Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices 9239 

1EPA can confirm that a California requirement 

is a condition precedent to sale, titling, or 

registration, if: (1) the requirements do not 

constitute new or different standards or 

accompanying enforcement procedures, and (2) the 

requirements do not affect the basis for the previous 

waiver decision. 

2California Air Resources Board (CARB) Letter to 

EPA regarding, ‘‘Requirements to Reduce Idling 

Emissions From New and In-Use Trucks, Beginning 

in 2008; Request for Confirmation That Certain 

Requirements are not Subject to Preemption Under 

Clean Air Act Section 209(a) or Fall Within the 

Scope of Previously Granted Waivers and 

Authorizations, and Request for New Authorization 

Under Section 209(e)(2),’’ EPA–HQ–OAR–2010– 

0317–0001. 

3See California Air Resources Board (CARB), 

‘‘Final Regulation Order,’’ EPA–HQ–OAR–2010– 

0317–0011. 

requirements which have subsequently 

changed; train personnel to be able to 

respond to a collection of information; 

search data sources; complete and 

review the collection of information; 

and transmit or otherwise disclose the 

information. 

The ICR provides a detailed 

explanation of the Agency’s estimate, 

which is only briefly summarized here: 

Estimated total number of potential 

respondents: 4,589 for this ICR period. 

Frequency of response: Every five 

years, unless the facilities need to 

update their previous submission earlier 

to comply with a rule requirement. 

Estimated total average number of 

responses for each respondent: One. 

Estimated total annual burden hours: 

93,982 Hours including burden for 

implementing agencies. 

Estimated total annual costs: 

$9,785,371.00. There are no capital or 

operating and maintenance costs 

associated with this ICR since all 

sources are required to submit RMPs online using the electronic reporting 

system, RMP*eSubmit. 

What is the next step in the process for 

this ICR? 

EPA will consider the comments 

received and amend the ICR as 

appropriate. The final ICR package will 

then be submitted to OMB for review 

and approval pursuant to 5 CFR 

1320.12. At that time, EPA will issue 

another Federal Register notice 

pursuant to 5 CFR 1320.5(a)(1)(iv) to 

announce the submission of the ICR to 

OMB and the opportunity to submit 

additional comments to OMB. If you 

have any questions about this ICR or the 

approval process, please contact the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

Dated: February 8, 2012. 

R. Craig Matthiessen, 

Acting Director, Office of Emergency 

Management. 

[FR Doc. 2012–3694 Filed 2–15–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9633–1] 

California State Motor Vehicle and 

Nonroad Engine Pollution Control 

Standards; Truck Idling Requirements; 

Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 

SUMMARY: EPA has granted the 

California Air Resources Board (CARB) 

its request for a waiver of preemption 

and authorization to adopt and enforce 

California’s Truck Idling Requirements. 

CARB’s Truck Idling Requirements 

apply to new California-certified 2008 

and subsequent model year heavy-duty 

diesel engines in heavy-duty diesel 

vehicles with a gross vehicle weight 

rating over 14,000 pounds, and to in-use 

diesel-fueled commercial vehicles with 

gross vehicle weight ratings over 10,000 

pounds that are equipped with sleeper 

berths. 

DATES: Petitions for review must be filed 

by April 16, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2010–0317. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, and public comments, 

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-rDocket@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–2010–0317 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 and Innovative Strategies 

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 Truck Idling 

Requirements 

By letter dated May 9, 2008, CARB 

informed EPA that it had adopted its 

Truck Idling Requirements, and 

requested that EPA confirm that certain 

provisions of the requirements are not 

preempted by sections 209(a) of the 

Clean Air Act (Act); certain provisions 

are conditions precedent pursuant to 

section 209(a) of the Act; 1 certain 

provisions are within-the-scope of 

previous waivers and authorizations 

issued pursuant to sections 209(b) and 

209(e) of the Act, respectively; and at 

least one provision requires and merits 

a full authorization pursuant to section 

209(e) of the Act.2 CARB’s 2008 Truck 

Idling Requirements became effective 

California state law on November 15, 

2006, amending title 13, California Code 

of Regulations (CCR) sections 1956.8, 

2404, 2424, 2425, and 2485.3

CARB’s Truck Idling Requirements 

consist of three elements: (1) ‘‘New 

engine requirements’’ that require new 

California-certified 2008 and subsequent 

model year on-road diesel engines in 

vehicles with a gross vehicle weight 

rating (GVWR) greater than 14,000 

pounds (i.e., heavy-duty diesel vehicles 

or ‘‘HDDV’’s) be equipped with a system 

that automatically shuts down the 

engine after five minutes of continuous 

idling; (2) ‘‘sleeper truck requirements’’ 

that require the operator of a sleeper 

truck to manually shut down the engine 

after five minutes of continuous idling; 


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4See California Air Resources Board (CARB), 

‘‘Waiver and Authorization Action Support 

Document,’’ pp. 1–13, EPA–HQ–OAR–2010–0317– 

0002 (hereinafter ‘‘CARB Support Document’’). 

5CARB believes this requirement is within-thescope of the previous authorization for new 

nonroad engine standards because that 

authorization already allows enforcement of 

California’s requirement that any new APS engine 

acquired since the 2000 model year is required to 

meet the California or federal nonroad engine 

emission standards. See 75 FR 8056 (February 23, 

2010). 

6The additional requirements are one of the 

following: (a) Exhaust routed into the truck’s 

exhaust system and PM trap; (b) a level 3 verified 

PM control strategy; or (c) use of other procedures 

to demonstrate an equivalent level of emissions 

compliance. 

7See S.Rep. No. 90–403 at 632 (1967). 

8CAA section 209(b)(1)(A). 

9CAA section 209(b)(1)(B). 

10CAA section 209(b)(1)(C). 

11See, e.g., 74 FR 32767 (July 8, 2009); see also 

Motor and Equipment Manufacturers Association v. 

EPA (MEMA I), 627 F.2d 1095, 1126 (D.C. Cir. 

1979). 

12 ‘‘Once California receives a waiver for 

standards for a certain class of motor vehicles, it 

need only meet the waiver criteria of section 209(b) 

for regulations pertaining to those vehicles when it 

adopts new or different standards or accompanying 

enforcement procedures. Otherwise, California may 

adopt any other condition precedent to the initial 

retail sale, titling, or registration of those vehicles 

without the necessity of receiving a further waiver 

of Federal preemption.’’ 43 FR 36680 (August 18, 

1978). 

13See also Engine Mfrs. Ass’n v. EPA, 88 F.3d 

1075, 1094 (D.C. Cir. 1996). 

and (3) ‘‘alternative technology 

requirements’’ that establish in-use 

performance standards for HDDV 

operators who use alternative 

technologies to supply power for truck 

cab or sleeper berth climate control and/ 

or other on-board accessories that 

otherwise would have been generated 

by the continuous idling of the truck’s 

main engine.4 CARB requests, first, that 

EPA confirm that its new engine 

requirements are not preempted by 

section 209(a) of the Act, or that they are 

other conditions precedent required 

prior to the initial sale of new heavyduty diesel engines. Alternatively, 

CARB requests that if EPA concludes 

that the new engine requirements are 

preempted by section 209(a) of the Act, 

then EPA confirm that the requirements 

are within the scope of EPA’s previously 

issued waiver for 2007 and later model 

year heavy-duty diesel engines. Second, 

CARB requests that EPA confirm that its 

sleeper truck requirements are purely 

operational controls, which are not 

preempted by section 209(a) of the Act. 

Third, CARB requests the following 

determinations from EPA with respect 

to its alternative technology 

requirements: (1) A within-the-scope 

confirmation for its requirement that an 

alternative power supply (APS) may 

only be operated if that engine has been 

certified to meet either applicable 

California off-road or federal nonroad 

emission standards and test procedures 

for its fuel type and power category; 5 (2) 

a full authorization for its requirement 

that a driver may not operate a dieselfueled APS engine on a vehicle with a 

primary engine certified to the 2007 and 

subsequent model year standards unless 

the APS is certified to meet the 

applicable California or federal standard 

and meets one of three additional 

requirements; 6 and (3) a determination 

that its requirements pertaining to fuelfired heaters, batteries, fuel cells, and 

power inverter/chargers for on-shore 

power are not preempted by section 

209. 

