Federal Register / Vol. 80, No. 237 / Thursday, December 10, 2015 / Notices 76685 

1The federal term ‘‘nonroad’’ and the California 

term ‘‘off-road’’ may be used interchangeably 

herein. 

2 77 FR 72846, 72847 (December 6, 2012). 

3The Portable Engine ATCM is set forth at 17 

CCR 93116 et seq. 

4 77 FR 72846 (December 6, 2012). 

should be filed in all the dockets listed 

above no later than January 6, 2016. A 

schedule for post-technical conference 

comments will be established at the 

technical conference. 

The technical conference is open to 

the public. The Chairman and 

Commissioners may attend and 

participate in the technical conference. 

Pre-registration through the 

Commission’s Web site https://

www.ferc.gov/whats-new/registration/

01-12-16-form.asp is encouraged by 

December 18, 2015, to help ensure 

sufficient seating is available. 

This conference will also be 

transcribed. Interested persons may 

obtain a copy of the transcript for a fee 

by contacting Ace-Federal Reporters, 

Inc. at (202) 347–3700. 

In addition, there will be a free audio 

cast of the conference. Anyone wishing 

to listen to the meeting should send an 

email to Sarah McKinley at 

sarah.mckinley@ferc.gov by January 5, 

2016, to request call-in information. 

Please reference ‘‘call information for 

PJM cost allocation technical 

conference’’ in the subject line of the 

email. The call-in information will be 

provided prior to the meeting. 

Persons listening to the technical 

conference may participate by 

submitting questions, either prior to or 

during the technical conference, by 

emailing PJMDFAXconfDL@ferc.gov. 

Commission conferences are 

accessible under section 508 of the 

Rehabilitation Act of 1973. For 

accessibility accommodations please 

send an email to accessibility@ferc.gov 

or call toll free 1–866–208–3372 (voice) 

or 202–502–8659 (TTY); or send a fax to 

202–208–2106 with the required 

accommodations. 

For more information about this 

technical conference, please contact 

PJMDFAXconfDL@ferc.gov; or Sarah 

McKinley, 202–502–8368, 

sarah.mckinley@ferc.gov, regarding 

logistical issues. 

Dated: December 4, 2015. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2015–31123 Filed 12–9–15; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2014–0798; FRL–9939–92– 

OAR] 

California State Nonroad Engine 

Pollution Control Standards; Portable 

Diesel-Fueled Engines Air Toxics 

Control Measure; Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 

SUMMARY: The Environmental Protection 

Agency (‘‘EPA’’) is granting the 

California Air Resources Board’s 

(‘‘CARB’’) request for authorization of 

amendments to its Portable DieselFueled Engines Air Toxics Control 

Measure (‘‘Portable Engine 

Amendments’’). EPA is also confirming 

that certain Portable Engine 

Amendments are within the scope of a 

prior EPA authorization. CARB’s 

Portable Engine Amendments apply to 

in-use, portable, off-road 1 diesel-fueled 

engines rated 50 brake horsepower (bhp) 

and greater. This decision is issued 

under the authority of the Clean Air Act 

(‘‘CAA’’ or ‘‘Act’’). 

DATES: Petitions for review must be filed 

by February 8, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2014–0798. 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–2014–0798 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. Although a 

part of the official docket, the public 

docket does not include Confidential 

Business Information (‘‘CBI’’) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

Air Quality (‘‘OTAQ’’) maintains a Web 

page that contains general information 

on its review of California waiver and 

authorization requests. Included on that 

page are links to prior waiver Federal 

Register notices, some of which are 

cited in today’s notice; the page can be 

accessed at http://www.epa.gov/otaq/

cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

David Read, Attorney, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 2565 

Plymouth Road, Ann Arbor, MI 48105. 

Telephone: (734) 214–4367. Fax: (734) 

214–4212. Email: read.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

California initially adopted its 

Portable Engine regulations on February 

26, 2004 as part of a broad California 

program to reduce emissions of diesel 

particulate matter. The regulations 

applied to in-use, portable, off-road 

diesel-fueled engines rated 50 brake 

horsepower (bhp) and greater. ‘‘Portable 

engines’’ are engines that may be moved 

easily from location to location.2 Subject 

engines were required to be certified to 

certain emission standards by January 1, 

2010, unless the engines were 

designated as low-use engines or as 

engines exclusively used in emergency 

applications. Fleets of in-use dieselfueled portable engines were required to 

meet fleet-average standards for diesel 

PM emissions that become increasingly 

more stringent in 2013, 2017, and 2020. 

