20388 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices 

1California Air Resources Board (‘‘CARB’’), 

‘‘Request for Authorization,’’ December 10, 2008, 

EPA–HQ–OAR–2011–0830–0001. 

2CARB Enclosure 1, ‘‘Resolution 06–11,’’ EPA– 

HQ–OAR–2011–0830–0002. 

3CARB Enclosure 2, ‘‘Executive Order R–07– 

001,’’ EPA–HQ–OAR–2011–0830–0003. 

4CARB Enclosure 3, ‘‘Final Regulation Order,’’ 

EPA–HQ–OAR–2011–0830–0004. 

and transmit or otherwise disclose the 

information. 

Respondents/Affected Entities: 

Owners or operators of combustion 

units burning hazardous waste, States. 

Estimated Number of Respondents: 

208. 

Frequency of Response: Initially, 

occasionally, semiannually, and 

annually. 

Estimated Total Annual Hour Burden: 

142,447 Hours. 

Estimated Total Annual Cost: 

$19,665,792, includes $100,059 for 

annualized capital cost and $3,951,790 

for operation and maintenance (O&M) 

costs. 

Changes in the Estimates: There is a 

decrease of 57,450 hours in the total 

estimated burden currently identified in 

the OMB Inventory of Approved ICR 

Burdens. This burden decrease is due to 

a decrease in the number of estimated 

hazardous waste combustors affected by 

this ICR since the last renewal. 

John Moses, 

Director, Collection Strategies Division. 

[FR Doc. 2012–8055 Filed 4–3–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9655–9] 

California State Nonroad Engine 

Pollution Control Standards; Large 

Spark-Ignition (LSI) Engines; New 

Emission Standards and In-Use Fleet 

Requirements; Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 

SUMMARY: EPA is granting the California 

Air Resources Board’s (CARB’s) request 

for authorization of California’s 

emission standards and certification and 

test procedures for large spark-ignition 

nonroad engines and in-use fleet 

average emission requirements for largeand medium-sized fleets. California’s 

LSI in-use fleet requirements are 

applicable to fleets comprised of four or 

more pieces of equipment powered by 

LSI engines, including forklifts, 

industrial tow tractors, sweepers/ 

scrubbers, and airport ground support 

equipment. 

DATES: Petitions for review must be filed 

by June 4, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2011–0830. 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: a-and-r-Docket@

epa.gov, 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–2011–0830 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: 

Kristien G. Knapp, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue (6405J), NW., 

Washington, DC 20460. Telephone: 

(202) 343–9949. Fax: (202) 343–2800. 

Email: knapp.kristien@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. California’s LSI Regulations 

By letter dated December 10, 2008, 

CARB submitted to EPA its request 

pursuant to section 209(e) of the Clean 

Air Act (‘‘CAA’’ or ‘‘the Act’’), regarding 

its regulation of emissions from new offroad large spark-ignition (LSI) engines 

and its in-use fleet requirements for 

forklifts and other industrial equipment 

with LSI engines.1 The LSI regulations 

are designed to reduce emissions of 

hydrocarbons (HC) and oxides of 

nitrogen (NOX) from forklifts and other 

industrial equipment powered by LSI 

engines. CARB approved the LSI 

regulations at a public hearing on May 

25, 2006 (by Resolution 06–11).2 After 

making modifications to the regulation 

available on December 1, 2006, and 

February 1, 2007 for supplemental 

public comment, CARB’s Executive 

Officer formally adopted the LSI 

regulations in Executive Order R–07– 

001 on March 2, 2007.3 The LSI 

regulations are codified at title 13, 

California Code of Regulations, sections 

2775 through 2775.2.4

Underpinning CARB’s LSI regulations 

is a set of emission standards for new 

off-road LSI engines beginning in 2007. 

The emission standards include: 

adoption of EPA’s 2007 and later model 

year emission standards for the same 

engines, more stringent standards for 

the 2010 and later model years, optional 

certification standards, and more 

rigorous certification and test 

procedures. The LSI regulations also 

apply to operators of large- and 

medium-sized fleets of forklifts, 

sweepers/scrubbers, airport ground 

support equipment (GSE), and 

industrial tow tractors with engine 

displacements of greater than one liter. 

These fleets must meet a fleet average 

in-use emission standard. 

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 new 

nonroad engines or vehicles. States are 

also preempted from adopting and 

enforcing standards and other 

requirements related to the control of 

emissions from non-new nonroad 

engines or vehicles. Section 209(e)(2) 

requires the Administrator, after notice 

and opportunity for public hearing, to 

authorize California to enforce such 

standards and other requirements, 

unless EPA makes one of three findings. 