B. Clean Air Act New Motor Vehicle 

Waivers of Preemption 

Section 209(a) of the Clean Air Act 

preempts states and local governments 

from setting emission standards for new 

motor vehicles and engines; it provides: 

No State or any political subdivision 

thereof shall adopt or attempt to enforce any 

standard relating to the control of emissions 

from new motor vehicles or new motor 

vehicle engines subject to this part. No state 

shall require certification, inspection or any 

other approval relating to the control of 

emissions from any new motor vehicle or 

new motor vehicle engine as condition 

precedent to the initial retail sale, titling (if 

any), or registration of such motor vehicle, 

motor vehicle engine, or equipment. 

Through operation of section 209(b) of 

the Act, California is able to seek and 

receive a waiver of section 209(a)’s 

preemption. If certain criteria are met, 

section 209(b)(1) of the Act requires the 

Administrator, after notice and 

opportunity for public hearing, to waive 

application of the prohibitions of 

section 209(a). Section 209(b)(1) only 

allows a waiver to be granted for any 

State that had adopted standards (other 

than crankcase emission standards) for 

the control of emissions from new motor 

vehicles or new motor vehicle engines 

prior to March 30, 1966, if the State 

determines that its standards will be, in 

the aggregate, at least as protective of 

public health and welfare as applicable 

federal standards (i.e., if such State 

makes a ‘‘protectiveness 

determination’’). Because California was 

the only state to have adopted standards 

prior to 1966, it is the only state that is 

qualified to seek and receive a waiver.7

The Administrator must grant a waiver 

unless she finds that: (A) California’s 

above-noted ‘‘protectiveness 

determination’’ is arbitrary and 

capricious; 8 (B) California does not 

need such State standards to meet 

compelling and extraordinary 

conditions; 9 or (C) California’s 

standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act.10 EPA has previously stated that 

consistency with section 202(a) requires 

that California’s standards must be 

technologically feasible within the lead 

time provided, giving due consideration 

of costs, and that California and 

applicable federal test procedures be 

consistent.11

The second sentence of section 209(a) 

of the Act prevents states from 

requiring, ‘‘certification, inspection or 

any other approval relating to the 

control of emissions from any new 

motor vehicle or new motor vehicle 

engine as condition precedent to the 

initial retail sale, titling (if any), or 

registration of such motor vehicle, 

motor vehicle engine, or equipment.’’ 

However, once EPA has granted 

California a waiver of section 209(a)’s 

preemption for emission standards and/ 

or accompanying enforcement 

procedures, California may then require 

other such conditions precedent.12 EPA 

can confirm that a California 

requirement is a condition precedent to 

sale, titling, or registration, if: (1) The 

requirements do not constitute new or 

different standards or accompanying 

enforcement procedures, and (2) the 

requirements do not affect the basis for 

the previous waiver decision. 

In contrast to section 209(a)’s 

preemption of state adoption of 

standards controlling emissions from 

new motor vehicles and motor vehicle 

engines, section 209(d) of the Act 

explicitly preserves states’ ability to 

regulate vehicles and engines in use. 

Section 209(d) provides that despite 

section 209(a)’s preemption, ‘‘Nothing 

in this part shall preclude or deny to 

any State or political subdivision 

thereof the right otherwise to control, 

regulate, or restrict the use, operation, or 

movement of registered or licensed 

motor vehicles.’’ 13

C. 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. 

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

Administrator to grant California 

authorization to enforce its own 


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Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices 9241 

14The 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. 

15See 59 FR 36969 (July 20, 1994). 

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

17 Id. 

18 Id. 

19 Id. 

20See, e.g., 40 FR 21102–103 (May 28, 1975). 

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

standards for new nonroad engines or 

vehicles, which are not listed under 

section 209(e)(1), subject to certain 

restrictions. On July 20, 1994, EPA 

promulgated a rule that sets forth, 

among other things, 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. On October 8, 2008, the 

regulations promulgated in that rule 

were moved to 40 CFR Part 1074, and 

modified slightly.14 As stated in the 

preamble to the section 209(e) 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).15

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. 

D. Within-the-Scope Determinations 

If California amends regulations that 

were previously granted a waiver of 

preemption, EPA can confirm that the 

amended regulations are within the 

scope of the previously granted waiver. 

Such within-the-scope amendments are 

permissible without a full waiver review 

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 waivers. 

E. Burden of Proof 

In Motor and Equip. Mfrs Assoc. v. 

EPA, 627 F.2d 1095 (DC 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.16

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.’’ 17

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.18 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.19

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.’’ 20

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.21

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 


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9242 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices 

22 Id. at 1126. 

23 Id. at 1126. 

24 75 FR 8056 (February 23, 2010). 

25The additional requirements are one of the 

following: (a) Exhaust routed into the truck’s 

exhaust system and PM trap; (b) a level 3 verified 

PM control strategy; or (c) use of other procedures 

to demonstrate an equivalent level of emissions 

compliance. 

26American Truck Associations (‘‘ATA’’), 

‘‘Docket ID No. EPA–HQ–OAR–2010–0317,’’ 

September 30, 2010, EPA–HQ–OAR–2010–0317– 

0017, September 30, 2010 (hereinafter ‘‘ATA 

Comments’’). 

27Owner-Operator Independent Drivers 

Association Inc. (‘‘OOIDA’’), ‘‘Initial Comments of 

Owner-Operator Independent Drivers Association & 

Request for Additional Time to Provide Additional 

Comments,’’ October 1, 2010 (hereinafter ‘‘OOIDA 

Comments’’). 

28CARB, Additional Information to Support 

California’s Request for Waiver and Authorization 

Actions for California’s 2008 Truck Idling 

Requirements, and Response to Comments 

Submitted by Parties Opposing California’s Waiver 

and Authorization Request; Docket ID No. EPA– 

HQ–2010–0317,’’ EPA–HQ–OAR–2010–0317–1109, 

February 23, 2010 (hereinafter ‘‘CARB 

Supplemental Comments’’). 

29Association of American Railroads et. al. v. 

South Coast Air Quality Management District, et. 

al., case number 07–55804 (9th Cir. 2010), available 

at http://www.ca9.uscourts.gov/datastore/opinions/ 

2010/09/15/07–55804.pdf. 

decision set aside as ‘arbitrary and 

capricious.’’’ 22 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 23

F. EPA’s Administrative Process in 

Consideration of California’s Truck 

Idling Requirements 

Upon review of CARB’s request, EPA 

invited public comment on the entire 

request, including but not limited to the 

following issues. 

First, we asked whether we should 

consider CARB’s new engine 

requirements as non-preempted 

operational controls, or as conditions 

precedent. In the alternative, should we 

determine that CARB’s new engine 

requirements must be treated as 

standards relating to the control of 

emissions or accompanying 

enforcement procedures, we asked 

whether they be subject to and meet the 

criteria for EPA to confirm that they are 

within-the-scope of EPA’s waiver for 

new heavy-duty diesel engines for 2007 

and subsequent model years. To the 

extent the new engine requirements 

should be treated as standards relating 

to the control of emissions or 

accompanying enforcement procedures 

and require a full waiver from EPA, we 

asked whether the requirements meet 

the full waiver criteria. 

Second, we asked whether CARB’s 

sleeper truck requirements properly 

should be considered an operational 

control and thus not preempted by 

section 209 of the Act. To the extent that 

CARB’s sleeper truck requirements 

should be treated as standards relating 

to the control of emissions from new 

motor vehicles or engines or 

accompanying enforcement procedures 

and require a full waiver from EPA, we 

sought comment on whether the 

requirements meet the criteria for a full 

waiver. 

Third, with respect to CARB’s 

alternative technology requirements, 

EPA sought comment on the following 

specific questions: (1) Does CARB’s 

requirement that an APS using an 

internal combustion engine be certified 

to meet either California off-road or 

federal nonroad emission standards and 

test procedures meet the requirements 

for finding that it is within-the-scope of 

the authorization EPA issued for new 

nonroad engine standards, thus not 

requiring a full authorization?; 24 (2) If 

not, does CARB’s requirement that an 

APS using an internal combustion 

engine be certified to meet either 

California off-road or federal nonroad 

emission standards and test procedures 

meet the requirements for a full 

authorization?; (3) Does CARB’s 

requirement that a diesel-fueled APS 

engine be certified to the California or 

federal 2007 and subsequent model year 

standards and meet one of three other 

listed requirements 25 meet the criteria 

for a full authorization?; and (4) Are 

CARB’s requirements pertaining to fuelfired heaters, batteries, fuel cells, power 

inverter/chargers for on-shore power, 

and truck electrification preempted 

under section 209 of the Clean Air Act, 

and if so, do they meet the requirements 

for waiver under section 209(b) or 

authorization under section 209(e)? 