The initial Portable Engine air toxic 

control measure (ATCM) became 

operative under state law on March 11, 

2005 3 and EPA authorized the 

regulations on November 29, 2012.4

CARB adopted the 2007 amendments 

on July 31, 2007, and they became 

effective on September 12, 2007. The 

2007 amendments were designed to 

extend temporary, emergency 

provisions CARB had adopted to 

address the inability of owners and 

operators to permit or register older 

mstockstill on DSK4VPTVN1PROD with NOTICES

76686 Federal Register / Vol. 80, No. 237 / Thursday, December 10, 2015 / Notices 

5The California In-Use Off-Road regulation is set 

forth at 13 CCR 2449 et seq. 

6The California Truck and Bus regulation is set 

forth at 13 CCR 2025 et seq. 

7States 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. 

8See ‘‘Air Pollution Control; Preemption of State 

Regulation for Nonroad Engine and Vehicle 

Standards,’’ 59 FR 36969 (July 20, 1994). 

9See ‘‘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. 

10See supra note 8. EPA has interpreted 

209(b)(1)(C) in the context of section 209(b) motor 

vehicle waivers. 

engines that did not satisfy the Portable 

Engine certification requirement to meet 

the most stringent federal or California 

emission standards. The 2007 

amendments addressed this issue by (i) 

granting discretion to local air districts 

to permit or register uncertified portable 

engines that were operated in California 

within a designated time period prior to 

October 1, 2006, or that were low-use 

engines or used exclusively in 

emergency applications, (ii) allowing 

Tier 1 and Tier 2 engines that were in 

operation within a designated time 

period prior to October 1, 2006, but did 

not meet the most stringent emission 

requirements, to be permitted or 

registered until December 31, 2009, and 

(iii) otherwise providing additional 

compliance flexibility. 

In 2008, CARB adopted an In-Use OffRoad regulation 5 and a Truck and Bus 

regulation.6 CARB then amended the 

Portable Engine regulations to exempt 

certain engines (viz., secondary engines 

on two-engine cranes and two-engine 

sweepers, and on lattice boom cranes) 

that instead became subject to either the 

In-Use Off-Road regulation or the Truck 

and Bus regulation. CARB formally 

adopted the amendments to the Portable 

Engine ATCM on October 19, 2009 (the 

2009 amendments). 

California formally approved the 2010 

amendments to the Portable Engine 

ATCM regulations on October 19, 2010 

and January 20, 2011. The 2010 

amendments became operative under 

state law on February 19, 2011. The 

2010 amendments provided further 

compliance flexibility, and clarified or 

modified other aspects of the 

regulations. For example, some entities 

were allowed to operate a limited 

number of non-certified engines for an 

additional year, through December 31, 

2010. Additional regulatory relief was 

provided for engines that were 

permitted or registered prior to January 

1, 2010. The amendments provided for 

permitting of portable engines that were 

certified to standards for new on-road 

engines. Auxiliary deck engines on 

water well drilling rigs were exempted 

and instead made subject to CARB’s InUse Off-Road Regulation. Portable 

engines used exclusively on dedicated 

snow removal vehicles were also 

exempted. Low-use and emergency use 

engines were required to be removed or 

replaced with a current tier engine by 

January 1, 2017. The 2010 amendments 

also deleted the provision that had 

allowed local air districts, in their 

discretion, to permit non-certified 

engines that had operated between 

March 1, 2004 and October 1, 2006. The 

amendments specified particulate 

matter (PM) emission factors for certain 

engines, which are used to help 

determine fleet average standards. 

Finally, the 2010 amendments provided 

relief for certified engines that lost their 

permit exemption due to changes in 

local air district rules. 

By letter dated September 15, 2014, 

CARB submitted a request to EPA 

pursuant to section 209(e) of the Act for 

confirmation that the 2007, 2009, and 

2010 amendments fall within the scope 

of EPA’s previous authorization, or, in 

the alternative, that EPA grant a full 

authorization for those amendments. 

