Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 77521 

43At-Berth Regulation section (b)(2), section 

93118.3(b)(2), title 17, chapter 1, subchapter 7.5, 

California Code of Regulations, EPA–HQ–OAR– 

2011–0548–0012. 

44CARB FSOR at 20. 

45See, e.g., 74 FR 32744, 32783 (July 8, 2009). 

46See Motor and Equipment Manufacturers Ass’n 

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

Cir.1998), Motor and Equipment Manufacturers 

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

Cir. 1979). 

47PMSA may raise these issues in a direct 

challenge to California’s regulations in other 

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

limited review under section 209(e). 

necessary approvals, exemptions, or orders 

from the U.S. Coast Guard.43

CARB also points out that many vessels 

already use shore power while docked, 

presumably in compliance with U.S. 

Coast Guard regulations. 

As above, PMSA’s comment here is 

again outside the scope of EPA’s section 

209(e)(2) evaluation of California’s 

authorization request. EPA does not 

review the general appropriateness of 

California’s regulations; nor does EPA’s 

review permit analysis of whether 

California’s regulations conflict with 

areas of Federal law under the purview 

of other agencies. This PMSA comment 

does not make any attempt to show that 

California’s regulations are in conflict 

with any of the criteria in section 

209(e)(2). It therefore cannot be the basis 

for any denial of California’s request for 

authorization under section 209(e)(2). 

Third, PMSA comments that 

California’s At-Berth Regulation’s 

‘‘retrofit requirements’’ are preempted 

under section 209(e) of the Clean Air 

Act. This is another issue that PMSA 

first presented to CARB during the 

California rulemaking. At that time, 

CARB disagreed.44 CARB again pointed 

out that its At-Berth Regulation does not 

require vessel operators to retrofit or 

modify their engines. CARB further 

pointed out that despite section 209(e)’s 

preemption, section 209(e)(2) allows 

California to seek authorization to adopt 

and enforce its nonroad engine 

regulations, which it intended to do and 

has now done. 

PMSA’s comments compare this 

situation to the one addressed by the 

Supreme Court in United States v. 

Locke, 529 U.S. 89 (2000). However, in 

this case, unlike in the case of Locke, 

the statute in question, the Clean Air 

Act, explicitly permits California to 

promulgate its own standards applicable 

to emissions from marine vessels as long 

as EPA does not make any of the 

findings required under section 

209(e)(2) to deny authorization. 

Also, as part of this third general 

comment, PMSA raises two additional 

issues. First, PMSA raises the issue that 

EPA’s authorization would allow other 

states to adopt the At-Berth Regulation, 

and that it is difficult to envision how 

other states would do so. PMSA is 

correct that other states may adopt and 

enforce California standards, if such 

states meet the requirements of section 

209(e)(2)(B) of the Act. While PMSA 

notes that there may be difficulties with 

other states’ adoption of the At-Berth 

Regulation—and PMSA has not made it 

clear that there would be—PMSA makes 

no attempt to explain how this difficulty 

in any way effects California’s ability to 

receive authorization under section 

209(e)(2)(A). Second, PMSA presents its 

opposition to California’s At-Berth 

Regulation on the basis that ocean-going 

vessel emissions are an issue of broad 

concern and should be addressed 

internationally through the International 

Maritime Organization. This comment 

relates to the broad policy 

considerations affecting California’s 

regulation of vessels, but it does not 

address any of the criteria in section 

209(e)(2). It is therefore not within the 

scope of EPA’s review under that 

section. 

As EPA has stated on numerous 

occasions, sections 209(b) and 209(e) of 

the Clean Air Act limits our authority to 

deny California requests for waivers and 

authorizations to the three criteria listed 

therein. As a result, EPA has 

consistently refrained from denying 

California’s requests based on any other 

criteria.45 In instances where the U.S. 

Court of Appeals has reviewed EPA 

decisions declining to deny waiver 

requests based on criteria not found in 

section 209(b), the Court has upheld and 

agreed with EPA’s determination.46

None of the above-described issues 

PMSA raises is among—or fits within 

the confines of—the criteria listed under 

sections 209(e).47 Therefore, in 

considering California’s At-Berth 

Regulation, EPA cannot deny 

California’s request for authorization 

based on these comments. 

E. Authorization Determination for 

California’s At-Berth Regulation 

After a review of the information 

submitted by CARB and PMSA, EPA 

finds that those opposing California’s 

request have not met the burden of 

demonstrating that authorization for 

California’s At-Berth Regulation should 

be denied based on any of the three 

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

For this reason, EPA finds that an 

authorization for California’s At-Berth 

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 At-Berth 

Regulation, CARB’s submissions, and 

the public comments from PMSA, EPA 

is granting an authorization to California 

for its At-Berth 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 13, 2012. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

section 307(b)(2) of the Act. 

