9916 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 

1Under the Commission’s Rules of Practice and 

Procedure, any document received after regular 

business hours is considered filed at 8:30 a.m. on 

the next regular business day. 18 CFR 

385.2001(a)(2) (2011). 

2 18 CFR 4.37 (2011). 1 30 FERC ¶ 61,143 (1985). 

identical filing times, will be considered 

to have the first-filed application. 

The drawing is open to the public and 

will be held in room 2C, the 

Commission Meeting Room, located at 

888 First St. NE., Washington, DC 

20426. A subsequent notice will be 

issued by the Secretary announcing the 

results of the drawing. 

Dated: February 13, 2012. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2012–3883 Filed 2–17–12; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Project Nos. 14130–000; 14137–000] 

Riverbank Hydro No. 2, LLC; Lock+ 

Hydro Friends Fund XXXVI; Notice 

Announcing Preliminary Permit 

Drawing 

The Commission has received two 

preliminary permit applications deemed 

filed on April 1, 2011, at 8:30 a.m.,1 for 

proposed projects to be located on the 

Arkansas River, in Lincoln County and 

Jefferson County, Arkansas. The 

applications were filed by Riverbank 

Hydro No. 2, LLC for Project No. 14130– 

000 and Lock+ Hydro Friends Fund 

XXXVI for Project No. 14137–000. 

On February 22, 2012, at 9 a.m. 

(Eastern Time), the Secretary of the 

Commission, or her designee, will 

conduct a random drawing to determine 

the filing priority of the applicants 

identified in this notice. The 

Commission will select among 

competing permit applications as 

provided in section 4.37 of its 

regulations.2 The priority established by 

this drawing will be used to determine 

which applicant, among those with 

identical filing times, will be considered 

to have the first-filed application. 

The drawing is open to the public and 

will be held in room 2C, the 

Commission Meeting Room, located at 

888 First St. NE., Washington, DC 

20426. A subsequent notice will be 

issued by the Secretary announcing the 

results of the drawing. 

Dated: February 13, 2012. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2012–3882 Filed 2–17–12; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket No. CP12–57–000] 

Williston Basin Interstate Pipeline 

Company; Notice of Request Under 

Blanket Authorization 

Take notice that on February 6, 2012, 

Williston Basin Interstate Pipeline 

Company (Williston Basin), 1250 West 

Century Avenue, Bismarck, North 

Dakota 58503, filed in Docket No. CP12– 

57–000, an application pursuant to 

section 157.21 of the Commission’s 

Regulations under the Natural Gas Act 

(NGA) as amended, to replace natural 

gas compression facilities at its Elk 

Basin compressor station in Park 

County, Wyoming, under Williston 

Basin’s blanket certificate issued in 

Docket No. CP82–487–000 et al., 1 all as 

more fully set forth in the application 

which is on file with the Commission 

and open to the public for inspection. 

Williston Basin proposes to replace 

two natural gas-fired 225-horsepower 

(HP) compressor units installed in 1941, 

two natural gas-fired 330–HP 

compressor units installed in 1950, and 

one natural gas-fired 1,100–HP 

compressor unit installed in 1970 with 

one electric-driven 2,500–HP 

compressor unit. Williston Basin states 

that the new 2,500–HP electric 

compressor unit will also increase the 

certificated horsepower at the Elk Basin 

compressor station from 4,610 HP to 

4,900 Hp. Williston Basin estimates that 

the proposed electric replacement 

compressor unit would cost $8,706,486 

to install. 

Any questions concerning this 

application may be directed to Keith A. 

Tiggelaar, Director of Regulatory Affairs, 

Williston Basin Interstate Pipeline 

Company, 1250 West Century Avenue, 

Bismarck, North Dakota 58503, 

telephone (701) 530–1560 or Email: 

keith.tiggelaar@wbip.com. 

This filing is available for review at 

the Commission or may be viewed on 

the Commission’s web site at http:// 

www.ferc.gov, using the ‘‘eLibrary’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

filed to access the document. For 

assistance, please contact FERC Online 

Support at FERC 

OnlineSupport@ferc.gov or call toll-free 

at (866) 206–3676, or, for TTY, contact 

(202) 502–8659. Comments, protests and 

interventions may be filed electronically 

via the Internet in lieu of paper. See, 18 

CFR 385.2001(a)(1)(iii) and the 

instructions on the Commission’s Web 

site under the ‘‘e-Filing’’ link. The 

Commission strongly encourages 

intervenors to file electronically. 

Any person or the Commission’s staff 

may, within 60 days after issuance of 

the instant notice by the Commission, 

file pursuant to Rule 214 of the 

Commission’s Procedural Rules (18 CFR 

385.214) a motion to intervene or notice 

of intervention and pursuant to Section 

157.205 of the regulations under the 

NGA (18 CFR 157.205), a protest to the 

request. If no protest is filed within the 

time allowed therefore, the proposed 

activity shall be deemed to be 

authorized effective the day after the 

time allowed for filing a protest. If a 

protest is filed and not withdrawn 

within 30 days after the allowed time 

for filing a protest, the instant request 

shall be treated as an application for 

authorization pursuant to Section 7 of 

the NGA. 