A. 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.7 For 

all other nonroad engines (including 

‘‘non-new’’ engines), states generally are 

preempted from adopting and enforcing 

standards and other requirements 

relating to the control of emissions, 

except that section 209(e)(2)(A) of the 

Act requires EPA, after notice and 

opportunity for public hearing, to 

authorize California to adopt and 

enforce such regulations unless EPA 

makes one of three enumerated findings. 

Specifically, EPA must deny 

authorization if the Administrator finds 

that (1) California’s protectiveness 

determination (i.e., that California 

standards will be, in the aggregate, as 

protective of public health and welfare 

as applicable federal standards) is 

arbitrary and capricious, (2) California 

does not need such standards to meet 

compelling and extraordinary 

conditions, or (3) the California 

standards and accompanying 

enforcement procedures are not 

consistent with section 209 of the Act. 

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

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, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

In light of the similar language of 

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 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 80, No. 237 / Thursday, December 10, 2015 / Notices 76687 

11See Engine Manufacturers Association v. EPA, 

88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was 

within the bounds of permissible construction in 

analogizing § 209(e) on nonroad sources to § 209(a) 

on motor vehicles.’’ 

12See supra note 7, at 36983. 

13 ‘‘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. 

14See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 

15See ‘‘California State Motor Vehicle Pollution 

Control Standards; Amendments Within the Scope 

of Previous Waiver of Federal Preemption,’’ 46 FR 

36742 (July 15, 1981). 

16 40 FR 23102, 23103–23104 (May 28, 1975). 

17 Id. at 23104; 58 FR 4166 (January 13, 1993). 

18 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 

294, 95th Cong., 1st Sess. 301–302 (1977)). 

19 Id. 

20 MEMA I, supra note 17, at 1121. 

21 Id. at 1126. 

22 Id. at 1126. 

23 Id. at 1122. 

under section 209(b).11 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),12 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: 

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.13

This principle of narrow EPA review 

has been upheld by the U.S. Court of 

Appeals for the District of Columbia 

Circuit.14 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). 

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 review 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.15

B. 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.16

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.17 This 

interpretation is supported by relevant 

discussion in the House Committee 

Report for the 1977 amendments to the 

Clean Air Act.18 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.19

C. Burden and Standard of Proof 

As the U.S. Court of Appeals for the 

DC 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.20

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.’ ’’21 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 22

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.23

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 

mstockstill on DSK4VPTVN1PROD with NOTICES

76688 Federal Register / Vol. 80, No. 237 / Thursday, December 10, 2015 / Notices 

24 Id. 

25 Id. 

26See, e.g., ‘‘California State Motor Vehicle 

Pollution Control Standards; Waiver of Federal 

Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103. 

27See ‘‘California State Nonroad Engine Pollution 

Control Standards; Portable Diesel-Fueled Engines 

Air Toxics Control Measure; Request for 

Confirmation That Amendments Are Within-theScope of Previous Authorization; Opportunity for 

Public Hearing and Comment,’’ 79 FR 69462 

(November 21, 2014). 

28 ‘‘Request for Authorization Action Pursuant to 

Clean Air Act Section 209(e) for 2007, 2009, and 

2010 Amendments to California’s Airborne Toxic 

Control Measure for Portable Diesel Engines 50 

Horsepower and Greater’’ (September 15, 2014), 

(‘‘California Authorization Support Document’’), at 

10–14 [publicly available at www.regulations.gov 

Web site, docket number EPA–HQ–OAR–2014– 

0798–0002]. 

29California Authorization Support Document, at 

11. 

30California Authorization Support Document, at 

11. 

