose requirements 
inconsistent with the federal test procedure.\38\
---------------------------------------------------------------------------

    \38\ MEMA I, 627, F.2d at 1126.
---------------------------------------------------------------------------

    Congress has stated that the consistency requirement of section 
202(a) relates to technological feasibility.\39\ Section 202(a)(2) 
states, in part, that any regulation promulgated under its authority 
``shall take effect after such period as the Administrator finds 
necessary to permit the development and application of the requisite 
technology, giving appropriate consideration to the cost of compliance 
within such period.'' Section 202(a) thus requires the Administrator to 
first determine whether adequate technology already exists; or if it 
does not, whether there is adequate time to develop and apply the 
technology before the standards go into effect. The latter scenario 
also requires the Administrator to decide whether the cost of 
developing and applying the technology within that time is feasible. 
Previous EPA waivers are in accord with this position.\40\
---------------------------------------------------------------------------

    \39\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \40\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
---------------------------------------------------------------------------

    As described above, the Full Authorization Amendments require in-
use Tier 0 and Tier 1 propulsion and auxiliary marine engines on crew 
and supply, barge, and dredge vessels to meet emission limits equal to 
or cleaner than federal Tier 2 or Tier 3 new marine engine 
certification standards in effect for the year that in-use engine 
compliance is required (based on the model year of the in-use engine 
and annual hours of operation). Vessel owners are provided the same 
compliance options that were available to owners of Tier 0 and Tier 1 
marine engines in the initial CHC regulations: (1) Replacing an in-use 
engine with a new marine engine certified to applicable Tier 2 or Tier 
3 marine standards, (2) demonstrating that the in-use marine engine 
already meets the most stringent Tier 2 or Tier 3 marine standards in 
effect for new engines of similar power rating and displacement, (e.g., 
utilizing engine rebuild kits or aftertreatment technologies), (3) 
demonstrating that an in-use marine engine has not and will not operate 
more than a specified number of hours per calendar year (300 hours for 
crew and supply vessel engines or 80 hours for barge and dredge vessel 
engines), or (4) using the flexibility provided through the exemptions 
and compliance extensions of the regulation. CARB

[[Page 6506]]

notes ``In granting California the authorization for the original CHC 
regulation, EPA stated that `no party objected to CARB's demonstration 
that [compliance] technologies are in existence and are being used in 
actual operation,' and also found no issue of incompatibility between 
California and federal test procedures.'' \41\ CARB also notes that the 
CHC Amendments now provide owners or operators the additional 
compliance flexibility option of using CARB or EPA Tier 2 or higher 
tier certified off-road CI engines to meet the requirements for 
auxiliary or propulsion engines, so owners or operators may also elect 
to comply with the amended in-use requirements by replacing an in-use 
engine with a new off-road engine, or by demonstrating that an existing 
in-use engine meets CARB or EPA Tier 2 or Tier 3 off-road CI engines 
standards (e.g., through utilization of engine rebuild kits or 
aftertreatment technologies).
---------------------------------------------------------------------------

    \41\ Waiver Support Document at 19 (citing EPA's authorization 
at 76 FR 77521, 77527 (December 13, 2011).
---------------------------------------------------------------------------

    CARB maintains that the Within-the-Scope Amendments present no 
issue regarding technical feasibility or inconsistent test procedures 
as the amendments only maintain or relax the stringency of the original 
CHC regulation's in-use requirements.
    EPA did not receive any comments suggesting that California's 
commercial harbor craft regulations are technologically infeasible.
    Therefore, based on the record before us, I cannot find that the 
CHC Amendments are technologically infeasible or otherwise inconsistent 
with section 202(a). Therefore, I cannot deny CARB's authorization 
request for the Full Authorization Amendments and likewise cannot deny 
the within-the-scope request for the Within-the-Scope Amendments based 
on the section 202(a) criterion.

F. New Issues

    EPA has stated in the past that if California promulgates 
amendments that raise new issues affecting previously granted waivers 
or authorizations, we would not confirm that those amendments are 
within the scope of previous authorizations.\42\ I do not believe that 
the Within-the-Scope Amendments raise any new issues with respect to 
our prior granting of the authorization. Moreover, EPA did not receive 
any comments that CARB's CHC Amendments raised new issues affecting the 
previously granted authorization. Therefore, I cannot find that CARB's 
Within-the-Scope Amendments raise new issues and consequently cannot 
deny CARB's request based on this criterion.
---------------------------------------------------------------------------

    \42\ See, e.g., 78 FR 38970 (June 28, 2013), 75 FR 8056 
(February 23, 2010), and 70 FR 22034 (April 28, 2005).
---------------------------------------------------------------------------

III. Decision

    After evaluating California's CHC Amendments and CARB's submissions 
for EPA review as described above, I am taking the following actions. 
First, I am granting an authorization for the Full Authorization 
Amendments. Second, I confirm that the Within-the-Scope Amendments are 
within-the scope of EPA's previous authorization.
    This decision will affect not only persons in California, but also 
manufacturers and/or owners/operators nationwide who must comply with 
California's requirements. In addition, because other states may adopt 
California's standards for which a section 209(e)(2)(A) authorization 
has been granted if certain criteria are met, this decision would also 
affect those states and those persons in such states. See CAA section 
209(e)(2)(B). For these reasons, EPA determines and finds that this is 
a final action of national applicability, and also a final action of 
nationwide scope or effect for purposes of section 307(b)(1) of the 
Act. Pursuant to section 307(b)(1) of the Act, judicial review of this 
final action may be sought only in the United States Court of Appeals 
for the District of Columbia Circuit. Petitions for review must be 
filed by March 20, 2017. Judicial review of this final action may not 
be obtained in subsequent enforcement proceedings, pursuant to section 
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

    As with past authorization and waiver decisions, this action is not 
a rule as defined by Executive Order 12866. Therefore, it is exempt 
from review by the Office of Management and Budget as required for 
rules and regulations by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a 
supporting regulatory flexibility analysis addressing the impact of 
this action on small business entities.
    Further, the Congressional Review Act, 5 U.S.C. 801, et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, does not apply because this action is not a rule for purposes of 
5 U.S.C. 804(3).

    Dated: January 11, 2017.
Gina McCarthy,
Administrator.
[FR Doc. 2017-01261 Filed 1-18-17; 8:45 am]
 BILLING CODE 6560-50-P