As called out by those specific 

questions, EPA sought threshold input 

on whether to treat various elements of 

CARB’s Truck Idling Requirements as 

conditions precedent, within the scope 

of previous waivers and authorizations, 

not preempted by section 209, or in 

need of a full waiver or authorization. 

We also sought substantive comment on 

whether the various elements of CARB’s 

Truck Idling Requirements meet the 

applicable criteria for confirmation as 

conditions precedent, within the scope, 

non-preemption, and full waiver or 

authorization. 

In response to EPA’s July 27, 2010 

Federal Register notice, EPA received 

three written comments and no request 

for a public hearing. The written 

comments are from the American 

Trucking Associations (‘‘ATA’’),26 the 

Owner-Operator Independent Drivers 

Association, Inc. (‘‘OOIDA’’),27 and 

CARB.28

ATA’s comments specifically oppose 

California’s ‘‘alternative technology 

requirements,’’ which establish in-use 

performance standards for HDDV 

operators who use alternative 

technologies (e.g., auxiliary power 

units) to supply power for truck cab or 

sleeper berth climate control and/or 

other on-board accessories that 

otherwise would have been generated 

by the continuous idling of the truck’s 

main engine. ATA comments that those 

requirements are not consistent with 

sections 202(a) and 209(e) of the Clean 

Air Act. 

OOIDA’s comments address issues it 

believes have been overlooked by EPA, 

including ‘‘CARB’s delay in requesting 

EPA review of Truck Idling 

Requirements without waiting for an 

EPA determination; CARB’s premature 

implementation and enforcement of 

those Requirements without waiting for 

an EPA determination; and CARB’s 

failure to consider the potential adverse 

impact of these requirements on the 

health and welfare of the affected truck 

drivers.’’ OOIDA also suggested that the 

Truck Idling Requirements may be 

preempted by federal law other than the 

Clean Air Act. OOIDA also requested an 

additional forty-five days—until 

November 15, 2010—to fully evaluate a 

recent decision by the United States 

Court of Appeals for the Ninth Circuit, 

Association of American Railroads et. 

al. v. South Coast Air Quality 

Management District, et. al., case 

number 07–55804.29 EPA did not 

formally extend the written comment 

period pursuant to this request, but did 

communicate to OOIDA that it would 

consider any written comments received 

before the Agency reached its final 

decision. OOIDA did not submit any 

further comments prior to EPA’s final 

decision, published here today. 

CARB submitted additional 

information in the form of supplemental 

comments to update its request in light 

of EPA’s authorization of California’s 

new nonroad compression-ignition 

regulations, and information regarding 

technological feasibility. CARB also 

responded to EPA’s request for 

comments, and the comments EPA 

received from ATA and OOIDA. CARB’s 

supplemental comments assert that 

ATA and OOIDA have failed to meet 

their burden of proof for a denial. CARB 

further requests that EPA grant 

California its requested waiver and 

authorizations to adopt and enforce its 

Truck Idling Requirements. 

II. Discussion 

California’s Truck Idling 

Requirements feature four general sets 

of requirements: Those applicable to 


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30CARB Support Document at 31. 

31Manufacturers current designs and system 

capabilities are more appropriately evaluated under 

the CAA section 209(b)(1)(C) technological 

feasibility criterion. 

32CARB Resolution 05–55, EPA–HQ–OAR–2010– 

0008, ‘‘Be It Further Resolved that the Board hereby 

determines that the regulations adopted herein will 

Continued 

new engines, those applicable to sleeper 

trucks, alternative technology 

requirements, and labeling 

requirements. 

A. California’s New Engine 

Requirements 

The new engine requirements 

imposed by California’s Truck Idling 

Requirements establish two compliance 

options for new California certified 2008 

and subsequent model year heavy-duty 

diesel engines installed in trucks with a 

gross vehicle weight rating greater than 

14,000 pounds. The first compliance 

option requires engine manufacturers to 

install a system that automatically shuts 

down the engine after five minutes of 

continuous idle operation. The second 

compliance option is an optional NOX

idling emission standard of 30 grams 

per hour. 

CARB presents, first, that the new 

engine requirements are akin to 

operational controls on in-use vehicles 

and, accordingly, they are not 

preempted by Clean Air Act section 

209(b). Alternatively, CARB argues that 

the new engine requirements are ‘‘other 

conditions precedent’’ to initial sale, 

titling, or registration that fall within the 

scope of the waiver of preemption EPA 

issued for California’s 2007 and 

subsequent model year heavy-duty 

diesel engine standards. Last, CARB 

argues that should EPA determine that 

the new engine requirements constitute 

standards relating to the control of 

emissions from new motor vehicle 

engines, such requirements fall within 

the scope of previous waivers of 

preemption. Thus, EPA must first 

determine what type of control the 

California new engine requirements 

impose before proceeding with an 

analysis of whether California meets the 

necessary Clean Air Act requirements 

under section 209. 

To address these issues, EPA asked 

the first set of questions in the July 27, 

2010 Federal Register notice. We asked 

whether we should consider CARB’s 

new engine requirements as nonpreempted operational controls, or as 

conditions precedent. In the alternative, 

we asked if we determine that CARB’s 

new engine requirements must be 

treated as standards relating to the 

control of emissions or accompanying 

enforcement procedures, whether they 

be subject to and meet the criteria for 

EPA to confirm that they are within-thescope of EPA’s waiver for new heavyduty diesel engines for 2007 and 

subsequent model years. To the extent 

the new engine requirements should be 

treated as standards relating to the 

control of emissions or accompanying 

enforcement procedures and require a 

full waiver from EPA, we asked whether 

the requirements meet the full waiver 

criteria. 

1. Application of Section 209(b) Waiver 

Criteria 

EPA received no comments in 

response to the issues EPA raised for 

comment with respect to California’s 

new engine requirements. 

Despite CARB’s contentions, EPA has 

determined that California’s new engine 

requirements are standards relating to 

the control of emissions that require a 

full waiver of preemption from EPA. 

CARB believes that the United States 

Supreme Court’s interpretation of 

‘‘standard relating to the control of 

emissions from new motor vehicles or 

new motor vehicle engines’’ in Engine 

Manufacturers Association v. South 

Coast Air Quality Management District, 

541 U.S. 246 (2004) supports its 

position that the California new engine 

requirements are not standards relating 

to the control of emissions. To the 

contrary, EPA believes that the Supreme 

Court’s interpretation supports the 

conclusion that California’s new engine 

requirements should be considered as 

standards relating to the control of 

emissions. The primary compliance 

option of the new engine requirements 

requires new 2008 and later model year 

heavy-duty diesel engines to be 

equipped with idling shutdown 

systems. CARB presents that the 

primary compliance option does not 

establish a numerical emission 

standard, and does not require 

additional emission control devices or 

design features related to the control of 

emissions. While it is clear that 

requiring a shutdown system does not 

establish a numerical emission 

standard, it is also clear that requiring 

manufacturers to design their engines 

with a shutdown system to control truck 

idling emissions does impose a 

requirement upon manufacturers, for 

the purpose of limiting emissions. Even 

though this requirement imposes itself 

as a design requirement and not as an 

emissions performance standard, it is 

nevertheless a requirement related to 

emission reduction. Furthermore, the 

Supreme Court in EMA v. South Coast 

explicitly contemplated that a ‘‘design 

feature related to the control of 

emissions’’ would be considered a 

standard relating to the control of 

emissions. Additionally, California’s 

optional NOX idling standard, as an 

alternative compliance option, makes 

clear what the force and effect of the 

new engine requirements is—to limit 

emissions from idling trucks by 

imposing a requirement on new engines. 

Thus, EPA has determined that 

California’s new engine requirements 

are standards relating to the control of 

emissions; and therefore, EPA has 

evaluated the new engine requirements 

by application of the full waiver criteria. 