31California Authorization Support Document, at 

11. 32California Authorization Support Document, at 

14. 33California Authorization Support Document, at 

14. 

proposed enforcement procedures 

undermine the protectiveness of 

California’s standards.24 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.25

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.’’ 26

D. EPA’s Administrative Process in 

Consideration of California’s Portable 

Engine ATCM Amendment Request for 

Authorization 

On November 21, 2014, EPA 

published a Federal Register notice 

announcing its receipt of California’s 

authorization request. In that notice, 

EPA invited public comment on each of 

the Portable Engine ATCM amendments 

and an opportunity to request a public 

hearing.27

First, EPA requested comments on 

whether California’s 2007, 2009, or 2010 

Portable Engine ATCM amendments: (1) 

Undermine California’s previous 

determination that its standards, in the 

aggregate, are at least as protective of 

public health and welfare as comparable 

federal standards; (2) affect the 

consistency of California’s requirements 

with section 209 of the Act; or (3) raise 

any other new issues affecting EPA’s 

previous authorization determinations. 

EPA also requested comments on 

whether the 2007, 2009, or 2010 

Portable Engine ATCM amendments 

meet the criteria for a full authorization 

should any party believe that the 

amendments are not within the scope of 

the previous authorization. 

EPA received no comments and no 

requests for a public hearing. 

Consequently, EPA did not hold a 

public hearing. 

II. Discussion 

A. Within-the-Scope Discussion 

CARB maintains that the amendments 

noted above meet all three within-thescope criteria, i.e., that the amendments: 

(1) Do not undermine the original 

protectiveness determination 

underlying California’s Portable Engine 

ATCM regulations; (2) do not affect the 

consistency of the Portable Engine 

ATCM regulations with section 209, and 

(3) do not raise any new issues affecting 

the prior authorization.28 We received 

no adverse comments or evidence 

suggesting a within-the-scope analysis is 

inappropriate, or that these Portable 

Engine ATCM amendments fail to meet 

any of the three criteria for within-thescope confirmation. 

With regard to the first within-thescope prong, CARB maintains that the 

stringency of its emission standards is, 

in the aggregate, at least as protective of 

public health and welfare as applicable 

federal standards, especially since there 

are no federally applicable standards 

regulating in-use nonroad engines.29 No 

comments presented otherwise, and 

EPA agrees that there are no federally 

applicable standards for in-use nonroad 

engines and that no evidence exists in 

the record to demonstrate that CARB’s 

Portable Engine ATCM regulations, in 

the aggregate, are less protective than 

applicable federal standards. Therefore, 

we find that the Portable Engine ATCM 

amendments, as noted, do not 

undermine the protectiveness 

determination made with regard to the 

original Portable Engine ATCM 

authorization. 

With regard to the second within-thescope prong (consistency with section 

209), CARB first maintains that the 

Portable Engine ATCM amendments do 

not regulate new motor vehicles or 

motor vehicle engines and so are 

consistent with section 209(a).30

Likewise the Portable Engine ATCM 

amendments do not regulate any of the 

permanently preempted categories of 

engines or vehicles (e.g., new 

locomotives, engines for new 

locomotives, or new nonroad engines 

less than 175 horsepower used in farm 

and construction equipment and 

vehicles), and so are consistent with 

section 209(e)(1).31 CARB maintains 

that the Portable Engine ATCM 

amendments do not cause any 

technological feasibility issues or cause 

inconsistency between state and federal 

test procedures, per section 209(b)(1)(C). 

Finally, CARB maintains that none of 

the 2007, 2009 or 2010 Amendments 

alter the test procedures specified for 

certifying engines, so there is no effect 

on the consistency with federal test 

procedures.32 As mentioned above, no 

comments were received showing 

otherwise on any of these contentions. 

Because there is no evidence in the 

record to indicate that CARB’s Portable 

Engine amendments are inconsistent 

with section 209, we cannot find that 

the noted Portable Engine amendments 

are inconsistent with section 209. 

Regarding the third prong, California 

states that it is ‘‘not aware of any new 

issues affecting the previously granted 

authorization for the Portable Engine 

ATCM.’’ 33 There were also no 

comments arguing that any new issues 

have been raised affecting the 

previously granted authorization. 

CARB’s 2007 Amendments and 2009 

Amendments provide compliance 

flexibilities and regulatory relief that 

would not appear to raise any new 

issues affecting the previously granted 

authorization. Thus, we cannot find that 

the 2007 or 2009 Amendments raise any 

new issues affecting the previously 

granted authorization. 

