Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 72851 

52See, e.g., 43 FR 32182 (July 25, 1978). 

53CARB Support Document at 27. 

1California Air Resources Board (CARB), Request 

for Authorization, December 5, 2008, EPA–HQ– 

OAR–2011–0102–0002. 

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.52 CARB presents that the PDE 

regulation raises no issue regarding test 

procedure consistency because the 

regulation does not establish any test 

procedures for which there are 

comparable federal test procedures.53

EPA received no comments suggesting 

that CARB’s PDE regulation poses any 

test procedure consistency problem. 

Therefore, based on the record, EPA 

cannot find that CARB’s testing 

procedures are inconsistent with section 

202(a). Consequently, EPA cannot deny 

CARB’s request based on this criterion. 

E. Authorization Determination for 

California’s PDE Regulation 

After a review of the information 

submitted by CARB, EPA finds that 

those opposing California’s request have 

not met the burden of demonstrating 

that authorization for California’s PDE 

regulation should be denied based on 

any of the statutory criteria of section 

209(e)(2). For this reason, EPA finds that 

an authorization for California’s PDE 

regulation should be granted. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating California’s PDE 

regulation and CARB’s submissions, 

EPA is granting an authorization to 

California for its PDE regulation. 

My decision will affect not only 

persons in California, but also entities 

outside the State who must comply with 

California’s requirements. For this 

reason, I determine and find that this is 

a final action of national applicability 

for purposes of section 307(b)(1) of the 

Act. Pursuant to section 307(b)(1) of the 

Act, judicial review of this final action 

may be sought only in the United States 

Court of Appeals for the District of 

Columbia Circuit. Petitions for review 

must be filed by February 4, 2013. 

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: November 29, 2012. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2012–29511 Filed 12–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9758–1] 

California State Nonroad Engine 

Pollution Control Standards; Portable 

Equipment Registration Program; 

Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 

SUMMARY: EPA is granting authorization 

for the California Air Resources Board’s 

(CARB’s) amendments to its Portable 

Equipment Registration Program (PERP), 

and confirming that certain portions of 

CARB’s PERP program is within the 

scope of previous EPA authorizations. 

PERP is a voluntary statewide program 

that enables registration of nonroad 

engines and equipment that operate at 

multiple locations across California, so 

that the engine and equipment owners 

can operate throughout California 

without obtaining permits from local air 

pollution control districts. 

DATES: Petitions for review must be filed 

by February 4, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2011–0102. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

working days from 8:30 a.m. to 4:30 

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

Center’s Web site is http://www.epa.gov/ 

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-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–2011–0102 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. Although a 

part of the official docket, the public 

docket does not include Confidential 

Business Information (‘‘CBI’’) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

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

page that contains general information 

on its review of California waiver 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in today’s 

notice; the page can be accessed at 

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

FOR FURTHER INFORMATION CONTACT: 

Kristien G. Knapp, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue (6405J) NW., 

Washington, DC 20460. Telephone: 

(202) 343–9949. Fax: (202) 343–2800. 

Email: knapp.kristien@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. California’s PERP Authorization 

Request 

In a letter dated December 5, 2008, 

CARB submitted to EPA its request 

pursuant to section 209 of the Clean Air 

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

Portable Equipment Registration 

Program (‘‘PERP’’).1 The PERP was 

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72852 Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 

2CARB notes in its request that ‘‘For the record, 

CARB believes that because participation in the 

Statewide Program is voluntary, the emission 

standards for registered nonroad engines are not 

subject to the [Clean Air Act] § 209 preemption. 

Since the emission standards apply only if an 

owner voluntarily elects to register, the standards 

do not constitute ‘standards and other 

requirements’ within the meaning of section 209(e), 

which CARB believes only applies to mandated 

requirements. However, without prejudice to 

CARB’s position and to avoid further delay in 

obtaining federal authorization, CARB submits this 

request.’’ EPA takes no position here on CARB’s 

beliefs with respect to its need for authorization of 

a voluntary program. 

3CARB has requested an authorization for its air 

toxic control measure for portable diesel engines. 

EPA announced the opportunity for public hearing 

and public comment on that request by a Federal 

Register notice published February 9, 2011. See 76 

FR 7196 (February 9, 2011). 

4CARB, Request for Authorization at 2; California 

Health and Safety Code (CA HSC) § 41750. 