In addition, other states with attainment 

plans may adopt and enforce such 

regulations if the standards, and 


emcdonald on DSK29S0YB1PROD with NOTICES
Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices 20389 

5 59 FR 36969 (July 20, 1994). 

6See 62 FR 67733 (December 30, 1997). The 

applicable regulations, now in 40 CFR part 1074, 

subpart B, § 1074.105, provide: 

(a) The Administrator will grant the authorization 

if California determines that its standards will be, 

in the aggregate, at least as protective of public 

health and welfare as otherwise applicable federal 

standards. 

(b) The authorization will not be granted if the 

Administrator finds that any of the following are 

true: 

(1) California’s determination is arbitrary and 

capricious. 

(2) California does not need such standards to 

meet compelling and extraordinary conditions. 

(3) The California standards and accompanying 

enforcement procedures are not consistent with 

section 209 of the Act. 

(c) In considering any request from California to 

authorize the state to adopt or enforce standards or 

other requirements relating to the control of 

emissions from new nonroad spark-ignition engines 

smaller than 50 horsepower, the Administrator will 

give appropriate consideration to safety factors 

(including the potential increased risk of burn or 

fire) associated with compliance with the California 

standard. 

7See 59 FR 36969 (July 20, 1994). 

8 MEMA I, 627 F.2d at 1122. 

9 Id. 

10 Id. 

11 Id. 

12See, e.g., 40 FR 21102–103 (May 28, 1975). 

13 MEMA I, 627 F.2d at 1121. 

14 Id. at 1126. 

15 Id. 

16 76 FR 67184 (October 31, 2011). 

implementation and enforcement 

procedures, are identical to California’s 

standards. On July 20, 1994, EPA 

promulgated a rule that sets forth, 

among other things, regulations 

providing the criteria, as found in 

section 209(e)(2), which EPA must 

consider before granting any California 

authorization request for new nonroad 

engine or vehicle emission standards.5

EPA later revised these regulations in 

1997.6 As stated in the preamble to the 

1994 rule, EPA has historically 

interpreted the section 209(e)(2)(iii) 

‘‘consistency’’ inquiry 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) (as EPA has 

interpreted that subsection in the 

context of section 209(b) motor vehicle 

waivers).7

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. Pursuant to section 

209(b)(1)(C), 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 

are 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, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

C. Burden of Proof 

In Motor and Equip. Mfrs Assoc. v. 

EPA, 627 F.2d 1095 (D.C. Cir. 1979) 

(‘‘MEMA I’’), the U.S. Court of Appeals 

stated 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.8

The court in MEMA I considered the 

standards of proof under section 209 for 

the two findings related to granting a 

waiver for an ‘‘accompanying 

enforcement procedure’’ (as opposed to 

the standards themselves): (1) 

Protectiveness in the aggregate and (2) 

consistency with section 202(a) 

findings. The court instructed that ‘‘the 

standard of proof must take account of 

the nature of the risk of error involved 

in any given decision, and it therefore 

varies with the finding involved. We 

need not decide how this standard 

operates in every waiver decision.’’ 9

The court upheld the Administrator’s 

position that, to deny a waiver, there 

must be ‘‘clear and compelling 

evidence’’ to show that proposed 

procedures undermine the 

protectiveness of California’s 

standards.10 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.11

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. Although MEMA I did not 

explicitly consider the standards of 

proof under section 209 concerning a 

waiver request for ‘‘standards,’’ as 

compared to accompanying enforcement 

procedures, there is nothing in the 

opinion to suggest that the court’s 

analysis would not apply with equal 

force to such determinations. 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.’’ 12

Opponents of the waiver bear the 

burden of showing that the criteria for 

a denial of California’s waiver request 

have been met. As found in MEMA I, 

this obligation rests firmly with 

opponents of the waiver in a section 209 

proceeding: 

[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.13

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.’ ’’ 14 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 15

D. EPA’s Administrative Process in 

Consideration of California’s LSI 

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 October 31, 2011.16 Specifically, we 

requested comment on: (a) Whether 

CARB’s determination that its 


emcdonald on DSK29S0YB1PROD with NOTICES
20390 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices 

17 ‘‘BE IT FURTHER RESOLVED that the Board 

hereby determines, pursuant to section 209(e)(2) of 

the federal Clean Air Act that the emission 

standards and other requirements related to the 

control of emissions adopted as part of these 

regulations are, in the aggregate, at least as 

protective of public health and welfare as 

applicable federal standards, that California needs 

the adopted standards to meet compelling and 

extraordinary conditions, and that the adopted 

standards and accompanying enforcement 

procedures are consistent with the provisions in 

section 209.’’ CARB, Resolution 06–11, EPA–HQ– 

OAR–2011–0830–0003. 