CARB alternatively requested that 

EPA evaluate California’s new engine 

requirements by application of EPA’s 

within-the-scope criteria. However, the 

new engine requirements impose an 

additional design requirement upon 

engine manufacturers, which is a ‘‘new 

issue’’ and cautions against application 

of the within-the-scope criteria. CARB 

believes its requirement that 

manufacturers include an engine 

shutdown system does not present a 

‘‘new issue’’ because it ‘‘will only 

require manufacturers to perform minor 

reprogramming of the software 

incorporated in existing engine or 

vehicle computers, and will not require 

any modifications to hardware.’’ 30 In 

contrast, EPA believes that 

manufacturers existing designs do not 

factor into our analysis here.31 EPA 

views the additional design requirement 

imposed upon manufacturers as a new 

regulatory issue, which was not 

considered in our previous waiver for 

California’s 2007 and subsequent model 

year heavy-duty diesel standards. 

Therefore, as stated above, we have 

applied the full waiver criteria to 

California’s request. 

2. California’s Protectiveness 

Determination 

Section 209(b)(1)(A) of the Clean Air 

Act requires EPA to deny a waiver if the 

Administrator finds that California was 

arbitrary and capricious in its 

determination that its State standards 

will be, in the aggregate, at least as 

protective of public health and welfare 

as applicable federal standards. When 

evaluating California’s protectiveness 

determination, EPA compares the 

stringency of the California and federal 

standards at issue in a given waiver 

request. That comparison is undertaken 

within the broader context of the 

previously waived California program, 

which relies upon protectiveness 

determinations that EPA previously 

found were not arbitrary and capricious. 

When California adopted its Truck 

Idling Requirements, the CARB Board 

made its protectiveness finding in its 

Resolution 05–55.32 That protectiveness 


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not cause California motor vehicle emission 

standards, in the aggregate, to be less protective of 

the public health and welfare than applicable 

federal standards.’’ 

33 70 FR 50322 (August 26, 2005). 

34CARB Support Document at 27. 

35CARB Supplemental Comments at 6. 

36See, e.g., Approval and Promulgation of State 

Implementation Plans; California—South Coast, 64 

FR 1770, 1771 (January 12, 1999). See also 69 FR 

23858, 23881–90 (April 30, 2004) (designating 15 

areas in California as nonattainment for the federal 

8-hour ozone national ambient air quality standard). 

37 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). 

38CARB Support Document at 27. 

39CARB Support Document at 28–29. 

40 Id. at 28; see also CARB, ‘‘Staff Report: Initial 

Statement of Reasons,’’ EPA–HQ–OAR–2010–0317– 

0005, (hereinafter ‘‘ISOR’’), at 37. 

41CARB Support Document at 30. 

42CARB Support Document at 31. 

43 Id. 

determination was made against the 

background of California’s previous 

protectiveness determination for its 

2007 and subsequent model year heavy 

duty diesel standards, which EPA 

previously found was not arbitrary and 

capricious.33 Compared to the federal 

standards, California’s 2007 and 

subsequent model year heavy-duty 

diesel standards are numerically 

equivalent. Furthermore, CARB asserts 

that it’s Truck Idling Requirements ‘‘in 

no way reduce the stringency of either 

the underlying exhaust emission 

standards or the associated test 

procedures.’’ 34 Notably, the new engine 

requirements California is imposing 

within its Truck Idling Requirements 

are an additional requirement beyond 

that which is required by EPA’s federal 

standards. Thus, CARB presents that 

EPA has ‘‘no basis for finding that 

CARB’’ made its protectiveness 

determination arbitrarily or 

capriciously.35

No commenter expressed an opinion 

or presented any evidence suggesting 

that CARB was arbitrary and capricious 

in making its above-noted 

protectiveness findings. Therefore, 

based on the record, EPA cannot find 

that California was arbitrary and 

capricious in its findings that 

California’s new engine requirements 

are, in the aggregate, at least as 

protective of public health and welfare 

as applicable federal standards. 

3. California’s Need for State Standards 

To Meet Compelling and Extraordinary 

Conditions 

Under section 209(b)(1)(B) of the Act, 

EPA cannot grant a waiver if California 

‘‘does not need such State standards to 

meet compelling and extraordinary 

conditions.’’ To evaluate this criterion, 

EPA considers whether California needs 

a separate motor vehicle emissions 

program to meet compelling and 

extraordinary conditions. 

Over the past forty years, CARB has 

repeatedly demonstrated the need for its 

motor vehicle emissions program to 

address compelling and extraordinary 

conditions in California.36 In its 

Resolution 05–55, 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.’’ 37 Furthermore, no 

commenter has presented any argument 

or evidence to suggest that California no 

longer needs a separate motor vehicle 

emissions program to address 

compelling and extraordinary 

conditions in California. Therefore, EPA 

has determined that we cannot deny 

California a waiver for its new engine 

requirements under section 209(b)(1)(B). 

4. Consistency With Section 202(a) of 

the Clean Air Act 

Under section 209(b)(1)(C) of the Act, 

EPA must deny a California waiver 

request if the Agency finds that 

California standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act. The scope of EPA’s review under 

this criterion is narrow. EPA has stated 

on many occasions that the 

determination is limited to whether 

those opposed to the waiver have met 

their burden of establishing that 

California’s standards are 

technologically infeasible, or that 

California’s test procedures impose 

requirements inconsistent with federal 

test procedures. Previous waivers of 

federal preemption have stated that 

California’s standards are not consistent 

with section 202(a) 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 be inconsistent with 

section 202(a) if the federal and 

California test procedures conflict, i.e., 

if manufacturers would be unable to 

meet both the California and federal test 

requirements with the same test vehicle. 

California presents that its new engine 

requirements are currently 

technologically feasible, with 

appropriate consideration given to cost, 

and do not impose inconsistent 

certification requirements.38 First, 

CARB presents information regarding 

the current technological feasibility of 

the engine shutdown compliance 

option: ‘‘The technology needed to 

comply with the new engine shutdown 

system option presently exists, and in 

fact has been widely available as a 

standard feature in most commercially 

available on-road heavy-duty 

engines.’’ 39 CARB notes that a number 

of manufacturers already include such 

technology in their engines, but most 

fleet owners and operators do not 

activate it. For manufacturers who did 

not include such technology in their 

engines, CARB staff notes that only 

minor modifications would be needed. 

The costs associated with modifications, 

as estimated by CARB staff, are 

minimal—‘‘$100 per engine to cover 

additional administrative costs and 

minimal reprogramming costs.’’ 40 Next, 

CARB presents information regarding 

the technological feasibility of the 

optional NOX idling standard.41

Significantly, CARB notes that many 

manufacturers have either already 

certified to the optional NOX standard 

or intend to in future model years. 

These manufacturers have implemented 

strategies to meet the optional NOX

idling standard without adding any 

additional hardware or modifications to 

their emission control systems or 

components. Manufacturers have 

certified to the standard merely by 

making modifications to their existing 

software (e.g., by modifying exhaust gas 

recirculation rates and/or the pulse of 

the fuel injectors during idle operating 

modes). Last, CARB presents 

information regarding the effect of 

California’s new engine requirements on 

manufacturers’ existing certification 

requirements. CARB asserts that: 

‘‘Neither the new engine shutdown 

system nor the optional NOX idling 

emission standard option present any 

issues of test procedure inconsistency 

because there are no analogous federal 

requirements.’’ 42 CARB also confirms 

that manufacturers may conduct one set 

of tests to determine compliance with 

both California and federal 

requirements.43

No commenter expressed any 

disagreement with these statements 

from CARB, and no commenter 

presented any evidence opposing 

CARB’s assertions regarding 

technological feasibility, lead-time, and 

cost of compliance. Therefore, EPA is 

unable to find that California’s new 

engine requirements are not 

technologically feasible within the 


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44 75 FR 8056 (February 23, 2010). 

45The additional requirements are one of the 

following: (a) Exhaust routed into the truck’s 

exhaust system and PM trap; (b) a level 3 verified 

PM control strategy; or (c) use of other procedures 

to demonstrate an equivalent level of emissions 

compliance. 

available lead-time, giving appropriate 

consideration to the cost of compliance. 

5. Full Waiver of Preemption 

Determination for California’s New 

Engine Requirements 

After a review of the information 

submitted by CARB and other parties to 

this proceeding, EPA finds that those 

opposing California’s request have not 

met the burden of demonstrating that a 

waiver for California’s new engine 

requirements should be denied based on 

any of the three statutory criteria of 

section 209(b)(1). For this reason, EPA 

finds that California’s new engine 

requirements should receive a full 

waiver of preemption. 