5CA HSC § 41752. 

6California Code of Regulations, title 13 §§ 2450 

through 2465. 

7CARB, Request for Authorization at 3. 

8 Id.; CARB, Resolution 07–9 at 1. 

9CARB, Resolution 07–9 at 1. 

10 Id. 

11See California State Nonroad Engine Pollution 

Control Standards; Authorization of State Standards 

for 1996 and later New Diesel Cycle Engines 175 

Horsepower and Greater, 60 FR 48981 (September 

21, 1995); California State Nonroad Engine and 

Vehicle Pollution Control Standards; Authorization 

of Large Off-Road Spark-Ignition Engine Standards, 

Notice of Decision, 71 FR 29621 (May 23, 2006). 12 59 FR 36969 (July 20, 1994). 

13 62 FR 67733 (December 30, 1997). The 

applicable regulations, now in 40 CFR part 1074, 

subpart B, 1074.105, provide: 

(a) The Administrator will grant the authorization 

if California determines that its standards will be, 

in the aggregate, at least as protective of public 

health and welfare as otherwise applicable federal 

standards. 

(b) The authorization will not be granted if the 

Administrator finds that any of the following are 

true: 

(1) California’s determination is arbitrary and 

capricious. 

(2) California does not need such standards to 

meet compelling and extraordinary conditions. 

(3) The California standards and accompanying 

enforcement procedures are not consistent with 

section 209 of the Act. 

(c) In considering any request from California to 

authorize the state to adopt or enforce standards or 

other requirements relating to the control of 

emissions from new nonroad spark-ignition engines 

smaller than 50 horsepower, the Administrator will 

give appropriate consideration to safety factors 

(including the potential increased risk of burn or 

fire) associated with compliance with the California 

standard. 

established by CARB as a voluntary 

program to address the concern that 

equipment owners who moved 

equipment within California often faced 

the need to obtain preconstruction and 

operating permits from different local 

air pollution control districts in the 

state.2 The PERP allows voluntary 

registration of either spark-ignition (SI) 

or compression-ignition (CI) portable 

piston driven internal combustion 

engines or portable equipment units. 

Under the PERP, once registered, 

equipment is no longer subject to local 

air pollution control district permitting 

requirements. Rather, registration with 

the PERP allows equipment to be moved 

more freely within the state. ‘‘Portable’’ 

as defined within CARB’s PERP 

program, means equipment that is 

designed and capable of being 

transported from one location to 

another. Not all equipment is eligible for 

registration in the PERP; generally, 

engines used for propulsion, as part of 

a stationary source, or used to produce 

power into the California electricity grid 

are not eligible for registration under the 

PERP. The PERP sets out four general 

requirements applicable to all registered 

equipment: (1) Registered equipment 

may not operate in a manner that causes 

a nuisance; (2) registered equipment 

may not interfere with attainment of 

federal or state air quality standards; (3) 

registered equipment may not cause an 

exceedance of an ambient air quality 

standard; and (4) owners of registered 

equipment (or combined operation of 

such equipment) must provide notice 

and comply with requirements for 

prevention of significant deterioration 

(PSD) if it would constitute a major 

modification of that source. The PERP 

also has specific requirements for both 

registered engines and certain types of 

equipment units. For engines, the 

specific requirements include fuel-type 

restrictions, opacity limits, mass 

emissions and emission concentration 

limits, and metering requirements, 

based on engine size. With limited 

exceptions, after January 1, 2006, only 

engines that meet the most stringent 

CARB or EPA emission standards in 

effect at the time of registration are 

allowed in the PERP. Registered 

compression-ignition engines must also 

meet requirements of the CARB 

Airborne Toxic Control Measure 

(ATCM) for in-use portable diesel-fueled 

engines 50 brake-horsepower (hp) and 

greater portable engines (CARB’s 

portable diesel equipment (PDE) 

regulations).3 For equipment, the PERP 

sets daily and annual mass emission 

limits for all registered equipment units 

(exclusive of engine emissions). Certain 

types of equipment, such as concrete 

batch plants and rock crushing and 

screening plants, have specific, 

additional requirements, primarily 

aimed to minimize particulate 

emissions associated with their 

operation. The PERP also includes 

regulatory requirements for 

recordkeeping, reporting, inspection, 

testing, fee collection, and enforcement. 