18CARB, Request for Authorization at 19. 

19 Id. 

20See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

21 49 FR 18887, 18890 (May 3, 1984); see also 76 

FR 34693 (June 14, 2011), 74 FR 32744, 32763 (July 

8, 2009), and 73 FR 52042 (September 8, 2008). 

22CARB, Request for Authorization at 20. 

23 Id. 

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 response to EPA’s October 31, 2011 

Federal Register notice, EPA received 

one public comment, from Airlines for 

America (‘‘A4A’’). A4A comments that 

California’s LSI regulations as 

applicable to airport ground support 

equipment is preempted by the Federal 

Aviation Act and the Airline 

Deregulation Act. 

II. Discussion 

A. California’s Protectiveness 

Determination 

Section 209(e)(2)(i) of the Act 

instructs that EPA cannot grant an 

authorization if the agency finds that 

California 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 06–11, 

finding that California’s LSI regulations 

will not cause the California emission 

standards, in the aggregate, to be less 

protective of public health and welfare 

than applicable federal standards.17

CARB presents that California’s LSI 

program is at least as stringent as the 

federal LSI program ‘‘because for 2010 

and later model-year LSI engines, 

California’s standard for HC+NOX at 0.8 

g/kW-hr is more stringent than 

applicable federal standard at 2.0 g/kWhr and California’s other LSI engine 

standards are equivalent to federal 

standards for these model years.’’ 18

CARB contends that its protectiveness 

determination, based on the stringency 

of its program as compared to the 

federal program, ‘‘clearly is not arbitrary 

and capricious.’’ 19

EPA did not receive any comments 

challenging California’s protectiveness 

determination. Therefore, based on the 

record before us, EPA finds that 

opponents of the authorization have not 

shown that California 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. 

B. 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 * * *.’’ 

This criterion restricts EPA’s inquiry to 

whether California needs its own mobile 

source pollution program to meet 

compelling and extraordinary 

conditions, and not whether any given 

standards are necessary to meet such 

conditions.20 As discussed above, for 

over forty years CARB has repeatedly 

demonstrated the need for its mobile 

source emissions program to address 

compelling and extraordinary 

conditions in California. In its 

Resolution 06–11, CARB affirmed its 

longstanding position that California 

continues to need its own motor vehicle 

and engine program to meet its serious 

air pollution problems. Likewise, EPA 

has consistently recognized that 

California continues to have the same 

‘‘geographical and climatic conditions 

that, when combined with the large 

numbers and high concentrations of 

automobiles, create serious pollution 

problems.’’ 21 Furthermore, no 

commenter has presented any argument 

or evidence to suggest that California no 

longer needs a separate mobile source 

emissions program to address 

compelling and extraordinary 

conditions in California. Therefore, EPA 

has determined that we cannot deny 

California an authorization for its LSI 

regulations under section 209(e)(2)(ii). 

C. Consistency With Section 209 of the 

Clean Air Act 

Section 209(e)(2)(iii) of the Act 

instructs that EPA cannot grant an 

authorization if California’s standards 

and enforcement procedures are not 

consistent with section 209. As 

described above, EPA has historically 

evaluated this criterion for consistency 

with sections 209(a), 209(e)(1), and 

209(b)(1)(C). 

1. Consistency With Section 209(a) 

To be consistent with section 209(a) 

of the Clean Air Act, California’s LSI 

regulations must not apply to new 

motor vehicles or new motor vehicle 

engines. California’s LSI regulations 

expressly apply only to off-road vehicles 

and do not apply to engines used in 

motor vehicles as defined by section 

216(2) of the Clean Air Act.22 No 

commenter presented otherwise. 

Therefore, EPA cannot deny California’s 

request on the basis that California’s LSI 

regulations are not consistent with 

section 209(a). 

2. Consistency With Section 209(e)(1) 

To be consistent with section 

209(e)(1) of the Clean Air Act, 

California’s LSI regulations must not 

affect new farming or construction 

vehicles or engines that are below 175 

horsepower, or new locomotives or their 

engines. CARB presents that the Board 

‘‘ensured consistency with section 

209(e)(1) by specifically excluding new 

off-road engines under 175 horsepower 

primarily used in farm and construction 

vehicles and equipment from the 

definition of off-road LSI engines.’’ 23

No commenter presented otherwise. 

Therefore, EPA cannot deny California’s 

request on the basis that California’s LSI 

regulations are not consistent with 

section 209(e)(1). 