Dated: February 10, 2012. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2012–3817 Filed 2–17–12; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9633–7] 

California State Motor Vehicle and 

Nonroad Engine Pollution Control 

Standards; Mobile Cargo Handling 

Equipment Regulation at Ports and 

Intermodal Rail Yards; Notice of 

Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision granting an 

authorization and waiver of preemption 

for California’s mobile cargo handling 

equipment regulation at ports and 

intermodal rail yards. 

SUMMARY: Pursuant to section 209(e) of 

the Clean Air Act (Act), 42 U.S.C. 

7543(e), EPA is granting California its 

request for authorization to enforce it 

emission standards and other 

requirements for its mobile cargo 

handling equipment regulation. To the 

extent that the mobile cargo handling 

equipment regulation pertains to the 

control of emissions from new motor 

vehicles or new motor vehicle engines 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 9917 

1See CARB’s January 29, 2007 request at EPA– 

HQ–OAR–2010–0862–0001 (CARB’s Request). 

EPA’s review of CARB’s mobile source standards 

relating to the control of emissions for new motor 

vehicles and new motor vehicle engines conducted 

under section 209(b) of the Act are treated as 

‘‘waiver’’ requests from CARB. EPA’s review of 

CARB’s regulations relating to standards and other 

requirements relating to the control of emissions 

from nonroad vehicles and nonroad engines 

conducted under section 209(e) of the Act are 

treated as ‘‘authorization’’ requests from CARB. 

2The CHE regulation is designed to use best 

available control technology (BACT) to reduce 

diesel PM and NOX emissions from mobile cargo 

handling equipment at ports and intermodal rail 

yards. Mobile cargo handling equipment is any 

engine-propelled vehicle used to handle cargo at 

ports and intermodal rail facilities and vehicles 

used to perform maintenance and repair activities 

and includes, but is not limited to, yard trucks, top 

handlers, rubber-tired gantry (RTG) cranes, forklifts, 

dozers, and loaders. 

3 76 FR 5586 (February 1, 2011). 

4See EPA–HQ–OAR–2010–0862–0024.1, EPA– 

HQ–OAR–2010–0862–0025.1, and EPA–HQ–OAR– 

2010–0862–0026.1, respectively. 

5See EPA–HQ–OAR–2010–0862–0028, CARB’s 

comments submitted on March 17, 2011; and EPA– 

HQ–OAR–0862–0029, CARB’s comments submitted 

on May 2, 2011. 

6CARB’s initial waiver and authorization request 

submitted on January 29, 2007 (which full set forth 

the requisite information to support the granting of 

a full waiver and authorization), in combination 

with supplemental comments submitted by CARB 

on March 17, 2011, make clear CARB’s intent to 

receive a full waiver and authorization to the extent 

that EPA deems a within the scope determination 

is inappropriate. As explained below, EPA finds 

that due to the new application of CARB’s 

standards a full waiver and authorization is 

necessary. 

7CARB normally uses the term ‘‘off-road’’ while 

EPA uses the term ‘‘nonroad.’’ Similarly, CARB 

uses the term ‘‘on-road’’ while EPA uses the term 

‘‘on-highway’’ or ‘‘motor vehicles.’’ 

EPA is, pursuant to section 209(b) of the 

Act, 42 U.S.C. 7543(b), granting 

California its request for a waiver of 

preemption. 

DATES: Under 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 23, 2012. Under 

307(b)(2) of the Act, judicial review of 

this final action may not be obtained in 

subsequent enforcement proceedings. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2010–0862. 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 

http://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 20460. The public 

reading room is open to the public on 

all federal government work days 

between 8 a.m. and 4:30 p.m.; generally, 

it is open Monday through Friday, 

excluding holidays. The telephone 

number for the Reading Room (202) 

566–1744. The Air and Radiation 

Docket and Information Center’s Web 

site is http://www.epa.gov/oar/ 

docket.html. The electronic mail (email) 

address for the Air and Radiation 

Docket is: a-and-r-Docket@epa.gov, the 

telephone number is (202) 566–1742, 

and the fax number is (202) 566–9744. 

An electronic version of the public 

docket is available through the federal 

government’s electronic public docket 

and comment system. You may access 

EPA dockets at http:// 

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2010–0862 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record of CARB’s 

mobile cargo handling equipment 

waiver and authorization request. 

Although a part of the official docket, 

the public docket does not include 

Confidential Business Information 

(‘‘CBI’’) or other information whose 

disclosure is restricted by statute. 