CARB’s 2010 Amendments, however, 

include some new or stricter regulatory 

requirements, such as (i) requiring lowuse and emergency use engines to be 

removed or replaced with a current tier 

engine by January 1, 2017 (which is 

earlier than originally required for some 

engine sizes), (ii) no longer allowing 

local air districts to permit non-certified 

engines that had operated between 

March 1, 2004 and October 1, 2006, and 

(iii) specifying PM emission factors for 

certain engines in order to help 

determine fleet average standards. These 

amendments will be referred to herein 

as the ‘‘New 2010 Requirements.’’ 

Because these New 2010 Requirements 

raise new issues affecting the 

authorization previously granted for the 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 80, No. 237 / Thursday, December 10, 2015 / Notices 76689 

34Because the New 2010 amendments create both 

new and more stringent emission requirements on 

the regulated parties, which are the type of 

requirements otherwise preempted under section 

209(e)(1), EPA considers such amendments to 

create ‘‘new issues’’ which require a full 

consideration of the authorization criteria under 

section 209(e)(2)(A). Minor amendments to 

previously waived standards that do not create 

additional burdens on the regulated parties are 

considered under the within-the-scope criteria by 

EPA. See 37 FR 14831 (July 25, 1972). 

35California Authorization Support Document, at 

11. 

36California Authorization Support Document, at 

14–16. 

37California Authorization Support Document, at 

15. 

38Final 209(e) Rule, 59 FR at 36982. The 

Administrator has recognized that even if such a 

standard by standard test were applied to 

California, it ‘‘would not be applicable to its fullest 

stringency due to the degree of discretion given to 

California in dealing with its mobile source 

pollution problems.’’ (41 FR 44209, 44213, (October 

7, 1976); 49 FR 18887, 18892 (May 3, 1984).); see 

also EPA’s 2009 GHG Waiver Decision wherein EPA 

rejected the suggested interpretation of section 

209(b)(1)(B) as requiring a review of the specific 

need for California’s new motor vehicle greenhouse 

gas emission standards as opposed to the traditional 

interpretation (need for the program as a whole) 

applied to local or regional air pollution problems. 

39California Authorization Support Document, at 

11. 

40California Authorization Support Document, at 

11. 41California Authorization Support Document, at 

14. 42California Authorization Support Document, at 

13, citing 75 FR 8056, 8060 (February 23, 2010). 

Portable Engine ATCM, the New 2010 

Requirements are not considered within 

the scope of the prior authorization, and 

will need to be evaluated for a full 

authorization.34

In summary, for the 2007 and 2009 

Amendments, we find that California 

has met the three criteria for a withinthe-scope authorization approval, and 

these amendments are thus confirmed 

as within the scope of the previous EPA 

authorization of California’s Portable 

Engine ATCM regulations. For the 2010 

Amendments, while most of the 2010 

amendments are within the scope of the 

previous authorization, the New 2010 

Requirements are not within the scope 

of the prior authorization, and we will 

proceed to determine whether the New 

2010 Requirements qualify for full 

authorization. 

B. Full Authorization Discussion for the 

New 2010 Requirements 

As described in the background 

section, the CAA directs EPA to grant 

authorization, unless EPA makes one of 

three possible findings: (1) That 

California’s protectiveness 

determination is arbitrary and 

capricious, (2) that California does not 

need state standards to meet compelling 

and extraordinary conditions, or (3) that 

the California standards and 

accompanying enforcement procedures 

are not consistent with section 209 of 

the Act. As mentioned above, the New 

2010 Requirements to be evaluated for 

full authorization include the 

amendments requiring low-use and 

emergency use engines to be removed or 

replaced with a current tier engine by 

January 1, 2017, the amendments no 

longer allowing local air districts to 

permit non-certified engines that had 

operated between March 1, 2004 and 

October 1, 2006, and the amendments 

specifying PM emission factors for 

certain engines in order to help 

determine fleet average standards. 

Regarding the first possible finding, it 

is clear that California’s standards are at 

least as protective of public health and 

welfare as applicable federal standards, 

especially since there are no federally 

applicable standards to regulate in-use 

nonroad engines.35 No comments 

presented otherwise, and the New 2010 

Requirements at issue make the 

standards more protective, not less. 

Therefore, we find that California’s 

protectiveness determination is not 

arbitrary and capricious. 