In 1995, the California Legislature 

passed Assembly Bill (AB) 531 to 

address a perceived problem with the 

use of portable equipment and 

associated engines that were operated in 

more than one air pollution control 

district.4 CARB was directed by AB 531 

to create and administer a voluntary 

statewide program for the registration of 

portable equipment.5 In 1997, CARB 

adopted regulations creating the PERP,6

which was amended by CARB in 1998, 

2005, 2006, and March 2007.7 CARB 

adopted Resolution 07–9 on March 22, 

2007, which amended the PERP, after a 

public hearing held earlier that month.8

Executive Order G–07–013 was issued 

by the Executive Officer, and the 

regulations were submitted to the Office 

of Administrative Law (OAL), on July 

31, 2007.9 On September 12, 2007, OAL 

approved the regulations and they 

became operative the same day.10

CARB has requested that EPA confirm 

that parts of the voluntary PERP for 

portable engines and equipment fall 

within the scope of previously issued 

authorizations or submitted 

authorization requests (i.e., the ATCM 

for Portable Diesel Engines),11 and that 

the Administrator grant a new 

authorization for those emission 

standards not otherwise covered by a 

within-the-scope confirmation. 

B. Clean Air Act Nonroad Engine and 

Vehicle Authorizations 

Section 209(e)(1) of the Act 

permanently preempts any State, or 

political subdivision thereof, from 

adopting or attempting to enforce any 

standard or other requirement relating 

to the control of emissions for certain 

new nonroad engines or vehicles. States 

are also preempted from adopting and 

enforcing standards and other 

requirements related to the control of 

emissions from non-new nonroad 

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

requires the Administrator, after notice 

and opportunity for public hearing, to 

authorize California to enforce such 

standards and other requirements, 

unless EPA makes one of three findings. 

In addition, other states with attainment 

plans may adopt and enforce such 

regulations if the standards, and 

implementation and enforcement 

procedures, are identical to California’s 

standards. On July 20, 1994, EPA 

promulgated a rule that sets forth, 

among other things, regulations 

providing the criteria, as found in 

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

consider before granting any California 

authorization request for new nonroad 

engine or vehicle emission standards.12

EPA later revised these regulations in 

1997.13 As stated in the preamble to the 

1994 rule, EPA has historically 

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Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 72853 

14 59 FR 36969 (July 20, 1994). 

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

16 Id. 

17 Id. 

18 Id. 

19See, e.g., 40 FR 21102–103 (May 28, 1975). 

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

21 Id. at 1126. 

22 Id. 

23 76 FR 7194 (February 9, 2011). 

24 Id. 

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).14

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. 

If California amends regulations that 

were previously granted an 

authorization, EPA can confirm that the 

amended regulations are within the 

scope of the previously granted 

authorization. Such within-the-scope 

amendments are permissible without a 

full authorization 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 authorizations. 

C. Burden of Proof 

In Motor and Equip. Mfrs Assoc. v. 

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

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

stated that the Administrator’s role in a 

section 209 proceeding is to: 

consider all evidence that passes the 

threshold test of materiality and * * * 

thereafter assess such material evidence 

against a standard of proof to determine 

whether the parties favoring a denial of the 

waiver have shown that the factual 

circumstances exist in which Congress 

intended a denial of the waiver.15

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.’’ 16

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.17 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.18

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.’’ 19

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 it’s 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they must comply with the statute, when 

presented to the Administrator are presumed 

to satisfy the waiver requirements and that 

the burden of proving otherwise is on 

whoever attacks them. California must 

present its regulations and findings at the 

hearing and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.20

The Administrator’s burden, on the 

other hand, is to make a reasonable 

evaluation of the information in the 

record in coming to the waiver decision. 

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

too, if the Administrator ignores 

evidence demonstrating that the waiver 

should not be granted, or if he seeks to 

overcome that evidence with 

unsupported assumptions of his own, 

he runs the risk of having his waiver 

decision set aside as ‘arbitrary and 

capricious.’ ’’ 21 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 22

D. EPA’s Administrative Process in 

Consideration of CARB’s PERP Request 

Upon review of CARB’s request, EPA 

offered an opportunity for a public 

hearing, and requested written comment 

on issues relevant to a full section 

209(e) authorization analysis, by 

publication of a Federal Register notice 

on February 9, 2011.23 Specifically, we 

requested comment on: (a) Whether 

CARB’s determination that its 

standards, in the aggregate, are at least 

as protective of public health and 

welfare as applicable federal standards 

is arbitrary and capricious, (b) whether 

California needs such standards to meet 

compelling and extraordinary 

conditions, and (c) whether California’s 

standards and accompanying 

enforcement procedures are consistent 

with section 209 of the Act. 