3. 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 timeframe. California’s 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if federal and California test 

procedures conflicted. 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 


emcdonald on DSK29S0YB1PROD with NOTICES
Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices 20391 

24 MEMA I, 627, F.2d at 1126. 

25H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

26See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 

FR 32182, 32183 (July 25, 1978); 41 FR 44209, 

44213 (October 7, 1976). 

27 41 FR 44209 (October 7, 1976). 

28H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

29CARB, Request for Authorization at 24–28. 

30See, e.g., 43 FR 32182 (July 25, 1978). 

31CARB, Request for Authorization at 28. 

32See, e.g., 74 FR 32744, 32783 (July 8, 2009). 33See 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). 34A4A may raise these issues in a direct 

challenge to California’s regulations in other 

forums, but these issues are not relevant to EPA’s 

limited review under section 209. 

impose requirements inconsistent with 

the federal test procedures.24

a. Technological Feasibility 

Congress has stated that the 

consistency requirement of section 

202(a) relates to technological 

feasibility.25 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.26 For 

example, a previous EPA waiver 

decision considered California’s 

standards and enforcement procedures 

to be consistent with section 202(a) 

because adequate technology existed as 

well as adequate lead-time to implement 

that technology.27 Subsequently, 

Congress has stated that, generally, 

EPA’s construction of the waiver 

provision has been consistent with 

congressional intent.28

CARB presents that the technology 

required to comply with its LSI 

regulations is currently available, and 

that it has provided sufficient lead-time, 

giving consideration to cost of 

compliance.29 CARB points to EPA’s 

own analysis in the federal rule for 

these same engines, but also separately 

concluded that fleet owners will be able 

to absorb or pass compliance costs to 

their customers. CARB’s LSI fleet 

requirements progressively increase in 

stringency from year-to-year, and allow 

a variety of compliance options, 

including combinations of retrofits that 

have already been verified, loweremission purchases, and zero emission 

purchases. Capital costs of these options 

range from $30 to $5,000, and may be 

exceeded by resultant lowered fuel use 

and lessened maintenance. CARB also 

points out that fleet requirements apply 

selectively, provide several exemptions, 

and that compliance extensions may be 

granted. 

EPA did not receive any comments 

suggesting that CARB’s standards and 

test procedures are technologically 

infeasible. Consequently, based on the 

record, EPA cannot deny California’s 

authorization based on technological 

infeasibility. 

b. Consistency of Certification 

Procedures 

California’s standards and 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if the California test procedures 

were to impose certification 

requirements inconsistent with the 

federal certification requirements. Such 

inconsistency means that manufacturers 

would be unable to meet both the 

California and federal testing 

requirements using the same test vehicle 

or engine.30 CARB presents that the LSI 

fleet requirements raise no issue 

regarding test procedure consistency 

because there are no analogous federal 

test procedures for LSI retrofit 

technologies.31 CARB also points out 

that its retrofit verification program is a 

voluntary program available to retrofit 

device manufacturers, and not directly 

required of fleet owners. 

EPA received no comments suggesting 

that CARB’s LSI regulations pose any 

test procedure consistency problem. 

Therefore, based on the record, EPA 

cannot find that CARB’s testing 

procedures are inconsistent with section 

202(a). Consequently, EPA cannot deny 

CARB’s request based on this criterion. 

D. Other Issues 

Airlines for America (‘‘A4A’’) has 

provided comments opposing EPA’s 

grant of authorization for California’s 

LSI regulations. The reasons A4A 

provides in its comments are outside the 

scope of EPA’s scope of review of 

California authorization requests under 

section 209(e)(2). A4A claims that 

California’s LSI rules are preempted by 

the Federal Aviation Act and the Airline 

Deregulation Act. As EPA has stated on 

numerous occasions, 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 our 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.32 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.33

A4A’s comment raises issues of federal 

preemption that are not included within 

the criteria listed under sections 209(b) 

and 209(e).34 Therefore, in considering 

whether to grant authorization for 

California’s LSI regulations under 

section 209(e), EPA cannot deny 

California’s request for authorization 

based on the issues raised by A4A. 

E. Authorization Determination for 

California’s LSI Regulations 

After a review of the information 

submitted by CARB and A4A, EPA finds 

that those opposing California’s request 

have not met the burden of 

demonstrating that authorization for 

California’s LSI regulations should be 

denied based on any of the statutory 

criteria of section 209(e)(2). For this 

reason, EPA finds that an authorization 

for California’s LSI regulations should 

be granted. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating California’s LSI 

regulations, CARB’s submissions, and 

the public comments from A4A, EPA is 

granting an authorization to California 

for its LSI regulations. 