                                                  6500                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                     Several commenters from state                        organizations associated with nuclear                  EPA–HQ–OAR–2014–0534. All
                                                  emergency management agencies and                       power plant operations to use the PAG                  documents relied upon in making this
                                                  radiation control programs expressed                    Manual in developing their emergency                   decision, including those submitted to
                                                  support for EPA’s proposal, stating that                management plans. FEMA plans to                        EPA by CARB, are contained in the
                                                  the guidance was well developed and                     begin using the new PAG Manual                         public docket. Publicly available docket
                                                  technically sound; and that the                         during their evaluation of offsite                     materials are available either
                                                  incorporation of the drinking water PAG                 response organizations around nuclear                  electronically through
                                                  into the PAG Manual is a critical aspect                power facilities 12 months after the                   www.regulations.gov or in hard copy at
                                                  of a coordinated emergency response                     publication of this document in the                    the Air and Radiation Docket in the EPA
                                                  after a radiation contamination incident.               Federal Register.                                      Headquarters Library, EPA West
                                                     Some commenters suggested that                         For further information and related                  Building, Room 3334, located at 1301
                                                  while they support the incorporation of                 guidelines, see the EPA Web site: http://              Constitution Avenue NW., Washington,
                                                  the drinking water PAG, they believe                    www.epa.gov/radiation/protective-                      DC. The Public Reading Room is open
                                                  the proposed PAG was too conservative                   action-guides-pags. Keywords include:                  to the public on all federal government
                                                  and that EPA should consider                            drinking water, radiation, radiological                working days from 8:30 a.m. to 4:30
                                                  establishing the PAG in the 2,000 to                    incident, emergency and protective                     p.m.; generally, it is open Monday
                                                  10,000 mrem range.                                      action guide.                                          through Friday, excluding holidays. The
                                                     EPA believes that the drinking water                                                                        telephone number for the Reading Room
                                                                                                            Dated: January 10, 2017.
                                                  PAG should be consistent with and                                                                              is (202) 566–1744. The Air and
                                                  within the range of currently available                 Joel Beauvais,
                                                                                                                                                                 Radiation Docket and Information
                                                  guidance for other exposure pathways                    Deputy Assistant Administrator, Office of
                                                                                                          Water.                                                 Center’s Web site is http://www.epa.gov/
                                                  during the intermediate phase. Also,                                                                           oar/docket.html. The electronic mail
                                                  when possible, the drinking water PAG                   [FR Doc. 2017–01230 Filed 1–18–17; 8:45 am]
                                                                                                                                                                 (email) address for the Air and
                                                  recommendations should be based on                      BILLING CODE 6560–50–P
                                                                                                                                                                 Radiation Docket is: a-and-r-Docket@
                                                  an additional level of protection to                                                                           epa.gov, the telephone number is (202)
                                                  sensitive life-stages. For short-term                                                                          566–1742, and the fax number is (202)
                                                  incidents, as explained in the PAG                      ENVIRONMENTAL PROTECTION
                                                                                                          AGENCY                                                 566–9744. An electronic version of the
                                                  Manual, it is appropriate to have a 500                                                                        public docket is available through the
                                                  mrem PAG level for drinking water for                   [EPA–HQ–OAR–2014–0534; FRL–9958–62–                    federal government’s electronic public
                                                  the general population and a lower-tier                 OAR]                                                   docket and comment system. You may
                                                  PAG level of 100 mrem for persons at                                                                           access EPA dockets at http://
                                                  sensitive life-stages, including pregnant               California State Nonroad Engine
                                                                                                                                                                 www.regulations.gov. After opening the
                                                  women, nursing women, and children                      Pollution Control Standards;
                                                                                                                                                                 www.regulations.gov Web site, enter
                                                  15 years old and under. This approach                   Commercial Harbor Craft Regulations;
                                                                                                                                                                 EPA–HQ–OAR–2014–0534 in the ‘‘Enter
                                                  of setting a two-tier level of protection               Notice of Decision
                                                                                                                                                                 Keyword or ID’’ fill-in box to view
                                                  incorporates suggestions submitted by
                                                                                                          AGENCY: Environmental Protection                       documents in the record. Although a
                                                  commenters regarding the adequate
                                                                                                          Agency.                                                part of the official docket, the public
                                                  consideration of children and sensitive
                                                                                                          ACTION: Notice of decision.                            docket does not include Confidential
                                                  subpopulations.
                                                     There is an abundance of caution                                                                            Business Information (‘‘CBI’’) or other
                                                                                                          SUMMARY:   The Environmental Protection                information whose disclosure is
                                                  built into the derivation of the drinking
                                                                                                          Agency (‘‘EPA’’) is granting the                       restricted by statute.
                                                  water PAG through a variety of
                                                                                                          California Air Resources Board                            EPA’s Office of Transportation and
                                                  assumptions, including conservative
                                                                                                          (‘‘CARB’’) its request for an                          Air Quality (‘‘OTAQ’’) maintains a Web
                                                  dose-response modeling; selection of the
                                                                                                          authorization of its amendments to its                 page that contains general information
                                                  most sensitive life stages to derive the
                                                                                                          Commercial Harbor Craft regulations                    on its review of California waiver
                                                  PAG for children through age 15 years;
                                                                                                          (‘‘CHC Amendments’’). EPA is also                      requests. Included on that page are links
                                                  and, the assumption of no decay of
                                                                                                          confirming that certain CHC                            to prior waiver Federal Register notices,
                                                  isotopes over the calculated one-year
                                                                                                          amendments are within the scope of a                   some of which are cited in today’s
                                                  exposure period, which may be
                                                                                                          prior EPA authorization. CARB’s CHC                    notice. The page can be accessed at
                                                  appropriate in some situations. This
                                                                                                          Amendments primarily subject diesel-                   http://www.epa.gov/otaq/cafr.htm.
                                                  action ensures that the protective
                                                                                                          fueled engines on crew and supply,                     FOR FURTHER INFORMATION CONTACT:
                                                  measures it recommends are appropriate
                                                                                                          barge and dredge vessels to the in-use                 David Dickinson, Attorney-Advisor,
                                                  for all members of the public, including
                                                                                                          engine emission requirements of the                    Transportation Climate Division, Office
                                                  sensitive subpopulations.
                                                                                                          original CHC regulations; allow CARB                   of Transportation and Air Quality, U.S.
                                                  E. What is the timeframe for                            or EPA Tier 2 or higher tier certified off-            Environmental Protection Agency, 1200
                                                  implementation of this PAG Manual?                      road (‘‘nonroad’’) engines to be used as               Pennsylvania Avenue (6405J), NW.,
                                                    Emergency management and radiation                    auxiliary or propulsion engines in both                Washington, DC 20460. Telephone:
                                                  protection organizations that use the                   new and in-use CHC vessels; and clarify                (202) 343–9256. Fax: (202) 343–2800.
                                                  PAGs in their emergency plans are                       requirements and address certain issues                Email: Dickinson.David@epa.gov.
                                                  encouraged to incorporate this updated                  that have arisen during CARB’s
                                                                                                                                                                 SUPPLEMENTARY INFORMATION:
                                                  guidance as soon as possible. This may                  implementation of the original CHC
mstockstill on DSK3G9T082PROD with NOTICES




                                                  entail training, as well as the update of               regulations. This decision is issued                   I. Background
                                                  plans and procedures. Outreach and                      under the authority of the Clean Air Act                 EPA granted an authorization for
                                                  technical training will be conducted by                 (‘‘CAA’’ or ‘‘Act’’).                                  California’s initial set of CHC
                                                  EPA, the Federal Radiological                           DATES: Petitions for review must be filed              regulations on December 5, 2011.1
                                                  Monitoring and Assessment Center and                    by March 20, 2017.                                     California’s initial CHC regulations
                                                  interagency partners of the PAG                         ADDRESSES: EPA has established a
                                                  Subcommittee. FEMA expects certain                      docket for this action under Docket ID                   1 76   FR 77521 (December 5, 2011).



                                             VerDate Sep<11>2014   21:20 Jan 18, 2017   Jkt 241001   PO 00000   Frm 00019   Fmt 4703   Sfmt 4703   E:\FR\FM\19JAN1.SGM     19JAN1


                                                                                Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                                     6501