In response to EPA’s February 9, 2011 

Federal Register notice,24 EPA received 

one request for a hearing, which was 

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72854 Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 

25EPA, ‘‘Memorandum from Brianna Iddings to 

Docket ID EPA–HQ–OAR–2011–0102,’’ EPA–HQ– 

OAR–2011–0102–0014. 

26CARB, Resolution 07–9 at 5. 

27CAA § 213. 

28CARB, Request for Authorization at 14. 

29See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

30CARB, Resolution 07–9 at 5. 

31 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). 

32CARB, Request for Authorization at 12. 

33 Id. at 13. 

34 Id. 

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

36H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

37See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 

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

44213 (October 7, 1976). 

later withdrawn, and no public 

comments.25

II. Discussion 

A. Full Authorization Analysis 

1. California’s Protectiveness 

Determination 

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

instructs that EPA cannot grant an 

authorization if the agency finds that 

California was arbitrary and capricious 

in its determination that its standards 

are, in the aggregate, at least as 

protective of public health and welfare 

as applicable federal standards. CARB 

made a protectiveness determination in 

Resolution 07–9, finding that 

California’s PERP is, ‘‘in the aggregate, 

at least as protective of public health 

and welfare as applicable federal 

standards.’’ 26 CARB presents that 

California’s PERP is at least as stringent 

as the federal standards: ‘‘since no 

federal standards exist for in-use 

nonroad engines,27 the emissions 

standards [submitted] are 

unquestionably as protective of 

comparable federal regulations.’’ 28

EPA did not receive any comments 

challenging California’s protectiveness 

determination. Therefore, based on the 

record before us, EPA finds that 

opponents of the authorization have not 

shown that California was arbitrary and 

capricious in its determination that its 

standards are, in the aggregate, at least 

as protective of public health and 

welfare as applicable federal standards. 

2. Need for California Standards To 

Meet Compelling and Extraordinary 

Conditions 

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

instructs that EPA cannot grant an 

authorization if the agency finds that 

California ‘‘does not need such 

California standards to meet compelling 

and extraordinary conditions * * *.’’ 

This criterion restricts EPA’s inquiry to 

whether California needs its own mobile 

source pollution program to meet 

compelling and extraordinary 

conditions, and not whether any given 

standards are necessary to meet such 

conditions.29 As discussed above, for 

over forty years CARB has repeatedly 

demonstrated the need for its mobile 

source emissions program to address 

compelling and extraordinary 

conditions in California. In its 

Resolution 07–9, CARB affirmed its 

longstanding position that, in order to 

fight its serious air pollution problems, 

‘‘California needs its off-road engine 

emission standards to meet compelling 

and extraordinary conditions.’’ 30

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.’’ 31

Furthermore, no commenter has 

presented any argument or evidence to 

suggest that California no longer needs 

a separate mobile source emissions 

program to address compelling and 

extraordinary conditions in California. 

Therefore, EPA has determined that we 

cannot deny California an authorization 

for its PERP under section 209(e)(2)(ii). 

3. 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). 

a. Consistency With Section 209(a) 

To be consistent with section 209(a) 

of the Clean Air Act, California’s PERP 

must not apply to new motor vehicles 

or new motor vehicle engines. 

California’s PERP expressly applies only 

to portable vehicles and expressly 

precludes registration of engines used to 

propel motor vehicles as defined by 

section 216(2) of the Clean Air Act.32 No 

commenter presented otherwise. 

Therefore, EPA cannot deny California’s 

request on the basis that California’s 

PERP is not consistent with section 

209(a). 

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

To be consistent with section 

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

California’s PERP must not affect new 

farming or construction vehicles or 

engines that are below 175 horsepower, 

or new locomotives or their engines. 

CARB presents that ‘‘locomotive and 

locomotive engines cannot be registered 

in the Statewide Program.’’ 33 CARB also 

presents that new farm and construction 

equipment do not fall under the 

program.34 No commenter presented 

otherwise. Therefore, EPA cannot deny 

California’s request on the basis that 

California’s PERP is not consistent with 

section 209(e)(1). 