EPA’s Office of Transportation and 

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

page that contains general information 

on its review of California waiver 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in today’s 

notice; the page can be accessed at 

http://www.epa.gov/otaq/cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

David Dickinson, Attorney-Advisor, 

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) 343–9256. Fax: 

(202) 343–2800. Email: 

dickinson.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Chronology 

In a letter dated January 29, 2007, the 

California Air Resources Board (CARB) 

submitted to EPA its waiver and 

authorization request pursuant to 

section 209 of the Clean Air Act (CAA 

or Act), regarding its regulations for 

Mobile Cargo Handling Equipment at 

Ports and Intermodal Rail yards (Mobile 

Cargo Handling Equipment or CHE).1

CARB’s CHE regulations were adopted 

at CARB’s December 8, 2005 public 

hearing (by Resolution 05–62) and were 

subsequently modified after making the 

regulation available for supplemental 

public comment by CARB’s Executive 

Officer through Executive Order R–06– 

007 on June 2, 2006. The CHE 

regulations are codified at title 12, 

California Code of Regulations section 

2479.2

EPA published a Federal Register 

notice for public hearing and comment 

on CARB’s request on February 1, 

2011.3 No hearing request was received 

and thus no hearing took place. EPA 

received a total of three written 

comments from BNSF Railway 

Company and Union Pacific Railway 

Company, SSAT Terminal Pier A 

(SSAT), and Ports America Equipment 

Services (Ports America).4 EPA also 

received supplemental comment from 

CARB.5

CARB has requested that EPA grant a 

waiver of preemption or grant a new 

authorization for certain portions of its 

CHE regulations. For other portions of 

its CHE regulation, CARB has requested 

that EPA find the requirements fall 

within the scope of a previously granted 

waiver or authorization, or in the 

alternative grant a new waiver of 

preemption or authorization. Finally, for 

one portion of its CHE regulation, CARB 

has requested that EPA find the 

requirements are not preempted by 

section 209 of the Clear Air Act, that if 

EPA finds they are preempted, the 

requirements fall within the scope of a 

previously granted waiver or, in the 

alternative, EPA grant a new waiver of 

preemption.6

B. CARB Mobile Cargo Handling 

Equipment Regulations 

CARB’s CHE regulations set 

performance standards for engines 

equipped in newly purchased, leased, or 

rented (collectively known as ‘‘newly 

acquired’’), as well as in-use, mobile 

cargo handling equipment used at ports 

or intermodal rail yards in California. 

The standards vary depending on the 

type of vehicle, whether the engine is 

used in off-road equipment or a vehicle 

registered as an on-road motor vehicle, 

and whether they are newly acquired or 

already in-use.7

Yard trucks and other mobile cargo 

handling equipment registered to 

operate on California highways acquired 

after January 1, 2007 must be equipped 

with engines that are certified to the onroad engine emission standards for the 

model year in which they are acquired. 

Any yard truck not registered for onroad operation (off-road yard trucks) 

acquired after January 1, 2007 must be 

equipped either with an engine certified 

to the on-road emission standards for 

the model year in which it is acquired 

or the final Tier-4 off-road emission 

mstockstill on DSK4VPTVN1PROD with NOTICES

9918 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 

8 70 FR 50322 (August 26, 2006) 

9 Id. 

10 75 FR 8056 (February 23, 2010). EPA 

previously granted an authorization for California’s 

new heavy-duty off-road diesel-cycle engines 

greater than 130 kW at 60 FR 48981 (September 21, 

1995) and subsequently confirmed that 

amendments to those standards were within the 

scope of the prior authorization at 69 FR 38958 

(June 29, 2004). 

11Because California was the only state to have 

adopted standards prior to 1966, it is the only state 

standard applicable to the engine’s rated 

power. 

Engines in newly acquired CHE other 

than yard trucks that are not registered 

for on-road operation (non-yard trucks) 

must—if technically feasible and 

available for purchase, lease, or rental— 

meet one of two certification standards: 

(1) The on-road engine certification 

standards or (2) the off-road Tier 4 

certification standards for the model 

year and rated power of the engine. 

Alternatively, if neither of the options is 

feasible or available, a newly acquired 

non-yard truck must be equipped with 

an engine that is certified to the most 

stringent off-road engine emission 

standards for the type of vehicle and 

application for the model year in which 

it is acquired. In addition, under this 

alternative, within one year of acquiring 

the vehicle, the owner or operator must 

install the highest level verified diesel 

emission control strategy (VDECS) that 

is approved by CARB and available for 

that engine. If no VDECS is verified by 

CARB and available by the end of the 

one-year period, the owner or operator 

must install the highest level VDECS 

within six months after one becomes 

available. 

For in-use yard trucks, whether onroad or off-road, the regulations require 

they meet one of three compliance 

options: such vehicles must (1) be 

certified to the 2007 or later model year 

on-road engine standards; (2) be 

certified to Tier 4 off-road standards; or 

(3) apply VDECS that reduce emissions 

to levels that comply with diesel PM 

and NOx emissions of a certified final 

Tier 4 off-road diesel engine for the 

same power rating. 

The date by which each in-use yard 

truck in an owner or operator’s fleet 

must be brought into compliance 

depends on the number of trucks in the 

fleet, the model year of the trucks, 

whether the trucks are equipped with 

on-road or off-road engines, and 

whether the engines were equipped 

with VDECS by December 31, 2006. 

For in-use non-yard trucks, the 

regulations identify and establish 

separate requirements for three 

categories or vehicles: Basic cargo 

handling equipment, bulk cargo 

handling equipment and rubber-tired 

gantry (RTG) cranes. Basic cargo 

handling equipment consists of top 

handlers, side handlers, reach stackers, 

forklifts, straddle carriers and any other 

type of equipment (other than RTG 

cranes) that handles cargo containers. 