                                                  established emission standards,                           Amendments also eliminate certain                     requested an EPA determination that
                                                  requirements related to the control of                    exemptions for CHC engines that had                   certain provisions of the CHC
                                                  emissions, and enforcement provisions.                    been registered in CARB’s portable                    Amendments are within the scope of a
                                                  The requirements are applicable to                        equipment registration program                        prior authorization issued by EPA, or in
                                                  diesel propulsion and auxiliary engines                   (‘‘PERP’’) or permitted by local air                  the alternative, merit full authorization
                                                  on new and in-use commercial harbor                       pollution districts, and now subject                  (‘‘Within-the-Scope Amendments’’).
                                                  craft, with some exceptions.                              such engines to the CHC regulations. In               CARB includes as part of the Within-
                                                  Commercial harbor craft include a                         addition, the CHC Amendments clarify                  the-Scope Amendments: The provisions
                                                  variety of different types of vessels,                    and define ‘‘swing engines’’ as                       allowing use of EPA or CARB certified
                                                  including ferries, excursion vessels,                     replacement engines that are maintained               off-road CI engines to comply with the
                                                  tugboats, towboats, and commercial and                    at dockside locations and require such                new and in-use requirements for
                                                  charter fishing boats. The initial CHC                    engines to comply with the CHC                        propulsion and/or auxiliary engines; the
                                                  regulations established in-use emission                   regulation’s in-use engine requirements.              amendments that subject CHC engines
                                                  limits for in-use ferries, excursion                      The original CHC regulations required                 registered and permitted by local air
                                                  vessels, tugboats, and towboats                           replacement engines for in-use CHC                    pollution districts prior to January 1,
                                                  equipped with federal Tier 0 and Tier 1                   vessels to be certified to current EPA                2009, CHC auxiliary engines registered
                                                  propulsion and auxiliary marine                           model year engines standards. CARB                    to CARB’s PERP prior to January 1,
                                                  engines. Owners and operators of these                    found this requirement could present                  2009, and CHC auxiliary engines not
                                                  vessels were required to upgrade the                      difficulties for in-use CHC vessels in                permanently affixed to the vessel and
                                                  engines to meet emission limits equal to                  certain situations. Therefore, the CHC                registered in PERP on or after January 1,
                                                  or cleaner than federal Tier 2 or Tier 3                  Amendments allow an owner or                          2009 to the CHC Regulation; and the
                                                  marine engine certification standards,                    operator to use a non-current-year                    amendments that clarify swing engines
                                                  according to a compliance schedule that                   certified replacement engine under                    are replacement engines subject to the
                                                  was also set forth in the regulations. The                certain circumstances. In addition, the               CHC regulation’s in-use requirements,
                                                  compliance schedule was based on the                      CHC Amendments allow the use of                       along with the exemptions for
                                                  model year of the original engine (‘‘in-                  existing engines in a fleet to replace an             replacement engines in in-use CHC
                                                  use engine model year’’), its hours of                    older engine otherwise subject to the in-             vessels, the allowance of the use of
                                                  operation, and the vessel’s home port                     use requirements (the existing engine                 existing engines to replace an older
                                                  location. The CHC regulations apply                       becomes subject to the in-use                         engine subject to in-use requirements,
                                                  separately to new and in-use engines                      compliance date that applied to the                   and the expansion of the availability of
                                                  used on harbor craft.2                                    engine being replaced). The CHC                       compliance extensions for CHC vessel
                                                    In a letter dated May 28, 2014, CARB                    Amendments also expand the                            fleets.
                                                  submitted to EPA its request pursuant to                  compliance extension options to fleets                   Second, CARB requests full
                                                  section 209(e) of the CAA, regarding                      of three or more vessels.                             authorization for amendments that
                                                  authorization of its amendments to                           CARB’s CHC Amendments also                         establish new requirements (‘‘Full
                                                  California’s CHC regulations to reduce                    include requirements that are applicable              Authorization Amendments’’). The Full
                                                  emissions from diesel engines on                          to both new and in-use engines. The                   Authorization Amendments pertain to
                                                  commercial harbor craft (‘‘CHC                            original CHC regulation provided that                 the new provisions establishing in-use
                                                  Amendments’’).3 The CARB Board                            new or in-use diesel propulsion or                    requirements applicable to crew and
                                                                                                            auxiliary engines for in-use harbor craft             supply, barge, and dredge vessels. The
                                                  approved the CHC Amendments on June
                                                                                                            could not be sold, offered for sale,                  amendments extend the applicability of
                                                  24, 2010 (by Resolution 10–26).4
                                                                                                            leased, rented, or acquired unless the                the previous requirement that specified
                                                    The CHC Amendments set forth a
                                                                                                            engines were certified to at least federal            categories of CHC vessels (ferries,
                                                  variety of in-use requirements,
                                                                                                            Tier 2 or Tier 3 marine emission                      excursions vessels tugboats, towboats,
                                                  including extending the applicability of
                                                                                                            standards for a new engine of the same                push boats, and multipurpose harbor
                                                  the CHC regulations to in-use crew and
                                                                                                            power rating and displacement in effect               craft) to meet emission limits equal to or
                                                  supply, barge, and dredge vessels that
                                                                                                            at the time of the aforementioned                     cleaner than federal Tier 2 or Tier 3 new
                                                  are equipped with federal Tier 0 and
                                                                                                            actions. The amendments now provide                   marine engine emission standards, as
                                                  Tier 1 propulsion and auxiliary marine
                                                                                                            compliance flexibility to CHC owners or               applicable and in effect for the year that
                                                  engines that operate within the                           operators with the option of using EPA
                                                  Regulated California Waters.5 The CHC                                                                           in-use engine compliance is required
                                                                                                            or CARB Tier 2 or higher tier certified               under the compliance schedule set forth
                                                     2 The regulations are codified at title 13,
                                                                                                            off-road engines provided the engine or               within the regulation.
                                                  California Code of Regulations (CCR), section             vessel manufacturer has complied with
                                                  2229.5 and title 17, CCR section 93118.5.                 the provisions of 40 CFR 1042.605,                    B. Clean Air Act Nonroad Engine and
                                                     3 Letter and attached memo from Richard Corey,         which establishes requirements for                    Vehicle Authorizations
                                                  CARB to Gina McCarthy, EPA dated May 28, 2014             marinized land-based engines.                           Section 209(e)(1) of the Act
                                                  (‘‘Waiver Support Document’’), EPA–HQ–OAR–
                                                  2014–0534–0002.                                           A. California’s Authorization Request                 permanently preempts any state, or
                                                     4 CARB Resolution 10–26, June 24, 2010, EPA–                                                                 political subdivision thereof, from
                                                  HQ–OAR–2014–0534–0008.                                      California requested that EPA perform               adopting or attempting to enforce any
                                                     5 Regulated California Waters include all              two types of review. First, CARB                      standard or other requirement relating
                                                  California inland waters, all California estuarine                                                              to the control of emissions for certain
                                                  waters, and all waters within a zone 24 nautical          use engine compliance was required. The
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                                                  miles seaward of the California coastline, except for     compliance schedule was based on the in-use
                                                                                                                                                                  new nonroad engines or vehicles.6 For
                                                  specified areas along the Southern California             engine model year, hours of operation, and the
                                                  coastline, Title 17 CCR 93118.5(d)(68). The original      vessel’s home port location. The amendments              6 States are expressly preempted from adopting or

                                                  CHC regulations required owners or operators of in-       establish compliance schedules applicable to crew     attempting to enforce any standard or other
                                                  use ferries, excursion vessels, and tugboats              and supply vessel engines and a separate set of       requirement relating to the control of emissions
                                                  equipped with Tier 0 and Tier 1 propulsion and            compliance schedules applicable to both barge and     from new nonroad engines which are used in
                                                  auxiliary marine engines to meet equal to or cleaner      dredge vessel engines that are based solely on the    construction equipment or vehicles or used in farm
                                                  than federal Tier 2 or Tier 3 new marine engine           in-use engine model year and annual hours of          equipment or vehicles and which are smaller than
                                                  certification standards in effect for the year that in-   operation.                                                                                       Continued