B. California’s Sleeper Truck 

Requirements 

California’s Truck Idling 

Requirements impose a new 

requirement on the operators of sleeper 

berth equipped heavy-duty diesel 

vehicles. Sleeper truck operators will 

now be required to manually shut off 

engines after five minutes of continuous 

idling. To address CARB’s sleeper truck 

requirements, EPA asked the second set 

of questions in the July 27, 2010 Federal 

Register notice. We asked whether 

CARB’s sleeper truck requirements 

properly should be considered an 

operational control and thus not 

preempted by section 209 of the Act. To 

the extent that CARB’s sleeper truck 

requirements should be treated as 

standards relating to the control of 

emissions from new motor vehicles or 

engines or accompanying enforcement 

procedures and require a full waiver 

from EPA, we sought comment on 

whether the requirements meet the 

criteria for a full waiver. 

1. California’s Sleeper Truck 

Requirements Do Not Require a Waiver 

From EPA 

California asserts that the sleeper 

truck requirements are an in-use 

operational control of motor vehicles 

and do not require a waiver of 

preemption. Since the sleeper truck 

requirements only apply to in-use motor 

vehicles, and Clean Air Act section 

209(a) preemption only applies to new 

motor vehicles and engines, CARB 

asserts that section 209(a) preemption 

does not apply to these requirements. 

Additionally, CARB points towards 

section 209(d) of the Act, which states: 

‘‘Nothing in this part shall preclude or 

deny to any State or political 

subdivision thereof the right otherwise 

to control, regulate, or restrict the use, 

operation, or movement of registered 

vehicles.’’ Read together, sections 209(a) 

and 209(d) make clear that operational 

controls, such as idling limits directed 

towards the operator of the vehicle, are 

not preempted and do not need a waiver 

of preemption pursuant to section 

209(b). EPA agrees with this analysis 

and does not believe that in-use 

controls, such as idling limits, are 

preempted by section 209(a). Therefore, 

California’s sleeper truck requirements 

do not require a waiver of preemption 

under section 209(b) of the Act. 

2. Other Issues 

OOIDA comments that the sleeper 

truck idling requirements will have an 

adverse effect on the health and welfare 

of drivers. This comment is inapplicable 

to EPA’s analysis here, because as stated 

above, EPA has found that the sleeper 

truck requirements are not preempted 

under section 209(a). Therefore, EPA 

has no authority to evaluate California’s 

sleeper truck requirements. To the 

extent this comment suggests that 

California’s protectiveness 

determination for its alternative 

technology requirements was arbitrary 

and capricious, we have addressed that 

issue below. 

C. California’s Alternative Technology 

Requirements 

CARB anticipated that truck operators 

would likely utilize alternative 

technologies to power truck cabins, 

sleeper berths, and/or other on-board 

accessories that previously would have 

been powered by the truck’s main 

engine. Such alternative technologies 

include internal combustion engine 

powered alternative power sources 

(‘‘APSs’’) and fuel-fired heaters. To 

account for the increased particulate 

matter (PM) emissions that would be 

generated by inclusion of these 

alternative technologies on heavy-duty 

diesel vehicles, CARB developed 

alternative technology requirements. 

CARB’s general alternative technology 

requirement is that internal combustion 

engines used in APSs must be certified 

to the California or federal nonroad 

emission standards and test procedures 

applicable to the fuel type and 

horsepower category of the engines. 

CARB also imposes specific 

requirements for diesel-fueled APSs, 

dependent upon model year. For 2007 

and later model year heavy-duty diesel 

trucks, a diesel-fueled APS must comply 

with California or federal nonroad 

emission standards and one of three 

additional requirements: (1) Route their 

exhaust into the truck’s exhaust system 

so that the APS’s PM emissions are 

controlled by the truck’s PM trap; or (2) 

be equipped with a level 3 verified PM 

control strategy (i.e., achieve an 85 

percent PM reduction efficiency); or (3) 

obtain advance CARB approval to use 

other procedures to demonstrate an 

equivalent level of emission 

compliance. For 2006 and older model 

year trucks, diesel-fueled APS need only 

comply with the California or federal 

nonroad emission standards and test 

procedures applicable to the 

horsepower category of the engines. 

With respect to CARB’s alternative 

technology requirements, in the July 27, 

2010 Federal Register notice, EPA 

sought comment on the following 

specific questions: (1) Does CARB’s 

requirement that an APS using an 

internal combustion engine be certified 

to meet either California off-road or 

federal nonroad emission standards and 

test procedures meet the requirements 

for finding that it is within-the-scope of 

the authorization EPA issued for new 

nonroad engine standards, thus not 

requiring a full authorization?; 44 (2) If 

not, does CARB’s requirement that an 

APS using an internal combustion 

engine be certified to meet either 

California off-road or federal nonroad 

emission standards and test procedures 

meet the requirements for a full 

authorization?; and (3) Does CARB’s 

requirement that a diesel-fueled APS 

engine be certified to the California or 

federal 2007 and subsequent model year 

standards and meet one of three other 

listed requirements 45 meet the criteria 

for a full authorization? 

1. Application of Full Authorization 

Analysis 

With respect to the threshold question 

EPA asked as to which waiver analysis 

to apply to CARB’s APS requirements, 

EPA received no comments. CARB 

asserts that because its APS 

requirements are linked to preexisting 

federal or California standards and 

certification requirements, the new APS 

requirements are within the scope of the 

prior authorizations for these engines. 

However, EPA does not believe that a 

within-the-scope analysis is appropriate 

in this circumstance. In the past, EPA 

has reviewed amendments to previously 

waived or authorized California 

standards for a determination of 

whether those amendments were within 

the scope of the previously waived or 

authorized standards. Here though, the 

APS requirements as imposed by 

California’s Truck Idling Requirements 

are not amendments, but new 

regulations. Even though the APS 


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46CARB Resolution 05–55, EPA–HQ–OAR–2010– 

0008, ‘‘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 this Airborne Toxic 

Control Measure are, in the aggregate, at least as 

protective of public health and welfare as 

applicable federal standards * * * ’’ 

47CARB Support Document at 34; see EMA v. 

EPA, 88 F.3d 1075 at 1089–1090. 

48OOIDA Comments at 4. 

49CARB Supplemental Comments at 10. 

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

requirements link to and rely upon 

previously authorized standards, they 

are newly applicable to all APS engines 

used in on-highway heavy-duty diesel 

vehicles, regardless of the model year of 

the engine. Because this is an additional 

requirement beyond that contemplated 

in previous nonroad and on-highway 

authorizations, EPA cannot apply its 

within-the-scope construct. Thus, we 

have reviewed all of California’s APS 

requirements by application of our full 

authorization analysis. 

2. 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 05–55, finding that 

California’s Truck Idling Requirements 

will not cause the California emission 

standards, in the aggregate, to be less 

protective of public health and welfare 

than applicable federal standards.46

Furthermore, CARB asserts that ‘‘there 

is no question’’ its APS requirements are 

at least as protective of public health 

and welfare as applicable federal 

standards. To make this assertion, CARB 

highlights that EPA is authorized to 

regulate new nonroad engines, and only 

California may adopt emission 

standards and other emission-related 

requirements for in-use nonroad 

engines.47 Accordingly, CARB points 

out that EPA has not adopted any 

emission standards or other 

requirements applicable to in-use APS 

engines. 

EPA received one comment 

challenging California’s protectiveness 

determination with respect to the APS 

requirements. OOIDA comments that 

‘‘in determining whether CARB’s 

sleeper truck and alternative power 

source requirements should be 

approved, under any analysis, EPA 

should take care to fully consider and 

balance against the benefits to be gained 

by reducing emissions from idling 

sleeper trucks, the very real adverse 

impact such a requirement would have 

on the health and welfare of the 

operators of those trucks and negative 

effects on highway safety from truck 

operators not being properly rested.’’ 48

CARB counters that ‘‘OOIDA’s argument 

fails to present ‘clear and compelling’ 

evidence that California’s protectiveness 

determinations are arbitrary and 

capricious; instead, it is only based on 

OOIDA’s assumptions regarding the 

financial status and individual business 

decisions of numerous affected 

entities.’’ 49 EPA’s review of California’s 

protectiveness determination is limited 

under section 209(e)(2)(i). The Agency’s 

review is highly deferential to 

California; the Clean Air Act does not 

leave room for EPA to second-guess the 

wisdom of California’s policy. Contrary 

to OOIDA’s request, it is not EPA’s role 

in this context to consider and balance 

the emissions benefits against the 

potential negative impacts on operator 

health and welfare and highway safety. 