Bulk cargo handling equipment consists 

of dozers, loaders, excavators, mobile 

cranes, sweepers, railcar movers, aerial 

lifts and any other type of equipment 

(except forklifts) that handles noncontainerized or bulk cargo. 

For all three categories of in-use nonyard trucks, vehicles can be brought into 

compliance using any of three options. 

Option 1 is the same for all three 

categories: Use of an engine or power 

system—including diesel, alternative 

fueled, or heavy-duty pilot ignition 

engine—certified to the 2007 or later 

model year on-road or Tier 4 off-road 

engine standards for the rated power 

and model year of the engine. 

Option 2 two is identical for basic 

cargo handling equipment and bulk 

cargo handling equipment, but varies 

slightly for RTG cranes. Basic cargo 

handling equipment and bulk cargo 

handling equipment must comply by 

installing a pre-2007 model year 

certified on-road engine or a certified 

Tier 2 or Tier 3 off-road engine and 

applying the highest level VDECS that is 

certified for the specific engine family 

and model year. However, if no Level 2 

or higher VDECS is available, the engine 

must be upgraded to either a certified 

Tier 4 off-road engine or a Level 3 

VDECS must be installed by December 

31, 2015. 

Under option 2, RTG cranes use a 

certified Tier 2 or Tier 3 off-road engine 

and the highest VDECS available but, in 

contrast to basic and bulk cargo 

handling equipment, need not upgrade, 

regardless of whether or not the highest 

VDECS available was Level 2 or below. 

Option 3 is similar for both basic and 

bulk cargo handling equipment. Basic 

cargo handling equipment may comply 

using a pre-Tier 1 or a Tier 1 off-road 

engine equipped with the highest level 

VDECS available. However, if the 

highest level VDECS available is not 

Level 3 or higher, the engine must be 

upgraded to either a certified Tier 4 offroad engine or a Level 3 VDECS by 

December 31, 2015. For bulk cargo 

handling equipment, the requirements 

of this option are the same except an 

upgrade is required if no Level 2 or 

higher VDECS is initially available. 

Lastly, under the option 3, RTG cranes 

may comply using a pre Tier 1 or 

certified Tier 1 off-road engine equipped 

with the highest level VDECS available. 

However, if no VDECS is available or 

the highest level VDECS is a Level 1 or 

2, then the RTG crane engine must be 

replaced with a Tier 4 certified off-road 

engine or a Level 3 VDECS must be 

installed by the later of December 31, 

2015 or December 31st of the model 

year of the initially compliant engine 

plus 12 years. 

The date by which each in-use nonyard truck in an owner or operator’s 

fleet must be brought into compliance 

depends on the size and model-year 

composition of the in-use non-yard 

trucks in the fleet 

C. Previously Granted Waivers and 

Authorizations 

By letter dated July 26, 2004, CARB 

requested that EPA grant California a 

waiver of federal preemption for its 

2007 California Heavy Duty Diesel 

Engines Standards, which primarily 

align California’s standards and test 

procedures with the federal standards 

and test procedures for 2007 and 

subsequent model year heavy-duty 

motor vehicles and motor vehicle 

engines.8 After offering an opportunity 

for hearing and public comment, on 

August 26, 2005 EPA granted 

California’s request for waiver.9

On July 18, 2008, CARB notified EPA 

of additional regulations and 

amendments to its new nonroad 

compression ignition engine 

regulations. EPA determined that a 

portion of those regulations fell within 

the scope of the previously granted 

authorization and granted a new 

authorization for the remainder of the 

regulations.10

D. Clean Air Act Waivers of Preemption 

and Authorizations 

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. Section 209(b)(1) requires 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, 1966,11 if the State 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 9919 

that is qualified to seek and receive a waiver. See 

S.Rep. No. 90–403 at 632 (1967). 

12CAA section 209(b)(1)(A). 

13CAA section 209(b)(1)(B). 

14CAA section 209(b)(1)(C). 

15See, e.g., 74 FR at 32767 (July 8, 2009); see also 

Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 

1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 16See 59 FR 36969 (July 20, 1994). 

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

18 Id. 

19 Id. 

20 Id. 

determines that its standards will be, in 

the aggregate, at least as protective of 

public health and welfare as applicable 

Federal standards (this is known as 

California’s ‘‘protectiveness 

determination’’). However, no waiver is 

to be granted if EPA finds that: (A) 

California’s ‘‘protectiveness 

determination’’ is arbitrary and 

capricious 12; (B) California does not 

need such State standards to meet 

compelling and extraordinary 

conditions 13; or (C) California’s 

standards and accompanying 

enforcement procedures are not 

consistent with section 202(a) of the 

Act.14 Regarding consistency with 

section 202(a), EPA reviews California’s 

standards for technological feasibility 

and evaluates testing and enforcement 

procedures to determine whether they 

would be inconsistent with federal test 

procedures (e.g., if manufacturers would 

be unable to meet both California and 

federal test requirements using the same 

test vehicle).15

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 

if three conditions are met. These 

conditions for confirming a within-thescope request are discussed below. 