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

The requirement that California’s 

standards be consistent with section 

209(b)(1)(C) of the Clean Air Act 

effectively requires consistency with 

section 202(a) of the Act. California 

standards are inconsistent with section 

202(a) of the Act if there is inadequate 

lead-time to permit the development of 

technology necessary to meet those 

requirements, giving appropriate 

consideration to the cost of compliance 

within that timeframe. California’s 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if federal and California test 

procedures conflicted. The scope of 

EPA’s review of whether California’s 

action is consistent with section 202(a) 

is narrow. The determination is limited 

to whether those opposed to the 

authorization or waiver have met their 

burden of establishing that California’s 

standards are technologically infeasible, 

or that California’s test procedures 

impose requirements inconsistent with 

the federal test procedures.35

i. Technological Feasibility 

Congress has stated that the 

consistency requirement of section 

202(a) relates to technological 

feasibility.36 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.37 For 

example, a previous EPA waiver 

decision considered California’s 

standards and enforcement procedures 

to be consistent with section 202(a) 

mstockstill on DSK4VPTVN1PROD with 

Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 72855 

38 41 FR 44209 (October 7, 1976). 

39H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

40CARB, Request for Authorization at 16–17. 

41 Id. at 16. 

42 Id. 

43CARB Staff Report: Initial Statement of Reasons 

for the Proposed Amendments to the Statewide 

Portable Equipment Registration Program 

Regulation and Airborne Toxic Control Measure for 

Diesel Particulate Matter From Portable Engines at 

vi.–vii. 

44 Id. at vii. 

45 Id. 

46See, e.g., 43 FR 32182 (July 25, 1978). 

47CARB, Request for Authorization at 17. 

48 Id. 

49To the extent that any provision in CARB’s 

PERP program, which is herein confirmed as within 

the scope, is later construed as not within-the-scope 

of EPA’s prior authorizations, then a full 

authorization is appropriate and granted based 

upon the full authorization evaluation as discussed 

above. 

because adequate technology existed as 

well as adequate lead-time to implement 

that technology.38 Subsequently, 

Congress has stated that, generally, 

EPA’s construction of the waiver 

provision has been consistent with 

congressional intent.39

CARB presents that the technology 

required to comply with its PERP has 

already been established and is 

currently available.40 CARB has 

determined that ‘‘participants in the 

Statewide Program can pass on any 

compliance costs without incurring 

significant economic disruption.’’ 41

CARB further stresses that admission 

into PERP is entirely voluntary, so any 

costs associated with compliance of the 

program are voluntarily incurred by 

those that choose to participate in the 

program.42

CARB staff estimate ‘‘that the total 

economic impact of the proposed 

amendments to the Statewide PERP 

Regulation to affect private businesses 

and public agencies is $6.6 million over 

its lifetime ($6.1 million for private 

businesses and $0.5 million for public 

agencies).’’ 43 The economic impact 

comes from fees for non-compliant 

engines. However, if affected parties 

were instead required to purchase new 

engines that meet current emission 

standards, the overall cost to those 

parties would be around $250 million.44

The PERP thus results in an estimated 

savings of $243.4 million.45

EPA did not receive any comments 

suggesting that CARB’s standards and 

test procedures are technologically 

infeasible. Consequently, based on the 

record, EPA cannot deny California’s 

authorization based on technological 

infeasibility. 

ii. 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.46 CARB presents that the 

PERP requirements raise no issue 

regarding test procedure consistency 

because the tests procedures 

incorporated into the program are 

existing EPA and CARB test 

procedures.47 Either agency’s test 

procedures may be used to demonstrate 

compliance with the program.48

EPA received no comments suggesting 

that CARB’s PERP poses any test 

procedure consistency problem. 

Therefore, based on the record, EPA 

cannot find that CARB’s testing 

procedures are inconsistent with section 

202(a). Consequently, EPA cannot deny 

CARB’s request based on this criterion. 

d. Full Authorization Determination for 

California’s PERP Regulations 

After a review of the information 

submitted by CARB, EPA finds that 

those opposing California’s request have 

not met the burden of demonstrating 

that authorization for California’s PERP 

should be denied based on any of the 

statutory criteria of section 209(e)(2). 