Instead, EPA is charged with 

determining whether California made its 

protectiveness determination arbitrarily 

or capriciously. Furthermore, for a 

number of reasons, OOIDA has not met 

its burden to show that California 

should be denied authorization because 

it has been arbitrary and capricious in 

making its protectiveness 

determination. First, OOIDA’s 

comments are primarily directed at 

California’s sleeper truck requirements, 

which as discussed above are not even 

subject to the section 209(a) waiver and 

section 209(e) authorization provisions. 

Second, the issues OOIDA raises with 

respect to California’s protectiveness 

determination are not the type of issues 

that EPA traditionally considers as part 

of its evaluation of California’s 

protectiveness determination. When 

evaluating California’s protectiveness 

determination, EPA traditionally 

compares the stringency of the 

California and federal standards at issue 

in a given waiver or authorization 

request. That comparison is undertaken 

within the broader context of the 

previously waived California program, 

which relies upon protectiveness 

determinations that EPA previously 

found were not arbitrary and capricious. 

EPA refrains from conducting a more 

detailed examination of the secondary 

or tertiary effects California standards 

may have on health and the 

environment. Such an undertaking 

would seemingly go beyond the review 

that Congress intended.50 Considering 

OOIDA’s comments within the context 

of EPA’s traditional protectiveness 

evaluation provides no additional 

opportunity to question California’s 

protectiveness determination because 

OOIDA provides no indication that 

California’s standards are less stringent 

than comparable federal standards. 

Third, even if we were to take into 

account OOIDA’s concerns, OOIDA’s 

secondary ‘‘protectiveness’’ concerns to 

do not present sufficient evidence to 

meet its burden of proof. OOIDA does 

not present any factual evidence or 

analysis of the specific health and 

welfare effects they expect to be caused 

by California’s idling restrictions. Such 

evidence and analysis would be 

necessary to show that California’s 

standards are less protective of health 

and welfare. Additionally, OOIDA does 

not dispute that California has 

presumed and allowed several avenues 

for drivers to use climate control and 

accessories during idling, particularly 

through the use of alternative power 

units. California also notes, in response 

to OOIDA, that it has provisions to 

allow extended idling during periods of 

extreme weather. Also, while OOIDA 

suggests that California’s APS 

requirements are too expensive (which 

is more an issue of technological 

feasibility, discussed below, not 

protectiveness), there is no question that 

California allows the use of power to 

deal with climate control in sleeper car 

cabins. In sum, based on full 

consideration and evaluation of the 

totality of information CARB has 

supplied and the assertions OOIDA has 

presented, EPA cannot find that 

California’s protectiveness 

determination was arbitrary and 

capricious. 

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 


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51See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

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

53H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

54See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 

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

44213 (October 7, 1976). 

55 41 FR 44209 (October 7, 1976). 

56H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

57 60 FR 37440 (July 20, 1995), 65 FR 69763 

(November 20, 2000), 68 FR 65702 (November 21, 

2003), 71 FR 75536, and 75 FR 8056 (February 23, 

2010). 

58CARB Supplemental Comments at 4. 

59CARB, ‘‘Staff Report: Initial Statement of 

Reasons,’’ EPA–HQ–OAR–2010–0317–0005; CARB, 

Continued 

conditions.51 As discussed above, for 

over forty years CARB has repeatedly 

demonstrated the need for its motor 

vehicle emissions program to address 

compelling and extraordinary 

conditions in California. In its 

Resolution 05–55, 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.’’ Furthermore, no commenter 

has presented any argument or evidence 

to suggest that California no longer 

needs a separate motor vehicle 

emissions program to address 

compelling and extraordinary 

conditions in California. Therefore, EPA 

has determined that we cannot deny 

California a waiver for its new engine 

requirements 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 APS 

requirements must not apply to new 

motor vehicles or engines. California’s 

APS requirements apply to nonroad 

engines, not new on-highway motor 

vehicles or engines. CARB presents that 

although the APS are used on onhighway heavy-duty diesel vehicles and 

engines, they are auxiliary engines and 

are not used to propel motor vehicles or 

engines. CARB further states that 

because APS are regulated as nonroad 

engines, they fall within the regulatory 

definition of nonroad engine, and are, 

thus, consistent with section 209(a). No 

commenter presented otherwise; 

therefore, EPA cannot deny California’s 

request on the basis that California’s 

APS requirements 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 APS requirements must not 

affect new farming or construction 

vehicles or engines that are below 175 

horsepower, or new locomotives or their 

engines. CARB presents that APS 

engines are not used in locomotives and 

are not primarily used in farm and 

construction equipment vehicles. No 

commenter presented otherwise; 

therefore, EPA cannot deny California’s 

request on the basis that California’s 

APS requirements 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 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.52

a. Technological Feasibility 

Congress has stated that the 

consistency requirement of section 

202(a) relates to technological 

feasibility.53 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.54 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.55 Subsequently, 

Congress has stated that, generally, 

EPA’s construction of the waiver 

provision has been consistent with 

congressional intent.56

With respect to the general APS 

requirements, CARB presents that the 

technological feasibility is readily 

apparent. CARB believes this because 

the general APS requirement is that the 

APS complies with the California or 

federal nonroad emission standards and 

test procedures applicable for its fuel 

type and power category. Therefore, 

EPA has already determined the 

technological feasibility for these 

standards, either in its own federal 

rulemaking or by authorizing the 

underlying California standards in a 

previous authorization.57 No commenter 

challenges the technological feasibility 

of California’s general APS 

requirements. Thus, EPA cannot deny 

California’s request on the basis of 

technological feasibility. 

With respect to the specific APS 

requirements for diesel APSs, CARB 

presents that each option is 

technologically feasible in the specified 

lead-time. Broadly, CARB asserts that 

‘‘numerous technologies currently exist 

that can be used to comply with these 

requirements, including routing the 

exhaust from an APS into the exhaust 

system of the main engine, battery 

electric APSs, thermal energy storage 

systems, and on-shore electrical power 

infrastructures at truck stops.’’ 58 CARB 

also presents information regarding the 

technological feasibility of each of its 

compliance options. For the first option 

(routing a diesel APS’ exhaust upstream 

of the main engine’s diesel particulate 

trap), CARB provided information 

establishing technological feasibility in 

its Initial Statement of Reasoning, which 

went unchallenged in its Final 

Statement of Reasoning.59 CARB also 


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‘‘Final Statement of Reasons,’’ EPA–HQ–OAR– 

2010–0317–0010 (hereinafter ‘‘FSOR’’). 

60CARB Support Document at 40. 

61CARB Support Document at 42. 

62CARB Supplemental Comments at 4. 

63CARB Support Document at 44. 

64OOIDA Comments at 3. 

65CARB Supplemental Comments at 10–11. 

66CARB Supplemental Comments at 11. 

67 Id.; see ISOR Section VII and FSOR at 49–54. 

68See, e.g., 43 FR 32182 (July 25, 1978). 

69CARB Support Document at 38. 

70CARB Support Document at 40. 

71CARB Support Document at 45. 

72CARB Supplemental Comments at 12. (‘‘Allway 

Taxi primarily addressed the issue of whether states 

and localities that are preempted by the Clean Air 

Act from regulating new motor vehicles could 

nevertheless regulate emissions from in-use motor 

vehicles. That issue is clearly distinguishable from 

California’s authority to adopt and to enforce 

standards for the nonroad engines in dieselpowered APSs. Unlike New York, California is 

expressly authorized by Congress to regulate both 

new and in-use nonroad engines (that are not 

conclusively preempted by section 209(e)(1) of the 

CAA) in diesel-powered APSs.’’) 

represents that at least one manufacturer 

applied for certification of a fully 

integrated APS and truck exhaust 

system for the 2008 model year.60 For 

the second option (inclusion of a CARBverified, level 3 PM control), CARB 

presented in its initial May 9, 2008 

support document that it had several 

verification applications, and that the 

technology was feasible.61 Since that 

time, CARB has conditionally verified 

three level 3 PM control strategies that 

can be applied to APSs.62 For the third 

option (an equivalent compliance 

strategy), CARB provides several 

currently available technologies that are 

acceptable alternatives to the first two 

compliance options, including battery 

powered APSs, thermal energy storage 

systems, truck stop electrification, and 

off-board power infrastructure.63 For 

each of the options for compliance with 

the specific requirements for diesel 

APSs, CARB asserts that it gave 

appropriate consideration to cost of 

compliance within the lead-time 

provided. 