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 

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. The applicable 

regulations, 40 CFR § 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. 

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).16

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 under 

section 209(e)(1). 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 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. 

EPA can confirm that amended 

regulations are within the scope of a 

previously granted waiver of 

preemption or authorization if three 

conditions are met. First, the amended 

regulations must not undermine 

California’s determination that its 

standards, in the aggregate, are at least 

as protective of public health and 

welfare as applicable federal standards. 

Second, the amended regulations must 

not undermine our previous 

determination with respect to 

consistency with section 202(a) of the 

Act. Third, the amended regulations 

must not raise any new issues affecting 

EPA’s prior waiver determinations. 

E. Burden of Proof 

In 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.17

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.’’ 18

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.19 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.20

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 

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9920 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 

21See, e.g., 40 FR 21102–103 (May 28, 1975). 

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

23 Id. at 1126. 

24 Id. at 1126. 

25 70 FR 50322 (August 26, 2005). 

26 75 FR 8056 (February 23, 2010). 

27Engine Manufacturers Association v. South 

Coast Air Quality Management District, 541 U.S. 

246,253 (2004). 

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.’’ 21

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.22

The Administrator’s burden, on the 

other hand, is to make a reasonable 

evaluation of the information in the 

record in coming to the waiver decision. 

As the court in MEMA I stated: ‘‘Here, 

too, if the Administrator ignores 

evidence demonstrating that the waiver 

should not be granted, or if he seeks to 

overcome that evidence with 

unsupported assumptions of his own, 

he runs the risk of having his waiver 

decision set aside as ‘arbitrary and 

capricious.’ ’’ 23 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 24

F. EPA’s Consideration of CARB’s 

Request 

EPA sought comment on a range of 

issues, including whether certain or all 

of CARBs CHE regulation should be 

evaluated under the within the scope 

criteria or under the criteria for a full 

authorization and waiver of preemption. 

EPA did not receive any comments 

contending that any portions of the CHE 

regulations should be subjected to full 

waiver or authorization analysis. 

CARB maintains that its requirements 

for newly acquired on-highway yard and 

non-yard trucks are covered by a waiver 

granted by EPA for 2007 and later model 

year (MY) on-highway heavy-duty 

diesel engines, or conversely its 

requirements are within the scope of 

that waiver decision.25

CARB also maintains that its 

requirements for newly acquired offroad yard trucks should be analyzed 

under the within the scope criteria since 

the compliance options involve either 

the use of a 2007 and later MY onhighway heavy-duty diesel engine (and 

thus the same within the scope rationale 

noted above) or the use of an engine 

meeting the final Tier 4 off-road engine 

standards which EPA previously 

authorized.26 Similarly, for the 

requirements associated with newly 

acquired off-road non-yard trucks CARB 

also states that options 1 and 2 should 

be considered within the scope of the 

prior waiver and authorization noted 

above, and that option 3 (the VDECS 

option) should be granted a full 

authorization. 

In addition to the requirements 

associated with newly acquired mobile 

cargo handling equipment, the CHE 

regulations also set forth in-use 

performance standards applicable to 

non-new yard and non-yard trucks. To 

the extent the in-use standards apply to 

yard and non-yard trucks registered onroad, CARB maintains such 

requirements are not preempted by 

section 209(a) of the Act and therefore 

do not require a waiver from EPA. To 

the extent the in-use standards apply to 

non-new off-road yard and non-yard 

trucks (those not registered for on-road 

operation) CARB requests a full 

authorization from EPA. 

Despite CARB’s contentions, EPA has 

determined that California’s CHE 

regulations to the extent they apply to 

nonroad engines require a full 

authorization and to the extent they 

apply to new motor vehicles or new 

motor vehicle engines require a full 

waiver of preemption. While CARB 

acknowledges their CHE requirements 

are standards relating to the control of 

emissions they nevertheless suggest that 

such standards have either been 

previously waived or authorized by 

EPA. However, the analysis does not 

end there. 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 the 

conclusion that ‘‘standards’’ not merely 

be limited to a design or performance 

standard relating to the production of 

certain vehicles that meet particular 

emission characteristics but also that the 

means of enforcing the emission limits 

is pertinent. California’s new engine 

requirements should be considered as 

standards relating to the control of 

emissions. As the Court noted, 

‘‘Manufacturers (or purchasers) can be 

made responsible for ensuring that 

vehicles comply with emission 

standards, but the standards themselves 

are separate from those enforcement 

techniques. While standards target 

vehicles or engines, standardenforcement efforts that are proscribed 

by § 209 can be directed to 

manufacturers or purchasers.’’ 27 In this 

instance, while the underlying 

standards as applied toward the 

production of new heavy-duty diesel 

highway engines or new nonroad diesel 

engines have either previously been 

waived or authorized by EPA, CARB is 

newly applying the standards to 

operators at ports and rail yards and 

requiring them to acquire CHE with 

specific emission characteristics to the 

exclusion of other CHE. 

Therefore, with respect to newly 

acquired yard and non-yard trucks EPA 

will evaluate such requirements under 

the full waiver criteria. Similarly, for 

newly acquired off-road yard and nonyard trucks EPA will evaluate such 

requirements under the full 

authorization criteria. 