Regarding the second possible 

finding, California reasserts its 

longstanding position that the State 

continues to need its own nonroad 

engine program to meet serious air 

pollution problems.36 CARB points out 

that California, particularly in the South 

Coast and San Joaquin Valley Air 

Basins, continues to experience some of 

the worst air quality in the nation.37 We 

further note that the relevant inquiry 

under section 209(e)(2)(A)(ii) is whether 

California needs its own emission 

control program to meet compelling and 

extraordinary conditions, not whether 

any given standard is necessary to meet 

such conditions.38 CARB’s emission 

control program is a central part of 

California’s efforts to improve its air 

quality, to meet its air quality goals and 

satisfy its State Implementation Plan 

obligations. No comments were 

submitted otherwise. Therefore, we 

cannot find that California does not 

need its state standards to meet 

compelling and extraordinary 

conditions in California. 

The third and final possible finding 

upon which authorization could be 

denied is if the New 2010 Requirements 

are not consistent with ‘‘this section.’’ 

As discussed above, this requires 

evaluation of consistency with sections 

209(a), 209(e)(1), and 209(b)(1)(C). To be 

consistent with section 209(a), the 

amendments must not apply to new 

motor vehicles or motor vehicle engines. 

CARB states that none of its Portable 

Engine ATCM requirements apply to 

new motor vehicles or motor vehicle 

engines.39 No evidence has been 

received to the contrary. Second, to be 

consistent with section 209(e)(1) of the 

Act, the regulations must not attempt to 

regulate vehicles and engines 

permanently preempted from state 

regulation by section 209(e)(1), 

including new nonroad engines below 

175 horsepower used in farm and 

construction equipment and vehicles, or 

new locomotives or locomotive engines. 

CARB states that none of its Portable 

Engine ATCM requirements apply to 

these preempted vehicles or engines.40

Again, we received no evidence to the 

contrary. We therefore cannot find that 

the New 2010 Requirements are 

inconsistent with sections 209(a) and 

209(e)(1). 

Third, to be consistent with section 

209(b)(1)(c), there must be adequate lead 

time to permit technological 

development for compliance with the 

new standards, and the state test 

procedures must not be made 

inconsistent with federal test 

procedures. 

Regarding test procedures, CARB 

maintains that the amendments do not 

alter any test procedures, and EPA does 

not have comparable in-use standards 

and test procedures; thus, by definition, 

there is no inconsistency with federal 

test procedures.41 No comments were 

received otherwise. We therefore cannot 

find that the New 2010 Requirements 

are inconsistent with federal test 

procedures. 

Regarding the existence of adequate 

lead time, CARB maintains that the New 

2010 Requirements do not require 

development of new technologies, and 

that EPA has already previously 

determined that California’s applicable 

Tier 1 through Tier 4 off-road 

compression ignition engine standards 

are technically feasible,42 thus there is 

no consistency issue presented with 

regard to lead time. As mentioned 

above, we received no comment or 

evidence contesting California’s 

positions regarding the consistency 

criterion under section 209(b)(1)(c).The 

compliance date for low use and 

emergency use engines is nearly the 

same as the original compliance date, 

and the two other changes (i.e., 

elimination of discretionary permits by 

local air districts, and specification of 

PM emission factors used to calculate 

fleet average standards) likewise do not 

raise feasibility issues. Thus, we cannot 

find any evidence indicating that the 

New 2010 Requirements do not provide 

adequate lead time or are otherwise not 

mstockstill on DSK4VPTVN1PROD with NOTICES

76690 Federal Register / Vol. 80, No. 237 / Thursday, December 10, 2015 / Notices 

technically feasible. We therefore 

cannot find that the New 2010 

Requirements that we analyzed under 

the full authorization criteria are 

inconsistent with section 209 of the Act. 

Having found that the New 2010 

Requirements satisfy each of the criteria 

for full authorization, and having 

received no contrary evidence to 

contradict this finding, we cannot deny 

authorization of the amendments. 

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 CARB’s amendments to 

its Portable Engine ATCM regulations 

described above and CARB’s 

submissions for EPA review, EPA is 

granting a within-the-scope 

authorization for the Portable Engine 

ATCM 2007, 2009, and 2010 

Amendments, other than the New 2010 

Requirements (as specified above). In 

addition, EPA is granting a full 

authorization for the New 2010 

Requirements. 