In its comments, OOIDA expresses 

concerns related to the cost of APSs on 

truck drivers. OOIDA believes that faced 

with the added expense of an APS, 

truck drivers will decide not to invest in 

APSs and ‘‘instead subject themselves to 

unhealthy and unsafe cab temperatures 

and conditions when hauling cargo in 

[California].’’ 64 Section 202(a) 

consistency calls for a limited review of 

technological feasibility, including a 

cost analysis of the cost of new 

technology, if technology does not 

currently exist; section 202(a) does not 

allow EPA to conduct a more searching 

review of whether the costs are 

outweighed by the overall benefits of 

the California regulations. In this case, 

APS technologies are in existence and 

are being used in actual operation. In 

addition, CARB responds to OOIDA’s 

cost concerns in its supplemental 

comments.65 First, CARB points out that 

its Truck Idling Regulations allow truck 

drivers to override idling shutoff 

systems during extreme weather 

conditions. More specifically, CARB 

points towards its administrative record 

for support of its cost analysis. During 

the California rulemaking, CARB staff 

determined that ‘‘the capital costs of 

[APS] technology could be recouped by 

truck owners or operators in as few as 

two and a half years, due to cost savings 

resulting from reduced fuel and truck 

maintenance costs.’’ 66 CARB also relies 

on its APS cost estimates and response 

to comments regarding compliance 

costs.67 CARB’s rulemaking record with 

regard to cost effectively rebuts 

OOIDA’s assertion that CARB ‘‘simply 

assumes that all drivers have the ability 

to invest thousands of dollars in antiidling equipment * * *.’’ (emphasis 

added). In any case, while OOIDA’s 

comments may be relevant to whether 

an operator would choose to add the 

APS, they are not relevant to whether 

APS technologies are infeasible. As 

discussed above, these technologies are 

being used in practice and are clearly 

feasible. 

EPA did not receive any other 

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.68

CARB presents that none of the APS 

requirements pose any inconsistency as 

between California and federal test 

procedures. First, CARB asserts that its 

general APS requirements do not 

modify the test procedures specified for 

certifying a California or federal 

nonroad engine.69 Second, CARB asserts 

that none of its three options to meet its 

APS requirements specific to diesel APS 

raise any issue with regard to test 

procedure consistency. For option 1, 

CARB again asserts that it does not alter 

test procedures specified for certifying a 

California or federal nonroad engine.70

For options 2 and 3, CARB additionally 

points out no incompatibility issue can 

arise as between federal and California 

test procedures because EPA has no 

comparable federal standards or test 

procedures for CARB to conflict with.71

EPA received no comments suggesting 

that CARB’s APS requirements pose a 

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. 

4. Other Issues 

In its comments, ATA asserts that 

because California’s APS requirements 

(those specific to diesel APSs on 2007 

and subsequent model year heavy-duty 

diesel vehicles) apply to new diesel 

engines, they circumvent the 

consistency criteria of the Clean Air Act. 

ATA does not reference any of the 

sections of the Act which EPA has 

historically evaluated (i.e., sections 

209(a), 209(e)(1), and 209(b)(1)(C)); 

instead, ATA generally challenges 

California’s ability to regulate APSs as 

inconsistent with federal standards. 

However, California’s ability to regulate 

APSs as either new or in-use engines, 

and depart from federal standards—is 

clearly grounded in section 209 of the 

Clean Air Act. California may regulate 

new nonroad engines pursuant to 

section 209(e)(2)’s authorization 

provision; and section 209(e) impliedly 

allows California to regulate in-use 

nonroad engines. Additionally, as CARB 

points out, ATA’s reliance on Allway 

Taxi, Inc. v. City of New York, is 

misplaced.72 Allway Taxi concerned 

whether New York City could require 

emission controls for taxis in use. Those 

emission controls had not received a 

waiver of preemption, as New York City 

cannot receive one directly and at the 

time could not promulgate standards 

identical to California’s. The court 

ultimately found that New York City 

could promulgate those emission 

controls, although noting that controls 

that took effect ‘‘the moment after a new 

car is bought and registered * * * 

would be an obvious circumvention of 

the Clean Air Act.’’ However, California 

has the authority to request a waiver of 

preemption (or authorization, for 

nonroad engines) for its standards under 

the Clean Air Act, and EPA has the 

authority to grant such request under 

section 209. Allway Taxi is not relevant 


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Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices 9249 

73EPA notes that even if the language in section 

202(a)(1)(C) were relevant to its consistency 

analysis, that section by its own terms applies only 

to standards applicable to emissions from new 

heavy-duty on-highway motor vehicle engines, not 

the nonroad engines being regulated by California. 

74H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 75CARB Support Document at 45. 

76See, e.g., 74 FR 32744, 32783 (July 8, 2009). 

77See Motor and Equipment Manufacturers Ass’n 

v. Nichols, 142 F.3d 449, 462–63, 466–67 (DC 

Cir.1998), Motor and Equipment Manufacturers 

Ass’n v. EPA, 627 F.2d 1095, 1111, 1114–20 (DC 

Cir. 1979). 

78OOIDA 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. 

to this separate authority. It is this 

separate authority that is the subject of 

this proceeding. Furthermore, EPA’s 

decision with respect to California’s 

Truck Idling Requirements is 

circumscribed by the waiver criteria set 

forth in sections 209(b) and 209(e) of the 

Act. ATA’s argument appears more 

directed at its policy goal of uniform 

idling regulations, but does not comport 

with the section 209 criteria, nor does 

it call into question any of EPA’s section 

209 analysis. Congress has provided a 

mechanism for California to have 

standards that are more stringent than 

those in other states, and ATA’s 

argument seems to neglect this clear 

authority. 

ATA also contends that EPA cannot 

grant a new authorization for 

California’s APS requirements (again, 

those specific to diesel APSs on 2007 

and subsequent model year heavy-duty 

diesel vehicles) because ‘‘CARB has not 

complied with the lead time and 

stability requirements of section 

202(a)(3)(C)’’ of the Clean Air Act. This 

comment also does not comport with 

the section 209 criteria. California must 

take lead-time into account, and EPA 

must consider lead-time when 

evaluating California’s regulations 

pursuant to section 209(e)’s consistency 

requirements. However, the lead-time 

inquiry EPA undertakes relates to 

technological feasibility. Specifically, 

consistency with section 202(a) 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.73 Congress has stated that, 

generally, this construction accords 

with congressional intent.74 With 

respect to California’s specific APS 

requirements for diesel APSs used on 

2007 and later model year heavy-duty 

diesel vehicles, California demonstrated 

that all three compliance options are 

currently technologically feasible. No 

party—including ATA—presented 

otherwise. EPA then has no further 

inquiry into lead-time, because no 

additional requirement is imposed by 

the section 209 criteria. 

5. Authorization Determination for 

California’s APS Requirements 

After a review of the information 

submitted by CARB and other parties to 

this proceeding, EPA finds that those 

opposing California’s request have not 

met the burden of demonstrating that a 

waiver for California’s APS 

requirements should be denied based on 

any of the three statutory criteria of 

section 209(e)(2). For this reason, EPA 

finds that California’s APS requirements 

should be authorized. 

D. Fuel-Fired Heater Requirements 

California’s Truck Idling 

Requirements also impose emission 

requirements on fuel-fired heaters. Fuelfired heaters provide heat to truck cabs 

or sleeper berths and/or preheat engine 

blocks during cold weather. Fuel-fired 

heaters on 2007 and later model year 

trucks operating in California may now 

only operate fuel-fired heaters that 

comply with California’s second 

generation of low emission vehicle (LEV 

II) regulations. 