In addition to the extent the CHE inuse standards apply to yard and nonyard trucks registered on-road EPA 

agrees with CARB’s assessment that 

such requirements are not preempted by 

section 209(a) of the Act (which only 

applies to ‘‘new’’ motor vehicles and 

‘‘new’’ motor vehicle engines) and 

therefore do not require a waiver from 

EPA. Lastly, to the extent the in-use 

standards apply to non-new off-road 

yard and non-yard trucks (those not 

registered for on-road operation) EPA 

will evaluate such requirements under 

the full authorization criteria as 

requested by CARB. 

II. Discussion 

A. California’s Protectiveness 

Determination 

Section 209(b)(1)(A) of the Act 

requires EPA to deny a waiver if the 

Administrator finds that California was 

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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 9921 

28 70 FR 50322 (August 26, 2005). 

29See CARB Resolution 05–62. 

30 75 FR 8056 (February 23, 2010). 

31See CARB Resolution 05–62. 

32See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

33See, 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). 

34 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). 

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. 

Similarly, section 209(e)(2)(i) of the 

Act instructs that EPA cannot grant an 

authorization if the Administrator 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. 

EPA previously found that CARBs 

regulations establishing emission 

standards for 2007 and subsequent 

model year heavy duty on-road diesel 

engines are as protective of the public 

health and welfare as comparable 

federal standards.28 CARB has found 

that to the extent the CHE regulations 

permit newly acquired on-road yard 

trucks, newly acquired on-road nonyard trucks and in-use yard trucks to 

comply by using current model year 

certified on-road diesel engines, they do 

not undermine the board’s previous 

determination that its emission 

standards, in the aggregate, are at least 

as protective of public health and 

welfare as comparable federal 

standards.29

EPA previously found that CARB’s 

regulations for new nonroad Tier 4 

engines are at least as protective of the 

public health and welfare as comparable 

federal standards.30 CARB has found 

that to the extent the CHE regulations 

permit newly acquired off-road yard 

trucks, newly acquired off-road nonyard trucks and in-use yard trucks to 

comply by using Tier 4 off-road CI 

emission standards engines, they do not 

undermine the board’s previous 

determination that its emission 

standards, in the aggregate, are at least 

as protective of public health and 

welfare as comparable federal 

standards.31

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 CHE requirements are, in 

the aggregate, at least as protective of 

public health and welfare as applicable 

Federal standards. 

B. 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. 

Similarly, section 209(e)(2)(ii) of the 

Act instructs that EPA cannot grant an 

authorization if the Administrator finds 

that California does not need such 

standards to meet compelling and 

extraordinary conditions. This criterion 

restricts EPA’s inquiry to whether 

California needs its own mobile source 

pollution program to meet compelling 

and extraordinary conditions, and not 

whether any given standards are 

necessary to meet such conditions.32

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.33 In Resolution 

05–62, 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.’’ 34 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 or authorization for 

its CHE requirements under section 

209(b)(1)(B) or section 209(e)(2)(ii), 

respectively. 

C. Consistency With Section 202(a) and 

209 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. 

Similarly, 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) 

As noted above, EPA considers 

CARB’s nonroad authorization requests 

under certain criteria including whether 

CARB’s requirements are consistent 

with section 209(a) of the Act (to be 

consistent with section 209(a) of the 

Clean Air Act, California’s requirements 

must not apply to new motor vehicles 

or engines). However, in this instance 

California’s CHE requirements affect 

both new motor vehicles and engines 

along with affecting nonroad vehicles 

and engines. To the extent the CHE 

requirements do affect motor vehicles 

and engines (CHE motor vehicle 

requirements) CARB explicitly requests 

a waiver of preemption under section 

209(b) rather than an authorization 

under section 209(e)(2). EPA is 

evaluating the CHE motor vehicle 

requirements under section 209(b). The 

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9922 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 

35CARB’s waiver and authorization request letter 

at p. 21, citing section 2479(e)(1)(B) of its 

regulations. 

36BNSF Railway Company and Union Pacific 

Railroad Company note that they are currently 

complying with the CHE regulation in their efforts 

to work with the state and to reduce emissions from 

rail operations. Further, they state that ‘‘Regardless 

of whether or not EPA issues a waiver for the 

retrofit component of the CHE rule, the Railroads 

are not waiving any aspect of preemption or setting 

any precedent as to preemption or voluntary 

compliance with other rules or agreements.’’ EPA’s 

decision granting a waiver and authorization for 

CARB’s CHE regulations addresses only the specific 

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

Clean Air Act. It does not address ancillary issues 

related to harmonizing CAA authority with other 

federal preemptions, such as Interstate Commerce 

Commission Termination Act (ICCTA), that restrict 

the authority of local governments to regulate 

railroads. 