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                                                  6502                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  all other nonroad engines, states                       enforcement procedures be consistent                     California’s decision-making be narrow.
                                                  generally are preempted from adopting                   with section 209(a), section 209(e)(1),                  EPA has rejected arguments that are not
                                                  and enforcing standards and other                       and section 209(b)(1)(C) of the Act.10                   specified in the statute as grounds for
                                                  requirements relating to the control of                   In order to be consistent with section                 denying a waiver:
                                                  emissions. Section 209(e)(2), however,                  209(a), California’s nonroad standards                      The law makes it clear that the waiver
                                                  requires the Administrator, after notice                and enforcement procedures must not                      requests cannot be denied unless the specific
                                                  and opportunity for public hearing, to                  apply to new motor vehicles or new                       findings designated in the statute can
                                                  authorize California to adopt and                       motor vehicle engines. To be consistent                  properly be made. The issue of whether a
                                                  enforce standards and other                             with section 209(e)(1), California’s                     proposed California requirement is likely to
                                                  requirements relating to the control of                 nonroad standards and enforcement                        result in only marginal improvement in
                                                  emissions from such vehicles or engines                 procedures must not attempt to regulate                  California air quality not commensurate with
                                                                                                          engine categories that are permanently                   its costs or is otherwise an arguably unwise
                                                  if California determines that California                                                                         exercise of regulatory power is not legally
                                                  standards will be, in the aggregate, at                 preempted from state regulation. To                      pertinent to my decision under section 209,
                                                  least as protective of public health and                determine consistency with section                       so long as the California requirement is
                                                  welfare as applicable Federal standards.                209(b)(1)(C), EPA typically reviews                      consistent with section 202(a) and is more
                                                  However, EPA shall not grant such                       nonroad authorization requests under                     stringent than applicable Federal
                                                  authorization if it finds that (1) the                  the same ‘‘consistency’’ criteria that are               requirements in the sense that it may result
                                                  determination of California is arbitrary                applied to motor vehicle waiver                          in some further reduction in air pollution in
                                                  and capricious; (2) California does not                 requests under section 209(b)(1)(C).                     California.15
                                                  need such California standards to meet                  That provision provides that the                            This principle of narrow EPA review
                                                  compelling and extraordinary                            Administrator shall not grant California                 has been upheld by the U.S. Court of
                                                  conditions; or (3) California standards                 a motor vehicle waiver if she finds that                 Appeals for the District of Columbia
                                                  and accompanying enforcement                            California ‘‘standards and                               Circuit.16 Thus, EPA’s consideration of
                                                  procedures are not consistent with                      accompanying enforcement procedures                      all the evidence submitted concerning
                                                  [CAA section 209].7                                     are not consistent with section 202(a)’’                 an authorization decision is
                                                     On July 20, 1994, EPA promulgated a                  of the Act. Previous decisions granting                  circumscribed by its relevance to those
                                                  rule interpreting the three criteria set                waivers and authorizations have noted                    questions that may be considered under
                                                  forth in section 209(e)(2)(A) that EPA                  that state standards and enforcement                     section 209(e)(2)(A).
                                                  must consider before granting any                       procedures will be found to be
                                                  California authorization request for                    inconsistent with section 202(a) if (1)                  B. Within-the-Scope Determinations
                                                  nonroad engine or vehicle emission                      there is inadequate lead time to permit                     If California amends regulations that
                                                  standards.8 EPA revised these                           the development of the necessary                         were previously authorized by EPA,
                                                  regulations in 1997.9 As stated in the                  technology, giving appropriate                           California may ask EPA to determine
                                                  preamble to the 1994 rule, EPA                          consideration to the cost of compliance                  that the amendments are within the
                                                  historically has interpreted the                        within that time,11 or (2) the federal and               scope of the earlier authorization. A
                                                  consistency inquiry under the third                     state testing procedures impose                          within-the-scope determination for such
                                                  criterion, outlined above and set forth in              inconsistent certification                               amendments is permissible without a
                                                  section 209(e)(2)(A)(iii), to require, at               requirements.12                                          full authorization if three conditions are
                                                  minimum, that California standards and                    In light of the similar language in                    met. First, the amended regulations
                                                                                                          sections 209(b) and 209(e)(2)(A), EPA                    must not undermine California’s
                                                  175 horsepower. Such express preemption under           has reviewed California’s requests for                   previous determination that its
                                                  section 209(e)(1) of the Act also applies to new        authorization of nonroad vehicle or                      standards, in the aggregate, are as
                                                  locomotives or new engines used in locomotives.         engine standards under section
                                                  CAA § 209(e)(1), 42 U.S.C. 7543(e)(1)(A).
                                                                                                                                                                   protective of public health and welfare
                                                    7 EPA’s review of California regulations under
                                                                                                          209(e)(2)(A) using the same principles                   as applicable federal standards. Second,
                                                  section 209 is not a broad review of the
                                                                                                          that it has historically applied in                      the amended regulations must not affect
                                                  reasonableness of the regulations or its                reviewing requests for waivers of                        consistency with section 209 of the Act,
                                                  compatibility with all other laws. Sections 209(b)      preemption for new motor vehicle or                      following the same criteria discussed
                                                  and 209(e) of the Clean Air Act limit EPA’s             new motor vehicle engine standards
                                                  authority to deny California requests for waivers                                                                above in the context of full
                                                  and authorizations to the three criteria listed
                                                                                                          under section 209(b).13 These principles                 authorizations. Third, the amended
                                                  therein. As a result, EPA has consistently refrained    include, among other things, that EPA                    regulations must not raise any ‘‘new
                                                  from denying California’s requests for waivers and      should limit its inquiry to the three                    issues’’ affecting EPA’s prior
                                                  authorizations based on any other criteria. In          specific authorization criteria identified
                                                  instances where the U.S. Court of Appeals has                                                                    authorizations.17
                                                                                                          in section 209(e)(2)(A),14 and that EPA
                                                  reviewed EPA decisions declining to deny waiver
                                                  requests based on criteria not found in section         should give substantial deference to the                   15 ‘‘Waiver of Application of Clean Air Act to

                                                  209(b), the Court has upheld and agreed with EPA’s      policy judgments California has made in                  California State Standards,’’ 36 FR 17458 (Aug. 31,
                                                  determination. See Motor and Equipment                  adopting its regulations. In previous                    1971). Note that the more stringent standard
                                                  Manufacturers Ass’n v. Nichols, 142 F.3d 449, 462–      waiver decisions, EPA has stated that                    expressed here, in 1971, was superseded by the
                                                  63, 466–67 (D.C. Cir. 1998), Motor and Equipment                                                                 1977 amendments to section 209, which established
                                                  Manufacturers Ass’n v. EPA, 627 F.2d 1095, 1111,        Congress intended EPA’s review of                        that California must determine that its standards
                                                  1114–20 (D.C. Cir. 1979). See also 78 FR 58090,                                                                  are, in the aggregate, at least as protective of public
                                                  58120 (September 20, 2013).                               10 59 FR 36969 (July 20, 1994). EPA has                health and welfare as applicable Federal standards.
                                                    8 See ‘‘Air Pollution Control; Preemption of State    interpreted 209(b)(1)(C) in the context of section       In the 1990 amendments to section 209, Congress
                                                  Regulation for Nonroad Engine and Vehicle               209(b) motor vehicle waivers.                            established section 209(e) and similar language in
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                                                  Standards,’’ 59 FR 36969 (July 20, 1994).                 11 H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).   section 209(e)(1)(i) pertaining to California’s
                                                    9 See ‘‘Control of Air Pollution: Emission              12 S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).   nonroad emission standards which California must
                                                  Standards for New Nonroad Compression-Ignition            13 See Engine Manufacturers Association v. EPA,        determine to be, in the aggregate, at least as
                                                  Engines at or Above 37 Kilowatts; Preemption of         88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was     protective of public health and welfare as
                                                  State Regulation for Nonroad Engine and Vehicle         within the bounds of permissible construction in         applicable federal standards.
                                                                                                                                                                     16 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA,
                                                  Standards; Amendments to Rules,’’ 62 FR 67733           analogizing § 209(e) on nonroad sources to § 209(a)
                                                  (December 30, 1997). The applicable regulations are     on motor vehicles.’’                                     627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’).
                                                  now found in 40 CFR part 1074, subpart B, section         14 See EPA’s Final 209(e) rulemaking at 59 FR            17 See ‘‘California State Motor Vehicle Pollution