For this reason, EPA finds that an 

authorization for California’s PERP 

should be granted. 

B. Within-the Scope Confirmation 

In our February 9, 2011 Federal 

Register notice, EPA sought comment 

on a range of issues, including those 

applicable to a within-the-scope 

analysis as well as those applicable to 

a full waiver analysis. EPA received no 

public comment in response to our 

request, including no public comments 

on whether EPA should consider 

CARB’s request according to a withinthe-scope analysis of full authorization 

analysis. Therefore, we have evaluated 

CARB’s request by application of our 

traditional analysis of authorizations. At 

the same time, CARB believes it meets 

the requirements for a within-the-scope 

confirmation to the extent that EPA has 

already authorized the numeric 

emission standards referenced in its 

PERP program. According to our 

analysis, as discussed below, we can 

confirm that the PERP program is within 

the scope of previous authorizations 

issued on September 21, 1995 (60 FR 

48981), May 23, 2006 (71 FR 29621), 

and April 4, 2012 (75 FR 8056). 

If California amends regulations that 

were previously granted an 

authorization, EPA can confirm that the 

amended regulations are within the 

scope of the previously granted 

authorization. Such within-the-scope 

amendments are permissible without a 

full authorization 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 209 of the Act. 

Third, the amended regulations must 

not raise any ‘‘new issues’’ affecting 

EPA’s prior authorizations. 

EPA issued an authorization of 

CARB’s diesel emission standards for 

1996 and later new diesel cycle engines 

175 horsepower and greater on 

September 21, 1995 (60 FR 48981). EPA 

also issued authorizations applicable to 

CARB’s large off-road spark-ignition 

engine standards on May 23, 2006 (71 

FR 29621) and April 4, 2012 (75 FR 

8056). As discussed above, the first two 

within-the-scope criteria regarding 

protectiveness and consistency with 

section 209 of the Act have been 

established for the PERP program. 

Additionally, because registration to 

such standards does not appear to 

present a new issue, and no commenter 

presented otherwise, EPA can confirm 

that CARB’s PERP program is within the 

scope of the above-noted EPA 

authorizations, to the extent that the 

PERP requirements are reliant upon the 

emission standards at the heart of the 

above-noted authorizations.49 To the 

extent that CARB’s PERP program 

allows registration of engines and 

equipment to emission standards that 

are not the subject of a previous EPA 

authorization, EPA cannot confirm they 

are within the scope as consideration of 

those provisions present ‘‘new issues’’ 

that have not previously been the 

subject of an authorization. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating California’s PERP 

amendments, and CARB’s submissions, 

EPA is granting an authorization to 

California for its PERP amendments. To 

the extent that the PERP program allows 

registration of equipment for which EPA 

has already issued authorizations to 

California, EPA is confirming that those 

mstockstill on DSK4VPTVN1PROD with 

72856 Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Notices 

provisions are within the scope of its 

previous authorizations. 

My decision will affect not only 

persons in California, but also entities 

outside the State who must comply with 

California’s requirements. For this 

reason, I determine and find that this is 

a final action of national applicability 

for purposes of section 307(b)(1) of the 

Act. Pursuant to section 307(b)(1) of the 

Act, judicial review of this final action 

may be sought only in the United States 

Court of Appeals for the District of 

Columbia Circuit. Petitions for review 

must be filed by February 4, 2013. 

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: November 29, 2012. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2012–29513 Filed 12–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9758–3] 

New York State Prohibition of 

Discharges of Vessel Sewage; Receipt 

of Petition and Tentative Affirmative 

Determination 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice—receipt of petition and 

tentative affirmative determination. 

SUMMARY: Notice is given that, pursuant 

to Clean Water Act Section 312(f)(3), the 

State of New York has determined that 

the protection and enhancement of the 

quality of the New York State (NYS or 

the State) portion of Lake Erie requires 

greater environmental protection, and 

has petitioned the United States 

Environmental Protection Agency, 

Region 2, for a determination that 

adequate facilities for the safe and 

sanitary removal and treatment of 

sewage from all vessels are reasonably 

available for those waters, so that the 

State may completely prohibit the 

discharge from all vessels of any 

sewage, whether treated or not, into 

such waters. 