37Similar to SSAT’s comments on yard trucks it 

is unclear whether the commenters are raising 

concerns with newly acquired non-yard trucks or 

in-use non-yard trucks. EPA notes that in-use 

requirements for on-road vehicles are not 

preempted by section 209 of the Act. 

purpose of section 209(b) is to waive the 

preemption otherwise created by section 

209(a). To the extent the CHE 

requirements affect nonroad vehicles 

and engines (CHE nonroad 

requirements) CARB explicitly requests 

an authorization under section 

209(e)(2). By logical extension and 

definition such CHE nonroad 

requirements only pertain to nonroad 

vehicles and engines and are thus not 

motor vehicles under section 209(a). 

No commenter presented otherwise; 

therefore, EPA cannot deny California’s 

authorization request on the basis that 

California’s CHE 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 CHE nonroad 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 CHE equipment is not 

used in farm and construction 

equipment or vehicles or engines used 

in locomotives.35 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).36

3. Consistency With Section 209(b)(1)(C) 

and Section 202(a) 

As noted above, EPA’s evaluation of 

CARB nonroad authorization requests 

(e.g. the CHE nonroad requirements) 

includes consideration of whether their 

requirements are consistent with section 

209(b)(1)(C) of the Act. In addition, 

EPA’s evaluation of CARB waiver 

requests (e.g., the CHE motor vehicle 

requirements) includes consideration of 

whether their requirements are 

consistent with section 209(b)(1)(C). 

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

EPA must deny a California 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. 

CARB states that the CHE regulations 

are consistent with section 202(a). 

CARB states that the technological 

feasibility of the emission requirements 

related to yard trucks registered for 

operation on-road is not disputed since 

such vehicles need only meet the 2007 

on-road engines standards previously 

waived by EPA. CARB’s CHE 

regulations do not change the 

underlying test procedures for on-road 

engines. CARB notes that newly 

acquired non-yard trucks registered for 

operation on-road are similar to yard 

trucks noted above in terms of 

applicable emission standards and test 

procedures. 

With respect to off-road yard and nonyard trucks CARB notes that the 

applicable emission standards (either 

the 2007 on-road standards previously 

waived by EPA or the Tier 4 nonroad 

standards previously authorized by 

EPA) are technologically feasible. CARB 

also notes that to the extent operators 

use option 3 (the use of a lower tier 

engine if option 1 and 2 are not 

available, and the subsequent 

installation of VDECS) it is feasible 

given the number of VDECS verified to 

date. 

EPA received comment from SSAT 

noting problems with ‘‘post 07 yard 

truck issues’’ and challenges associated 

with non-yard trucks and VDECs. With 

respect to the yard truck issue it appears 

that SSAT is concerned that it is only 

able to use a certain manufacturer’s 

engine and such engine has exhaust gas 

leak issues that includes disabling the 

EGR system. SSAT contends that it is 

dealing with a 25% failure rate. CARB 

notes in response that the exact nature 

of the failure rate at the terminals is 

unclear and its conclusions seem to be 

based on opinion rather than any data 

in the record. CARB surmises the 

problem may be associated with 

maintenance or operational practices. 

SSAT provided no further explanation 

as to why the engine it identified is the 

only usable engine. Based on the limited 

information submitted by SSAT, and as 

CARB notes the fact that 38 other 

terminals have voluntarily acquired new 

yard trucks equipped with new on-road 

CI engines with none reporting EGR 

problems and none submitting comment 

to EPA, we find that opponents of the 

waiver have not met their burden of 

proof to demonstrate that the new yard 

truck emission standards are infeasible 

or otherwise inconsistent with section 

202(a). 

With regard to non-yard trucks EPA 

received comment from SSAT and Ports 

America regarding the use of VDECS for 

compliance.37 The commenters’ 

comments include: VDECS become 

plugged and do not operate properly; 

the compliance extension provisions are 

ambiguous, forcing fleet owners to 

undergo an arduous and expensive 

process; and the VDECS are expensive. 

CARB provides several responses to 

concerns of improper operating and 

plugging VDECS. CARB notes that nine 

Level 3 emission control devices have 

been verified for non-yard truck 

applications and that at least 77 VDECS 

have been installed on a wide-variety of 

vehicle applications. CARB understands 

that while excess soot may plug some 

VDECS there is strong evidence to 

suggest that fleet owners are not 

properly performing manual 

regeneration or that improper sizing of 

VDECS with engines may be occurring. 

This coupled with a lack of concrete 

information and data from the 

commenters causes CARB to suggest 

that a showing of infeasibility had not 

been shown. 

CARB also notes that to the extent the 

use of VDECS is not available its 

compliance extension provisions 

provide ample opportunity for fleet 

operators to comply with the CHE 

regulations. CARB responds to the 

commenters’ suggestion that the 

compliance extension provisions are 

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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 9923 

38See CARB’s January 29, 2007 request at pp. 11– 

12, and 34 where CARB sets out 5 different types 

of extensions (e.g., a one year extension if an engine 

is within one year of retirement, a two-year 

extension if no VDECS is available, etc.). 

ambiguous (extensions are granted by 

CARB if the VDECS are ‘‘not available’’ 

and ‘‘not feasible’’) by pointing to its 

initial request to EPA for a waiver and 

authorization where CARB discussed 

compliance flexibility and relief.38

CARB maintains that nothing in the 

comments contradicts CARB’s reasons 

for the provisions or that the terms of 

the provisions are illusory. CARB notes 

that to date SSAT has never requested 

an extension and Ports America has 

requested and received an extension. 