My decision will affect not only 

persons in California, but also entities 

outside the State who must comply with 

California’s requirements. For this 

reason, I determine and find that this is 

a final action of national applicability 

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 June 4, 2012. Judicial 

review of this final action may not be 

obtained in subsequent enforcement 

proceedings, pursuant to section 

307(b)(2) of the Act. 


emcdonald on DSK29S0YB1PROD with NOTICES
20392 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Notices 

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: March 29, 2012. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2012–8112 Filed 4–3–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OPP–2012–0230; FRL–9343–7] 

FIFRA Scientific Advisory Panel; 

Notice of Public Meeting 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: There will be a 4-day meeting 

of the Federal Insecticide, Fungicide, 

and Rodenticide Act Scientific Advisory 

Panel (FIFRA SAP) to consider and 

review Problem Formulation for the 

Reassessment of Ecological Risks from 

the Use of Atrazine. 

DATES: The meeting will be held on June 

12–14, 2012, from 9 a.m. to 

approximately 5:30 p.m. and on June 15, 

2012, from 9 a.m. to approximately 

12:30 p.m. 

Comments. The Agency encourages 

that written comments be submitted by 

May 29, 2012, and requests for oral 

comments be submitted by June 5, 2012. 

However, written comments and 

requests to make oral comments may be 

submitted until the date of the meeting, 

but anyone submitting written 

comments after May 29, 2012, should 

contact the Designated Federal Official 

(DFO) listed under FOR FURTHER

INFORMATION CONTACT. For additional 

instructions, see Unit I.C. of the 

SUPPLEMENTARY INFORMATION. 

Nominations. Nominations of 

candidates to serve as ad hoc members 

of FIFRA SAP for this meeting should 

be provided on or before April 18, 2012. 

Webcast. This meeting may be 

webcast. Please refer to the FIFRA SAP’s 

Web site, http://www.epa.gov/scipoly/ 

sap for information on how to access the 

webcast. Please note that the webcast is 

a supplementary public process 

provided only for convenience. If 

difficulties arise resulting in webcasting 

outages, the meeting will continue as 

planned. 

Special accommodations. For 

information on access or services for 

individuals with disabilities, and to 

request accommodation of a disability, 

please contact the DFO listed under FOR

FURTHER INFORMATION CONTACT at least 

10 days prior to the meeting to give EPA 

as much time as possible to process 

your request. 

ADDRESSES: The meeting will be held at 

the Environmental Protection Agency, 

Conference Center, Lobby Level, One 

Potomac Yard (South Bldg.), 2777 S. 

Crystal Dr., Arlington, VA 22202. 

Comments. Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2012–0230, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Mail: Office of Pesticide Programs 

(OPP) Regulatory Public Docket (7502P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001. 

• Delivery: OPP Regulatory Public 

Docket (7502P), Environmental 

Protection Agency, Rm. S–4400, One 

Potomac Yard (South Bldg.), 2777 S. 

Crystal Dr., Arlington, VA. Deliveries 

are only accepted during the Docket 

Facility’s normal hours of operation 

(8:30 a.m. to 4 p.m., Monday through 

Friday, excluding legal holidays). 

Special arrangements should be made 

for deliveries of boxed information. The 

Docket Facility telephone number is 

(703) 305–5805. 

Instructions: Direct your comments to 

docket ID number EPA–HQ–OPP–2012– 

0230. If your comments contain any 

information that you consider to be CBI 

or otherwise protected, please contact 

the DFO listed under FOR FURTHER

INFORMATION CONTACT to obtain special 

instructions before submitting your 

comments. EPA’s policy is that all 

comments received will be included in 

the docket without change and may be 

made available on-line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through regulations.gov or 

email. The regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

regulations.gov, your email address will 

be automatically captured and included 

as part of the comment that is placed in 

the docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the docket index available 

at http://www.regulations.gov. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either in the 

electronic docket at http:// 

www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

hours of operation of this Docket 

Facility are from 8:30 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays. The Docket Facility telephone 

number is (703) 305–5805. 

Nominations, requests to present oral 

comments, and requests for special 

accommodations. Submit nominations 

to serve as ad hoc members of FIFRA 

SAP, requests for special seating 

accommodations, or requests to present 

oral comments to the DFO listed under 

FOR FURTHER INFORMATION CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Sharlene R. Matten, Office of Science 

Coordination and Policy (7201M), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(202) 564–0130; fax number: (202) 564– 


emcdonald on DSK29S0YB1PROD with NOTICES