New York State has proposed to 

establish a ‘‘Vessel Waste No Discharge 

Zone’’ for the State’s portion of Lake 

Erie stretching from the PennsylvaniaNew York State boundary to include the 

upper Niagara River to Niagara Falls. 

The proposed No Discharge Zone 

encompasses approximately 593 square 

miles and 84 linear shoreline miles, 

including the navigable portions of the 

Upper Niagara River and numerous 

other tributaries and harbors, and 

embayments of the Lake, including 

Barcelona Harbor, Dunkirk Harbor and 

Buffalo Outer Harbor, and other 

formally designated habitats and 

waterways of local, state, and national 

significance. 

DATES: Comments regarding this 

tentative determination are due by 

January 7, 2013. 

Petition: You may view Lake Erie No 

Discharge Zone Petition by clicking the 

link below: http://www.epa.gov/ 

region02/water/permits.html. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Email: chang.moses@epa.gov. 

Include ‘‘Comments on Tentative 

Affirmative Decision for NYS Lake Erie 

NDZ’’ in the subject line of the message. 

• Fax: 212–637–3891. 

• Mail and Hand Delivery/Courier: 

Moses Chang, U.S. EPA Region 2, 290 

Broadway, 24th Floor, New York, NY 

10007–1866. Deliveries are only 

accepted during the Regional Office’s 

normal hours of operation (8 a.m. to 5 

p.m., Monday through Friday, excluding 

federal holidays), and special 

arrangements should be made for 

deliveries of boxed information. 

FOR FURTHER INFORMATION CONTACT: 

Moses Chang, (212) 637–3867, email 

address: chang.moses@epa.gov. 

SUPPLEMENTARY INFORMATION: Notice is 

given that the State of New York has 

petitioned the United States 

Environmental Protection Agency 

(EPA), Region 2, pursuant to section 

312(f)(3) of Public Law 92–500 as 

amended by Public Law 95–217 and 

Public Law 100–4, that adequate 

facilities for the safe and sanitary 

removal and treatment of sewage from 

all vessels are reasonably available for 

the NYS portion of Lake Erie. Adequate 

pumpout facilities are defined as one 

pumpout station for every 300–600 

boats under the Clean Vessel Act: 

Pumpout Station and Dump Station 

Technical Guidelines (Federal Register, 

Vol. 59, No. 47, March 10, 1994). 

The Great Lakes are the largest group 

of freshwater lakes on Earth, containing 

95% of the fresh surface water in the 

United States and serving as the largest 

single reservoir on Earth. The glacial 

history and the influence of the Lakes 

themselves create unique conditions 

that support a wealth of biological 

diversity, including over 200 globally 

rare plants and animals and more than 

40 species that are found nowhere else 

in the world. 

Lake Erie is the smallest of the Great 

Lakes. It is also the shallowest, with 

depths that range from an approximate 

average of 24 feet in the western basin, 

to 82 feet in the deeper eastern basin. As 

the shallowest of the Great Lakes, it 

warms quickly in the spring and 

summer, and cools quickly in the fall. 

This shallowness and the warmer 

temperatures result in making Lake Erie 

the most biologically productive of the 

Great Lakes. 

The New York State Department of 

Environmental Conservation (DEC) 

developed the New York State petition 

in collaboration with New York State 

Department of State (DOS) and the New 

York State Environmental Facilities 

Corporation (EFC) to establish a vessel 

waste No Discharge Zone (NDZ) on the 

open waters, tributaries, harbors and 

embayments of New York State’s 

portion of Lake Erie. 

A Clean Water Act Section 

312(f)(4)(B) NDZ designation for 

drinking water intake zones might be 

appropriate for the vast majority of the 

Lake Erie waters included in this 

petition. However, to address the few 

areas that are not Class A (including 

Barcelona Harbor, Dunkirk Harbor and 

the Black Rock Canal), the State is 

seeking a determination by EPA, under 

Section 312(f)(3), that adequate facilities 

exist for the safe and sanitary removal 

and treatment of sewage from all vessels 

using this area of the Lake, and has 

provided information on Lake resources, 

vessel traffic, and vessel pumpout 

facilities in support of such a 

determination. In support of its petition, 

the state also submitted a Certification 

of the Need for Greater Protection and 

Enhancement of Lake Erie waters. 

The Lake Erie watershed is home to 

approximately one-third of the total 

human population of the Great Lakes 

basin: 11.6 million people (10 million 

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