This decision will affect persons in 

California and those 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 February 8, 2016. 

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: December 1, 2015. 

Janet G. McCabe, 

Acting Assistant Administrator, Office of Air 

and Radiation. 

[FR Doc. 2015–31043 Filed 12–9–15; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL RESERVE SYSTEM 

Notice of Proposals To Engage in or 

To Acquire Companies Engaged in 

Permissible Nonbanking Activities 

The companies listed in this notice 

have given notice under section 4 of the 

Bank Holding Company Act (12 U.S.C. 

1843) (BHC Act) and Regulation Y, (12 

CFR part 225) to engage de novo, or to 

acquire or control voting securities or 

assets of a company, including the 

companies listed below, that engages 

either directly or through a subsidiary or 

other company, in a nonbanking activity 

that is listed in § 225.28 of Regulation Y 

(12 CFR 225.28) or that the Board has 

determined by Order to be closely 

related to banking and permissible for 

bank holding companies. Unless 

otherwise noted, these activities will be 

conducted throughout the United States. 

Each notice is available for inspection 

at the Federal Reserve Bank indicated. 

The notice also will be available for 

inspection at the offices of the Board of 

Governors. Interested persons may 

express their views in writing on the 

question whether the proposal complies 

with the standards of section 4 of the 

BHC Act. 

Unless otherwise noted, comments 

regarding the notices must be received 

at the Reserve Bank indicated or the 

offices of the Board of Governors not 

later than December 28, 2015. 

A. Federal Reserve Bank of 

Minneapolis (Jacquelyn K. Brunmeier, 

Assistant Vice President) 90 Hennepin 

Avenue, Minneapolis, Minnesota 

55480–0291: 

1. State Bankshares, Inc., Fargo, North 

Dakota to acquire an additional 51 

percent of the voting shares of Discovery 

Benefits, Inc., Fargo, North Dakota, and 

indirectly acquire additional voting 

shares of Discovery Benefits, Inc., Fargo, 

North Dakota, and thereby engage in 

providing consulting services to 

employee benefit, compensation and 

insurance plans, including designing 

plans, assisting in the implementation 

of plans, providing administrative 

services to plans, and developing 

employee communication programs for 

plans, pursuant to sections 225.28(b)(5), 

(b)(6)(ii), (b)(9)(ii) and (b)(14)(i), 

respectively. 

Board of Governors of the Federal Reserve 

System, December 7, 2015. 

Michael J. Lewandowski, 

Associate Secretary of the Board. 

[FR Doc. 2015–31109 Filed 12–9–15; 8:45 am] 

BILLING CODE 6210–01–P 

FEDERAL RETIREMENT THRIFT 

INVESTMENT BOARD 

Sunshine Act; Notice of Meeting/ 

Correction—Addition of #6 

TIME AND DATE: 10:00 a.m. (Eastern 

Time) December 14, 2015 (Telephonic) 

PLACE: 10th Floor Board Meeting Room, 

77 K Street NE., Washington, DC 20002. 

STATUS: Parts will be open to the public 

and parts will be closed to the public. 

MATTERS TO BE CONSIDERED: 

Open to the Public 

1. Approval of the Minutes for the 

November 25, 2015 Board Member 

Meeting 

2. Monthly Reports 

(a) Monthly Participant Activity Report 

(b) Monthly Investment Performance 

Report 

(c) Legislative Report 

3. Quarterly Metrics Report 

4. OGC Report and Annual Presentation 

Closed to the Public 

5. Security 

6. Personnel 

CONTACT PERSON FOR MORE INFORMATION: 

Kimberly Weaver, Director, Office of 

External Affairs, (202) 942–1640. 

Dated: December 8, 2015. 

James Petrick, 

General Counsel, Federal Retirement Thrift 

Investment Board. 

[FR Doc. 2015–31268 Filed 12–8–15; 4:15 pm] 

BILLING CODE 6760–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

[30Day–16–0307] 

Agency Forms Undergoing Paperwork 

Reduction Act Review 

The Centers for Disease Control and 

Prevention (CDC) has submitted the 

mstockstill on DSK4VPTVN1PROD with NOTICES