                                                  1074.105.                                               36969, 36983 (July 20, 1994).                            Control Standards; Amendments Within the Scope



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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                                     6503

                                                  C. Deference to California                              opponents of a waiver request by                        proceedings, but found that the
                                                    In previous waiver and authorization                  California bear the burden of showing                   opponents of the waiver were unable to
                                                  decisions, EPA has recognized that the                  that the statutory criteria for a denial of             meet their burden of proof even if the
                                                  intent of Congress in creating a limited                the request have been met:                              standard were a mere preponderance of
                                                  review based on the section 209(b)(1)                   [T]he language of the statute and its                   the evidence. EPA’s past waiver
                                                  criteria was to ensure that the federal                 legislative history indicate that California’s          decisions have consistently made clear
                                                  government did not second-guess state                   regulations, and California’s determinations            that: ‘‘[E]ven in the two areas
                                                  policy choices. As the agency explained                 that they must comply with the statute, when            concededly reserved for Federal
                                                                                                          presented to the Administrator are presumed             judgment by this legislation—the
                                                  in one prior waiver decision:                           to satisfy the waiver requirements and that             existence of ‘compelling and
                                                     It is worth noting . . . I would feel                the burden of proving otherwise is on                   extraordinary’ conditions and whether
                                                  constrained to approve a California approach            whoever attacks them. California must
                                                  to the problem which I might also feel unable           present its regulations and findings at the
                                                                                                                                                                  the standards are technologically
                                                  to adopt at the federal level in my own                 hearing and thereafter the parties opposing             feasible—Congress intended that the
                                                  capacity as a regulator. The whole approach             the waiver request bear the burden of                   standards of EPA review of the State
                                                  of the Clean Air Act is to force the                    persuading the Administrator that the waiver            decision to be a narrow one.’’ 28
                                                  development of new types of emission                    request should be denied.22
                                                  control technology where that is needed by                                                                      E. EPA’s Administrative Process in
                                                                                                             The same logic applies to                            Consideration of California’s
                                                  compelling the industry to ‘‘catch up’’ to
                                                  some degree with newly promulgated                      authorization requests. The                             Commercial Harbor Craft Regulations
                                                  standards. Such an approach . . . may be                Administrator’s burden, on the other
                                                                                                                                                                     Upon review of CARB’s request, EPA
                                                  attended with costs, in the shape of reduced            hand, is to make a reasonable evaluation
                                                                                                                                                                  offered an opportunity for a public
                                                  product offering, or price or fuel economy              of the information in the record in
                                                  penalties, and by risks that a wider number                                                                     hearing, and requested written comment
                                                                                                          coming to the waiver decision. As the
                                                  of vehicle classes may not be able to                                                                           on issues relevant to a full section
                                                                                                          court in MEMA I stated: ‘‘here, too, if the
                                                  complete their development work in time.                                                                        209(e) authorization analysis, by
                                                                                                          Administrator ignores evidence                          publication of a Federal Register notice
                                                  Since a balancing of these risks and costs
                                                  against the potential benefits from reduced             demonstrating that the waiver should                    on November 24, 2014.29 Specifically,
                                                  emissions is a central policy decision for any          not be granted, or if he seeks to                       we requested comment on: (a) Whether
                                                  regulatory agency under the statutory scheme            overcome that evidence with                             CARB’s determination that its
                                                  outlined above, I believe I am required to              unsupported assumptions of his own,                     standards, in the aggregate, are at least
                                                  give very substantial deference to California’s         he runs the risk of having his waiver
                                                  judgments on this score.18                                                                                      as protective of public health and
                                                                                                          decision set aside as ‘arbitrary and                    welfare as applicable federal standards
                                                     Similarly, EPA has stated that the                   capricious.’ ’’ 23 Therefore, the                       is arbitrary and capricious, (b) whether
                                                  text, structure, and history of the                     Administrator’s burden is to act                        California needs such standards to meet
                                                  California waiver provision clearly                     ‘‘reasonably.’’ 24                                      compelling and extraordinary
                                                  indicate both a congressional intent and                   With regard to the standard of proof,
                                                                                                                                                                  conditions, and (c) whether California’s
                                                  appropriate EPA practice of leaving the                 the court in MEMA I explained that the
                                                                                                                                                                  standards and accompanying
                                                  decision on ‘‘ambiguous and                             Administrator’s role in a section 209
                                                                                                                                                                  enforcement procedures are consistent
                                                  controversial matters of public policy’’                proceeding is to:
                                                                                                                                                                  with section 209 of the Act. In addition,
                                                  to California’s judgment.19 This                        [ . . . ] consider all evidence that passes the         EPA requested comment on issues
                                                  interpretation is supported by relevant                 threshold test of materiality and . . .                 relevant to a within-the-scope analysis
                                                  discussion in the House Committee                       thereafter assess such material evidence
                                                                                                          against a standard of proof to determine
                                                                                                                                                                  for any CARB amendments that may
                                                  Report for the 1977 amendments to the                                                                           merit confirmation of being within the
                                                  Clean Air Act.20 Congress had the                       whether the parties favoring a denial of the
                                                                                                          waiver have shown that the factual                      scope of EPA’s prior authorization of the
                                                  opportunity through the 1977                            circumstances exist in which Congress                   CHC regulation.
                                                  amendments to restrict the preexisting                  intended a denial of the waiver.25                         EPA did not receive a request for
                                                  waiver provision, but elected instead to                                                                        hearing and therefore no hearing was
                                                  expand California’s flexibility to adopt a                 With regard to the protectiveness
                                                                                                          finding, the court upheld the                           held. EPA did not receive any written
                                                  complete program of motor vehicle                                                                               comments. EPA’s evaluation is based on
                                                  emission controls. The report explains                  Administrator’s position that, to deny a
                                                                                                          waiver, there must be ‘‘clear and                       the record, which includes CARB’s
                                                  that the amendment is intended to ratify                                                                        authorization request and
                                                  and strengthen the preexisting                          compelling evidence’’ to show that
                                                                                                          proposed enforcement procedures                         accompanying documents.
                                                  California waiver provision and to
                                                  affirm the underlying intent of that                    undermine the protectiveness of                         II. Discussion
                                                  provision, that is, to afford California                California’s standards.26 The court
                                                                                                          noted that this standard of proof also                  A. Within-the-Scope Analysis
                                                  the broadest possible discretion in
                                                                                                          accords with the congressional intent to                   We initially evaluate California’s
                                                  selecting the best means to protect the
                                                                                                          provide California with the broadest                    Within-the-Scope Amendments by
                                                  health of its citizens and the public
                                                                                                          possible discretion in setting regulations              application of our traditional within-
                                                  welfare.21
                                                                                                          it finds protective of the public health                the-scope analysis, as CARB requested.
                                                  D. Burden and Standard of Proof                         and welfare.27                                          If we determine that CARB’s request
                                                    As the U.S. Court of Appeals for the                     With respect to the consistency                      does not meet the requirements for a
                                                  D.C. Circuit has made clear in MEMA I,                  finding, the court did not articulate a                 within-the-scope determination, we
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                                                                                                          standard of proof applicable to all                     then evaluate the request based on a full
                                                  of Previous Waiver of Federal Preemption,’’ 46 FR                                                               authorization analysis. In determining
                                                  36742 (July15, 1981).                                     22 MEMA    I, supra note 17, at 1121.                 whether amendments can be viewed as
                                                    18 40 FR 23102, 23103–23104 (May 28, 1975).             23 Id. at 1126.
                                                    19 Id. at 23104; 58 FR 4166 (January 13, 1993).         24 Id. at 1126.                                         28 See, e.g., ‘‘California State Motor Vehicle
                                                    20 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No.       25 Id. at 1122.
                                                                                                                                                                  Pollution Control Standards; Waiver of Federal
                                                  294, 95th Cong., 1st Sess. 301–302 (1977)).               26 Id.                                                Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103.
                                                    21 Id.                                                  27 Id.                                                  29 79 FR 69482 (November 24, 2014).