CARB also provides an accounting of 88 

compliance extension requests it has 

received with no indication of any 

problems. In addition, CARB provides a 

detailed explanation of its 

administrative process for handling 

such requests. 

Based on the lack of concrete 

evidence from the commenters that it 

has incurred unreasonable delays or 

other difficulties making its compliance 

with the CHE regulations infeasible, 

EPA cannot deny CARB’s request based 

on the infeasibility of CARB’s 

compliance provisions. 

Finally, with regard to the costs 

associated with VDECS the commenters 

note ‘‘The cost of [VDECS] typically cost 

40k each dropped 50% on ‘some’ 

systems when the economy took a down 

turn. We are looking at spending 

millions of dollars to one or two 

vendors who charge whatever they feel 

they can get away with.’’ CARB replies 

by noting that nowhere do the 

commenters assert that the costs make 

the CHE regulation infeasible. CARB 

notes that the nature or port terminals 

and intermodal railroads make them 

multimillion-dollar businesses with 

highly polluting equipment. Without 

hard evidence from the commenters as 

to why the costs render the regulations 

infeasible, CARB suggests that costs are 

a policy question for CARB to consider 

when adopting the regulation and that 

EPA should follow its historical practice 

of deference. 

EPA notes that it is required to closely 

examine costs when making a 

determination of whether there is 

evidence in the record to support a 

finding that CARB’s regulations are 

technologically infeasible. In this 

instance there is insufficient evidence in 

the record to demonstrate why the costs 

of VDECS are inappropriately high 

when compared to the costs of the 

underlying vehicles or why the costs are 

otherwise inappropriately prohibitive. 

Therefore, based on the record, EPA 

cannot make a finding that CARB’s CHE 

regulations are inconsistent with section 

202(a) based on considerations of costs. 

As noted above, EPA’s consideration 

of the consistency with section 202(a) 

includes a review of whether 

California’s test procedures impose 

requirements inconsistent with federal 

test procedures. Because CARB’s test 

procedures are incorporated in 

previously waived and authorized 

regulations (e.g., the Tier 4 nonroad 

standards and the 2007 heavy-duty 

diesel engine regulations) and such 

regulations harmonize their test 

procedures with applicable federal test 

procedures CARB maintains there is no 

test procedure inconsistency. We have 

received no comments presented 

otherwise; therefore, based on the 

record before me I cannot deny CARB’s 

request based on a lack of test procedure 

consistency. 

III. Decision 

EPA’s analysis finds that the criteria 

for granting a full authorization and a 

full waiver of preemption have been met 

for CARB’s CHE regulations. 

The Administrator has delegated the 

authority to grant California a section 

209(b) waiver to enforce its own 

emission standards for new motor 

vehicles and engines and to grant 

California a section 209(e) authorization 

to enforce its own emission standards 

for nonroad engines and equipment to 

the Assistant Administrator for the 

Office of Air and Radiation. Having 

given consideration to all the material 

submitted for this record, and other 

relevant information, I find that I cannot 

make the determinations required for a 

denial of a waiver request pursuant to 

section 209(b) of the Act nor can I make 

the determination required for a denial 

of an authorization pursuant to section 

209(e) of the Act. Therefore I grant both 

a waiver of preemption and 

authorization to the State of California 

with respect to its CHE regulations as 

set for the above. 

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 

engines 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 23, 2012. Judicial 

review of this final action may not be 

obtained in subsequent enforcement 

proceedings, pursuant to section 

307(b)(2) of the Act. 

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: November 28, 2011. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2012–3793 Filed 2–17–12; 8:45 am] 

BILLING CODE 6560–50–P 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

Agency Information Collection 

Activities 

AGENCY: Equal Employment 

Opportunity Commission. 

ACTION: Notice of Information 

Collection—Extension Without Change: 

Demographic Information on Applicants 

for Federal Employment. 

SUMMARY: In accordance with the 

Paperwork Reduction Act, the Equal 

Employment Opportunity Commission 

(EEOC or Commission) announces that 

it intends to submit to the Office of 

Management and Budget (OMB) a 

request for a one-year extension of the 

Demographic Information on 

Applicants, OMB No. 3046–0046. 

DATES: Written comments on this notice 

must be submitted on or before April 23, 

2012. 

ADDRESSES: Comments should be sent to 

the Executive Officer, Executive 

Secretariat, Equal Employment 

Opportunity Commission, 131 M Street 

NE., Washington, DC 20507. As a 

convenience to commenters, the 

Executive Secretariat will accept 

comments totaling six or fewer pages by 

facsimile (‘‘FAX’’) machine. This 

limitation is necessary to assure access 

to the equipment. The telephone 

number of the fax receiver is (202) 663– 

4114. (This is not a toll-free number). 

Receipt of FAX transmittals will not be 

acknowledged, except that the sender 

may request confirmation of receipt by 

calling the Executive Secretariat staff at 

(202) 663–4070 (voice) or (202) 663– 

4074 (TTY). (These are not toll-free 

mstockstill on DSK4VPTVN1PROD with NOTICES