With respect to CARB’s fuel-fired 

heater requirements, in the July 27, 2010 

Federal Register notice, EPA sought 

comment on the following question: Are 

CARB’s requirements pertaining to fuelfired heaters, batteries, fuel cells, power 

inverter/chargers for on-shore power, 

and truck electrification preempted 

under section 209 of the Clean Air Act, 

and if so, do they meet the requirements 

for waiver under section 209(b) or 

authorization under section 209(e)? 

CARB presents that its fuel-fired 

heater requirements are not preempted 

and, accordingly, do not require an 

authorization.75 CARB asserts that 

because fuel-fired heaters are neither 

nonroad engines nor vehicles, they are 

not subject to section 209(e) 

preemption. EPA received no comments 

suggesting that CARB’s fuel-fired heater 

requirements are subject to section 

209(e) preemption. EPA confirms that 

fuel-fired heaters are not nonroad 

engines or vehicles, and are therefore 

not preempted under section 209(e) of 

the Clean Air Act. 

E. California’s Truck Idling Labeling 

Requirements 

Engine manufacturers, original 

equipment manufacturers (OEMs), and 

internal combustion APSs 

manufacturers, as applicable, are 

required to produce and affix permanent 

labels to the hood of the truck. These 

labels are intended to assist CARB 

enforcement staff in clearly and easily 

identifying diesel trucks that comply 

with the California Truck Idling 

Requirements. As stated above, EPA is 

today issuing a waiver of preemption for 

the new engine requirements and an 

authorization for the APS requirements. 

California’s engine and optional NOX

idling labeling requirements, which 

accompany the new engine 

requirements, are therefore included in 

the waiver of preemption for the new 

engine requirements. Similarly, 

California’s auxiliary power system 

labeling requirements, which 

accompany the APS requirements, are 

therefore included in the authorization 

for the APS requirements. 

F. Other Issues 

OOIDA’s comments present two other 

issues that generally challenge 

California’s Truck Idling Requirements. 

First, OOIDA asserts that CARB should 

be prohibited from enforcing its Truck 

Idling Requirements until EPA approves 

them. Second, OOIDA asserts that 

federal laws other than the Clean Air 

Act may preempt California’s Truck 

Idling Requirements. As EPA has stated 

on numerous occasions, 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.76 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.77

Neither of the issues OOIDA raises is 

among—or fits within the confines of— 

either explicitly or implicitly, the 

criteria listed under sections 209(b) and 

209(e).78 Therefore, in considering 

California’s Truck Idling Requirements, 

EPA has not considered these issues. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(b) waivers of preemption and 

section 209(e) authorizations to the 

Assistant Administrator for Air and 

Radiation. After evaluating CARB’s 

Truck Idling Requirements, CARB’s 

submissions, and the public comments 

from ATA and OOIDA, EPA is taking 

the following actions. First, EPA is 

granting a waiver of preemption to 

California for its new engine 

requirements. Second, EPA is granting 


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9250 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices 

an authorization to California for its 

auxiliary power system requirements. 

My decision will affect not only 

persons in California, but also 

manufacturers outside the State who 

must comply with California’s 

requirements in order to produce 

vehicles for sale in California. 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 April 16, 2012. 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: February 8, 2012. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2012–3690 Filed 2–15–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL RESERVE SYSTEM 

Change in Bank Control Notices; 

Acquisitions of Shares of a Bank or 

Bank Holding Company 

The notificants listed below have 

applied under the Change in Bank 

Control Act (12 U.S.C. 1817(j)) and 

§ 225.41 of the Board’s Regulation Y (12 

CFR 225.41) to acquire shares of a bank 

or bank holding company. The factors 

that are considered in acting on the 

notices are set forth in paragraph 7 of 

the Act (12 U.S.C. 1817(j)(7)). 

The notices are available for 

immediate inspection at the Federal 

Reserve Bank indicated. The notices 

also will be available for inspection at 

the offices of the Board of Governors. 

Interested persons may express their 

views in writing to the Reserve Bank 

indicated for that notice or to the offices 

of the Board of Governors. Comments 

must be received not later than March 

1, 2012. 

A. Federal Reserve Bank of Cleveland 

(Nadine Wallman, Vice President) 1455 

East Sixth Street, Cleveland, Ohio 

44101–2566: 

1. Richard H. Thut, Orrville, to 

acquire up to 32.97% of the voting 

shares of FC Banc Corp, Bucyrus, Ohio, 

and thereby acquire Farmers Citizens 

Bank, Bucyrus, Ohio. 

Board of Governors of the Federal Reserve 

System, February 13, 2012. 

Robert deV. Frierson, 

Deputy Secretary of the Board. 

[FR Doc. 2012–3660 Filed 2–15–12; 8:45 am] 

BILLING CODE 6210–01–P 

FEDERAL RESERVE SYSTEM 

Formations of, Acquisitions by, and 

Mergers of Bank Holding Companies 

The companies listed in this notice 

have applied to the Board for approval, 

pursuant to the Bank Holding Company 

Act of 1956 (12 U.S.C. 1841 et seq.) 

(BHC Act), Regulation Y (12 CFR part 

225), and all other applicable statutes 

and regulations to become a bank 

holding company and/or to acquire the 

assets or the ownership of, control of, or 

the power to vote shares of a bank or 

bank holding company and all of the 

banks and nonbanking companies 

owned by the bank holding company, 

including the companies listed below. 

The applications listed below, as well 

as other related filings required by the 

Board, are available for immediate 

inspection at the Federal Reserve Bank 

indicated. The application also will be 

available for inspection at the offices of 

the Board of Governors. Interested 

persons may express their views in 

writing on the standards enumerated in 

the BHC Act (12 U.S.C. 1842(c)). If the 

proposal also involves the acquisition of 

a nonbanking company, the review also 

includes whether the acquisition of the 

nonbanking company complies with the 

standards in section 4 of the BHC Act 

(12 U.S.C. 1843). Unless otherwise 

noted, nonbanking activities will be 

conducted throughout the United States. 

Unless otherwise noted, comments 

regarding each of these applications 

must be received at the Reserve Bank 

indicated or the offices of the Board of 

Governors not later than March 12, 

2012. 

A. Federal Reserve Bank of Kansas 

City (Dennis Denney, Assistant Vice 

President) 1 Memorial Drive, Kansas 

City, Missouri 64198–0001: 

1. Summit Bancshares, Inc., to 

become a bank holding company by 

acquiring 100 percent of the voting 

shares of Summit Bank, both in Tulsa, 

Oklahoma. 

Board of Governors of the Federal Reserve 

System, February 10, 2012. 

Robert deV. Frierson, 

Deputy Secretary of the Board. 

[FR Doc. 2012–3583 Filed 2–15–12; 8:45 am] 

BILLING CODE 6210–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Designation of a Class of Employees 

for Addition to the Special Exposure 

Cohort 

AGENCY: National Institute for 

Occupational Safety and Health 

(NIOSH), Centers for Disease Control 

and Prevention, Department of Health 

and Human Services (HHS). 

ACTION: Notice. 

SUMMARY: HHS gives notice of a 

decision to designate a class of 

employees from the Savannah River Site 

in Aiken, South Carolina, as an addition 

to the Special Exposure Cohort (SEC) 

under the Energy Employees 

Occupational Illness Compensation 

Program Act of 2000. On February 2, 

2012, the Secretary of HHS designated 

the following class of employees as an 

addition to the SEC: 

All employees of the Department of 

Energy, its predecessor agencies, and their 

contractors and subcontractors who worked 

at the Savannah River Site from January 1, 

1953, through September 30, 1972, for a 

number of work days aggregating at least 250 

work days, occurring either solely under this 

employment or in combination with work 

days within the parameters established for 

one or more other classes of employees 

included in the Special Exposure Cohort. 

This designation will become effective 

on March 3, 2012, unless Congress 

provides otherwise prior to the effective 

date. After this effective date, HHS will 

publish a notice in the Federal Register 

reporting the addition of this class to the 

SEC or the result of any provision by 

Congress regarding the decision by HHS 

to add the class to the SEC. 

FOR FURTHER INFORMATION CONTACT: 

Stuart L. Hinnefeld, Director, Division 

of Compensation Analysis and Support, 

NIOSH, 4676 Columbia Parkway, MS 

C–46, Cincinnati, OH 45226, Telephone 

1–877–222–7570. Information requests 


srobinson on DSK4SPTVN1PROD with NOTICES