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                                                  6504                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  within the scope of previous                            criteria apply under either the within-                   existent ‘‘applicable’’ federal
                                                  authorizations, EPA looks at whether                    the-scope analysis or the full                            requirements.
                                                  CARB’s revisions have been limited to                   authorization analysis, such application                    After evaluating the materials
                                                  making minor technical amendments to                    is also addressed below.                                  submitted by CARB, and since EPA has
                                                  previously waived regulations or                                                                                  not adopted any standards or
                                                                                                          C. California’s Protectiveness                            requirements for in-use CHC engines
                                                  modifying the regulations in order to
                                                                                                          Determination                                             and based on the lack of any comments
                                                  provide manufacturers with additional
                                                  compliance flexibilities without                           Section 209(e)(2)(i) of the Act                        submitted to the record, I cannot find
                                                  significantly reducing the overall                      instructs that EPA cannot grant an                        that California’s Within-the-Scope
                                                  stringency of the requirements.                         authorization if the agency finds that                    Amendments undermine California’s
                                                     EPA sought comment on a range of                     CARB was arbitrary and capricious in                      previous determination that its
                                                  issues, including those applicable to a                 its determination that its standards are,                 standards, in the aggregate, are at least
                                                  within-the-scope analysis as well as                    in the aggregate, at least as protective of               as protective of public health and
                                                  those applicable to a full authorization                public health and welfare as applicable                   welfare as applicable federal standards.
                                                  analysis. No party submitted a comment                  federal standards. CARB’s Board made a                    Thus I cannot deny CARB’s within-the-
                                                  that California’s Within-the-Scope                      protectiveness determination in                           scope request based on this criterion.
                                                  Amendments require a full                               Resolution 10–26, finding that ‘‘the                      Similarly, with regard to the Full
                                                  authorization analysis. Given the lack of               California emission standards and other                   Authorization Amendments I cannot
                                                  comments on this issue, and EPA’s                       requirements related to the control of                    make a finding that CARB’s
                                                  assessment of the nature of the                         emissions in the amended regulation                       protectiveness determination is arbitrary
                                                  amendments, EPA will evaluate                           are, in the aggregate, at least as                        and capricious and thus I cannot deny
                                                  California’s Within-the-Scope                           protective of public health and welfare                   CARB’s Full Authorization
                                                  Amendments by application of our                        than applicable federal standards.’’ 30                   Amendments based on this criterion.
                                                  traditional within-the-scope analysis, as               CARB asserts that EPA has no basis to
                                                  CARB requested.                                         find that the CARB Board’s                                D. Need for California Standards To
                                                     EPA can confirm that amended                         determination is arbitrary or                             Meet Compelling and Extraordinary
                                                  regulations are within the scope of a                   capricious.31 CARB points out that                        Conditions
                                                  previously granted waiver of                            because the California and federal                           Section 209(e)(2)(ii) of the Act
                                                  preemption if three conditions are met.                 emission standards and test procedures                    instructs that EPA cannot grant an
                                                  First, the amended regulations must not                 for off-road CI engines are essentially                   authorization if the agency finds that
                                                  undermine California’s determination                    aligned, and because California and                       California ‘‘does not need such
                                                  that its standards, in the aggregate, are               federal off-road CI emission standards                    California standards to meet compelling
                                                  as protective of public health and                      are generally more stringent than the                     and extraordinary conditions.’’ EPA’s
                                                  welfare as applicable federal standards.                equivalent federal marine engine                          inquiry under this second criterion
                                                  Second, the amended regulations must                    emission standards, that EPA has no                       (found both in paragraph 209(b)(1)(B)
                                                  not affect consistency with section                     basis to find that the option to use the                  and 209(e)(2)(A)(ii)) has been to
                                                  202(a) of the Act. Third, the amended                   off-road CI engines would cause the                       determine whether California needs its
                                                  regulations must not raise any ‘‘new                    CHC Amendments to be less                                 own mobile source pollution program
                                                  issues’’ affecting EPA’s prior                          protective.32 With respect to in-use                      (i.e. set of standards) for the relevant
                                                  authorizations.                                         engines, CARB maintains there is no                       class or category of vehicles or engines
                                                                                                          question that the option of using EPA or                  (e.g., on-highway mobile source or
                                                  B. Full Authorization Analysis
                                                                                                          CARB Tier 2 or higher tier certified off-                 nonroad mobile source) to meet
                                                    As noted above, CARB’s authorization                  road CI engines to meet the CHC                           compelling and extraordinary
                                                  request also included the Full                          regulation’s in-use requirements are                      conditions, and not whether the specific
                                                  Authorization Amendments. EPA must                      more stringent than applicable federal                    standards that are the subject of the
                                                  grant an authorization of the Full                      regulations, given that EPA is not                        authorization or waiver request are
                                                  Authorization Amendments unless the                     authorized to regulate in-use off-road                    necessary to meet such conditions.34
                                                  Administrator finds: (1) California’s                   engines.33 In addition, CARB notes that                      California has asserted its
                                                  determination that its standards will be,               the Within-the-Scope Amendments do                        longstanding position that the State
                                                  in the aggregate, as protective of public               not undermine the protectiveness                          continues to need its own nonroad
                                                  health and welfare as applicable federal                determination made by EPA in granting                     engine program to meet serious air
                                                  standards is arbitrary and capricious; (2)              the initially authorized CHC regulation.                  pollution problems.35 CARB notes that
                                                  California does not need such California                As explained above, CARB adopted the                      ‘‘California, and particularly the South
                                                  standards to meet compelling and                        Within-the-Scope Amendments to                            Coast and San Joaquin Valley Air
                                                  extraordinary conditions; or (3)                        accommodate implementation and                            Basins, continue to experience some of
                                                  California’s standards and                              compliance issues that have arisen                        the worst air quality in the nation and
                                                  accompanying enforcement procedures                     under the original CHC regulations.                       continue to be in non-attainment with
                                                  are not consistent with this section.                   Given that EPA has no authority to                        national ambient air quality standards
                                                    EPA’s evaluation of the CHC                           regulate in-use engines, CARB notes that                  for PM2.5 and ozone. The unique
                                                  Amendments, including the Within-the-                   it is indisputable that its in-use                        geographical and climatic conditions,
                                                  Scope Amendments and Full                               provisions are more stringent than non-                   and the tremendous growth in on and
                                                  Authorization Amendments, is set forth
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                                                                                                                                                                    off-road vehicle population and use that
                                                  below. Because of the similarity of the                   30 CARB Resolution 10–26, EPA–HQ–OAR–201–
                                                                                                                                                                    moved Congress to authorize California
                                                  within-the-scope criteria and the full                  0534–0008.
                                                                                                                                                                    to establish separate on-road motor
                                                                                                            31 CARB Support Document at 7–8.
                                                  authorization criteria, a discussion of                                                                           vehicle standards in 1967 and off-road
                                                                                                            32 Id. at 11. In addition, EPA’s existing regulations
                                                  both sets of the respective amendments
                                                                                                          for new marine diesel engines also allow the use of
                                                  take place within each authorization                    certified off-road land-based engines in marine             34 See 74 FR 32744, 32761 (July 8, 2009); 49 FR
                                                  criterion. To the extent that the criteria              vessels.                                                  18887–18890 (May 3, 1984).
                                                  are applied uniquely, or that additional                  33 Id. at 12.                                             35 See Waiver Support Document at p. 18.




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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                                        6505

                                                  engine standards in 1990 still exists                   209(e)(1), and 209(b)(1)(C), as EPA has                establishing that California’s standards
                                                  today.36                                                interpreted this last subsection in the                are technologically infeasible, or that
                                                    There has been no evidence submitted                  context of motor vehicle waivers. Thus,                California’s test procedures impose
                                                  to indicate that California’s compelling                this can be viewed as a three-pronged                  requirements inconsistent with the
                                                  and extraordinary conditions do not                     test.                                                  federal test procedure.38
                                                  continue to exist. California, including                                                                          Congress has stated that the
                                                  the South Coast and the San Joaquin                     1. Consistency With Section 209(a) and                 consistency requirement of section
                                                  Valley air basins, continues to                         209(e)(1)                                              202(a) relates to technological
                                                  experience some of the worst air quality                   To be consistent with section 209(a)                feasibility.39 Section 202(a)(2) states, in
                                                  in the nation and continues to be in                    of the Clean Air Act, California’s                     part, that any regulation promulgated
                                                  non-attainment with national ambient                    commercial harbor craft regulations                    under its authority ‘‘shall take effect
                                                  air quality standards for fine particulate              must not apply to new motor vehicles                   after such period as the Administrator
                                                  matter (PM2.5) and ozone.37 In addition,                or new motor vehicle engines.                          finds necessary to permit the
                                                  EPA is not aware of any other                           California’s commercial harbor craft                   development and application of the
                                                  information that would suggest that                     regulations apply to nonroad marine                    requisite technology, giving appropriate
                                                  California no longer needs its nonroad                  vessels and engines, not on-highway                    consideration to the cost of compliance
                                                  emission program.                                       motor vehicles or engines. CARB states                 within such period.’’ Section 202(a)
                                                    Therefore, based on the record of this                that the new vessel requirements                       thus requires the Administrator to first
                                                  request and absence of comments or                      regulate new diesel engines, and apply                 determine whether adequate technology
                                                  other information to the contrary, I                    only to nonroad engines that are neither               already exists; or if it does not, whether
                                                  cannot find that California does not                    new motor vehicles nor new motor                       there is adequate time to develop and
                                                  continue to need such state standards,                  vehicle engines. No commenter                          apply the technology before the
                                                  including the CHC regulations, to                       presented otherwise; therefore, I cannot               standards go into effect. The latter
                                                  address the ‘‘compelling and                            deny California’s request on the basis                 scenario also requires the Administrator
                                                  extraordinary conditions’’ underlying                   that California’s commercial harbor craft              to decide whether the cost of developing
                                                  the state’s air pollution problems. I have              regulations are not consistent with                    and applying the technology within that
                                                  determined that I cannot deny                           section 209(a).                                        time is feasible. Previous EPA waivers
                                                  California authorization for its Full                      To be consistent with section                       are in accord with this position.40
                                                  Authorization Amendments under                          209(e)(1) of the Clean Air Act,                           As described above, the Full
                                                  section 209(e)(2)(A)(ii). As noted above,               California’s commercial harbor craft                   Authorization Amendments require in-
                                                  EPA’s within-the-scope analysis (that is                regulations must not affect new farming                use Tier 0 and Tier 1 propulsion and
                                                  applicable to the Within-the-Scope                      or construction vehicles or engines that               auxiliary marine engines on crew and
                                                  Amendments) does not require an                         are below 175 horsepower, or new                       supply, barge, and dredge vessels to
                                                  assessment of section 209(e)(2)(A)(ii).                 locomotives or their engines. CARB                     meet emission limits equal to or cleaner
                                                                                                          represents that commercial harbor craft                than federal Tier 2 or Tier 3 new marine
                                                  E. Consistency With Section 209 of the                  engines are not used in locomotives and                engine certification standards in effect
                                                  Clean Air Act                                           are not primarily used in farm and                     for the year that in-use engine
                                                     Section 209(e)(2)(A)(iii) of the Act                 construction equipment vehicles. No                    compliance is required (based on the
                                                  instructs that EPA cannot grant an                      commenter presented otherwise and                      model year of the in-use engine and
                                                  authorization if California’s standards                 EPA is otherwise not aware of any                      annual hours of operation). Vessel
                                                  and enforcement procedures are not                      information to the contrary; therefore, I              owners are provided the same
                                                  consistent with ‘‘this section.’’ As                    cannot deny California’s request on the                compliance options that were available
                                                  described above, EPA’s section 209(e)                   basis that California’s commercial                     to owners of Tier 0 and Tier 1 marine
                                                  rule states that the Administrator shall                harbor craft requirements are not                      engines in the initial CHC regulations:
                                                  not grant authorization to California if                consistent with section 209(e)(1).                     (1) Replacing an in-use engine with a
                                                  she finds (among other tests) that the                                                                         new marine engine certified to
                                                  ‘‘California standards and                              2. Consistency With Section 209(b)(1)(C)
                                                                                                                                                                 applicable Tier 2 or Tier 3 marine
                                                  accompanying enforcement procedures                        The requirement that California’s                   standards, (2) demonstrating that the in-
                                                  are not consistent with section 209.’’                  standards be consistent with section                   use marine engine already meets the
                                                  EPA has interpreted this requirement to                 209(b)(1)(C) of the Clean Air Act                      most stringent Tier 2 or Tier 3 marine
                                                  mean that California standards and                      effectively requires consistency with                  standards in effect for new engines of
                                                  accompanying enforcement procedures                     section 202(a) of the Act. California                  similar power rating and displacement,
                                                  (under both the full authorization and                  standards are inconsistent with section                (e.g., utilizing engine rebuild kits or
                                                  the within-the-scope analysis) must be                  202(a) of the Act if there is inadequate               aftertreatment technologies), (3)
                                                  consistent with at least sections 209(a),               lead-time to permit the development of                 demonstrating that an in-use marine
                                                                                                          technology necessary to meet those                     engine has not and will not operate
                                                    36 Id. See 74 FR 32744, 32762–32763 (July 8,
                                                                                                          requirements, giving appropriate                       more than a specified number of hours
                                                  2009); 79 FR 6584, 6588–6590 (February 4, 2014).        consideration to the cost of compliance
                                                    37 74 FR 32744, 32762–63 (July 8, 2009), 76 FR
                                                                                                                                                                 per calendar year (300 hours for crew
                                                  77515, 77518 (December 13, 2011), 81 FR 95982
                                                                                                          within that time. California’s                         and supply vessel engines or 80 hours
                                                  (December 29, 2016). EPA continually evaluates the      accompanying enforcement procedures                    for barge and dredge vessel engines), or
                                                  air quality conditions in the United States,            would also be inconsistent with section                (4) using the flexibility provided
                                                  including California. California continues to           202(a) if the federal and California test              through the exemptions and compliance
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                                                  experience some of the worst air quality in the
                                                  country and continues to be in nonattainment with
                                                                                                          procedures were not consistent. The                    extensions of the regulation. CARB
                                                  National Ambient Air Quality Standards for fine         scope of EPA’s review of whether
                                                  particulate matter and ozone, see ‘‘Notice of           California’s action is consistent with                   38 MEMA     I, 627, F.2d at 1126.
                                                  Availability of the Environmental Protection                                                                     39 H.R.   Rep. No. 95–294, 95th Cong., 1st Sess. 301
                                                                                                          section 202(a) is narrow. The
                                                  Agency’s Preliminary Interstate Ozone Transport                                                                (1977).
                                                  Modeling Data for the 2015 Ozone National
                                                                                                          determination is limited to whether                      40 See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43

                                                  Ambient Air Quality Standard (NAAQS)’’ at EPA–          those opposed to the authorization or                  FR 32182, 32183 (July 25, 1978); 41 FR 44209,
                                                  HQ–OAR–2016–0751.                                       waiver have met their burden of                        44213 (October 7, 1976).



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                                                  6506                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  notes ‘‘In granting California the                      authorization. Therefore, I cannot find                  Dated: January 11, 2017.
                                                  authorization for the original CHC                      that CARB’s Within-the-Scope                           Gina McCarthy,
                                                  regulation, EPA stated that ‘no party                   Amendments raise new issues and                        Administrator.
                                                  objected to CARB’s demonstration that                   consequently cannot deny CARB’s                        [FR Doc. 2017–01261 Filed 1–18–17; 8:45 am]
                                                  [compliance] technologies are in                        request based on this criterion.                       BILLING CODE 6560–50–P
                                                  existence and are being used in actual
                                                  operation,’ and also found no issue of                  III. Decision
                                                  incompatibility between California and                                                                         ENVIRONMENTAL PROTECTION
                                                                                                             After evaluating California’s CHC
                                                  federal test procedures.’’ 41 CARB also                                                                        AGENCY
                                                                                                          Amendments and CARB’s submissions
                                                  notes that the CHC Amendments now
                                                  provide owners or operators the                         for EPA review as described above, I am
                                                                                                                                                                 [EPA–HQ–OECA–2016–0745; FRL–9958–
                                                  additional compliance flexibility option                taking the following actions. First, I am              54–OECA]
                                                  of using CARB or EPA Tier 2 or higher                   granting an authorization for the Full
                                                  tier certified off-road CI engines to meet              Authorization Amendments. Second, I                    Inquiry To Learn Whether Businesses
                                                  the requirements for auxiliary or                       confirm that the Within-the-Scope                      Assert Business Confidentiality Claims
                                                  propulsion engines, so owners or                        Amendments are within-the scope of                     Regarding Waste Import and Export
                                                  operators may also elect to comply with                 EPA’s previous authorization.
                                                                                                                                                                 AGENCY: Environmental Protection
                                                  the amended in-use requirements by                         This decision will affect not only                  Agency (EPA).
                                                  replacing an in-use engine with a new                   persons in California, but also
                                                  off-road engine, or by demonstrating                                                                           ACTION: Notice; request for comment.
                                                                                                          manufacturers and/or owners/operators
                                                  that an existing in-use engine meets                    nationwide who must comply with                        SUMMARY:   The Environmental Protection
                                                  CARB or EPA Tier 2 or Tier 3 off-road                   California’s requirements. In addition,                Agency (EPA) receives from time to time
                                                  CI engines standards (e.g., through                     because other states may adopt                         Freedom of Information Act (FOIA)
                                                  utilization of engine rebuild kits or                   California’s standards for which a                     requests for documentation received or
                                                  aftertreatment technologies).                           section 209(e)(2)(A) authorization has                 issued by EPA or data contained in EPA
                                                     CARB maintains that the Within-the-
                                                                                                          been granted if certain criteria are met,              database systems pertaining to the
                                                  Scope Amendments present no issue
                                                                                                          this decision would also affect those                  export and import of Resource
                                                  regarding technical feasibility or
                                                                                                          states and those persons in such states.               Conservation and Recovery Act (RCRA)
                                                  inconsistent test procedures as the
                                                  amendments only maintain or relax the                   See CAA section 209(e)(2)(B). For these                hazardous waste from/to the United
                                                  stringency of the original CHC                          reasons, EPA determines and finds that                 States, the export of cathode ray tubes
                                                  regulation’s in-use requirements.                       this is a final action of national                     (CRTs) and spent lead acid batteries
                                                     EPA did not receive any comments                     applicability, and also a final action of              (SLABs) from the United States, and the
                                                  suggesting that California’s commercial                 nationwide scope or effect for purposes                export and import of RCRA universal
                                                  harbor craft regulations are                            of section 307(b)(1) of the Act. Pursuant              waste from/to the United States. These
                                                  technologically infeasible.                             to section 307(b)(1) of the Act, judicial              documents and data may identify or
                                                     Therefore, based on the record before                review of this final action may be sought              reference multiple parties, and describe
                                                  us, I cannot find that the CHC                          only in the United States Court of                     transactions involving the movement of
                                                  Amendments are technologically                          Appeals for the District of Columbia                   specified materials in which the parties
                                                  infeasible or otherwise inconsistent                    Circuit. Petitions for review must be                  propose to participate or have
                                                  with section 202(a). Therefore, I cannot                filed by March 20, 2017. Judicial review               participated. The purpose of this notice
                                                  deny CARB’s authorization request for                                                                          is to inform ‘‘affected businesses’’ about
                                                                                                          of this final action may not be obtained
                                                  the Full Authorization Amendments                                                                              the documents or data sought by these
                                                                                                          in subsequent enforcement proceedings,
                                                  and likewise cannot deny the within-                                                                           types of FOIA requests in order to
                                                                                                          pursuant to section 307(b)(2) of the Act.
                                                  the-scope request for the Within-the-                                                                          provide the businesses with the
                                                  Scope Amendments based on the                           IV. Statutory and Executive Order                      opportunity to assert claims that any of
                                                  section 202(a) criterion.                               Reviews                                                the information sought that pertains to
                                                                                                                                                                 them is entitled to treatment as
                                                  F. New Issues                                              As with past authorization and waiver               confidential business information (CBI),
                                                     EPA has stated in the past that if                   decisions, this action is not a rule as                and to send comments to EPA
                                                  California promulgates amendments                       defined by Executive Order 12866.                      supporting their claims for such
                                                  that raise new issues affecting                         Therefore, it is exempt from review by                 treatment. Certain businesses, however,
                                                  previously granted waivers or                           the Office of Management and Budget as                 do not meet the definition of ‘‘affected
                                                  authorizations, we would not confirm                    required for rules and regulations by                  business,’’ and are not covered by
                                                  that those amendments are within the                    Executive Order 12866.                                 today’s notice. They consist of any
                                                  scope of previous authorizations.42 I do                   In addition, this action is not a rule              business that actually submitted to EPA
                                                  not believe that the Within-the-Scope                   as defined in the Regulatory Flexibility               any document at issue pursuant to
                                                  Amendments raise any new issues with                                                                           applicable RCRA regulatory
                                                                                                          Act, 5 U.S.C. 601(2). Therefore, EPA has
                                                  respect to our prior granting of the                                                                           requirements and did not assert a CBI
                                                                                                          not prepared a supporting regulatory
                                                  authorization. Moreover, EPA did not                                                                           claim as to information that pertains to
                                                                                                          flexibility analysis addressing the
                                                  receive any comments that CARB’s CHC                                                                           that business in connection with the
                                                  Amendments raised new issues                            impact of this action on small business
                                                                                                                                                                 document at the time of its submission;
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                                                  affecting the previously granted                        entities.
                                                                                                                                                                 they have waived their right to do so at
                                                                                                             Further, the Congressional Review                   a later time. Nevertheless, other
                                                    41 Waiver Support Document at 19 (citing EPA’s        Act, 5 U.S.C. 801, et seq., as added by                businesses identified or referenced in
                                                  authorization at 76 FR 77521, 77527 (December 13,       the Small Business Regulatory                          the documents that were submitted to
                                                  2011).
                                                    42 See, e.g., 78 FR 38970 (June 28, 2013), 75 FR
                                                                                                          Enforcement Fairness Act of 1996, does                 EPA by the submitting business may
                                                  8056 (February 23, 2010), and 70 FR 22034 (April        not apply because this action is not a                 have a right to assert a CBI claim
                                                  28, 2005).                                              rule for purposes of 5 U.S.C. 804(3).                  concerning information that pertains to


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Document Created: 2018-02-01 15:16:29
Document Modified: 2018-02-01 15:16:29
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of decision.
DatesPetitions for review must be filed by March 20, 2017.
ContactDavid Dickinson, Attorney-Advisor, Transportation Climate Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: (202) 343-9256. Fax: (202) 343-2800. Email: [email protected]
FR Citation82 FR 6500 

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