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

Act, 5 U.S.C. 801, et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

rule for purposes of 5 U.S.C. 804(3). 

Dated: November 28, 2011. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2011–31909 Filed 12–12–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9503–5] 

California State Nonroad Engine 

Pollution Control Standards; 

Commercial Harbor Craft Regulations; 

Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 


srobinson on DSK4SPTVN1PROD with NOTICES
77522 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 

1Letter from James Goldstene to Lisa P. Jackson, 

EPA–HQ–OAR–2011–0549–0001. 

2CARB, Resolution 07–47, EPA–HQ–OAR–2011– 

0549–0027. 

3CARB, Executive Order R–08–007, EPA–HQ– 

OAR–2011–0549–0030. 

4See CARB, Approval Notice, EPA–HQ–OAR– 

2011–0549–0035. 

5See CARB, Final Regulation Order, EPA–HQ– 

OAR–2011–0549–0034. 

6See CARB, Authorization Support Document, p. 

5, EPA–HQ–OAR–2011–0549–0002 (hereinafter 

‘‘CARB Support Document’’). 

7CARB Support Document, pp. 2–6. 

8CARB Support Document at 2. 

9BACT is the diesel emission control strategy 

(DECS) determined by CARB to be the greatest 

feasible reduction of NOX or PM. 

10CARB Support Document at 3. 

11CARB Support Document at 5. 

SUMMARY: EPA has granted the 

California Air Resources Board (CARB) 

its request for an authorization to adopt 

and enforce regulations for the control 

of emissions of particulate matter and 

oxides of nitrogen from new and in-use 

diesel-fueled engines on commercial 

harbor craft. 

DATES: Petitions for review must be filed 

by February 13, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2011–0549. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

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

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

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

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-r-Docket@

epa.gov, the telephone number is (202) 

566–1742, and the fax number is (202) 

566–9744. An electronic version of the 

public docket is available through the 

federal government’s electronic public 

docket and comment system. You may 

access EPA dockets at http:// 

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2011–0549 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 Commercial Harbor Craft 

Regulations 

In a letter dated April 12, 2010, CARB 

submitted to EPA its request pursuant to 

section 209(e) of the Clean Air Act 

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

regulations to enforce emission 

standards for new and in-use 

commercial harbor craft operated within 

California waters and twenty-four 

nautical miles of the California baseline 

(‘‘commercial harbor craft 

regulations’’).1 The CARB Board 

approved the commercial harbor craft 

regulations at its November 15, 2007 

hearing (by Resolution 07–47).2 After 

making modifications, as directed by the 

Board, CARB’s Executive Officer 

formally adopted the rulemaking in 

Executive Order R–08–007 on 

September 2, 2008.3 CARB’s commercial 

harbor craft regulations became 

operative under California state law on 

November 19, 2008.4 The regulations 

are codified in title 13, California Code 

of Regulations (CCR), section 2229.5 and 

title 17, CCR section 93118.5.5

California’s commercial harbor craft 

regulations establish emission 

standards, requirements related to the 

control of emissions, and enforcement 

provisions. The requirements are 

applicable to diesel propulsion and 

auxiliary engines on new and in-use 

commercial harbor crafts, with some 

exceptions.6 Commercial harbor craft 

include a variety of different types of 

vessels, including ferries, excursion 

vessels, tugboats, towboats, and 

commercial and charter fishing boats. 

Approximately eighty percent of 

commercial harbor craft engines 

operating in California are previously 

unregulated diesel engines, accounting 

for approximately 3.3 tons per day (tpd) 

of diesel particulate matter (PM) and 73 

tpd of oxides of nitrogen (NOX). 

California’s commercial harbor craft 

regulations aim to reduce these 

emissions so that California can meet 

the 2014 National Ambient Air Quality 

Standards (NAAQS) deadline for PM2.5

in the South Coast Air Basin. The 

commercial harbor craft regulations 

apply separately to new and in-use 

engines used on harbor craft.7

For new harbor craft, each propulsion 

and auxiliary diesel engine on the vessel 

is required to be certified to the most 

stringent federal new marine engine 

emission standards for that engine’s 

power rating and displacement in effect 

at the time of sale, lease, rent, or 

acquisition.8 The regulation imposes 

additional requirements for larger new 

ferries (with the capacity to transport 

seventy-five or more passengers), either 

by using best available control 

technology (‘‘BACT’’),9 or by using a 

federal Tier 4 certified propulsion 

engine. 

For in-use harbor craft, new or in-use 

diesel engines may not be sold, offered 

for sale, leased, rented, or acquired 

unless the diesel propulsion or auxiliary 

engines are certified to at least the 

federal Tier 2 or Tier 3 marine emission 

standards for new engines of the same 

power rating and displacement.10 In-use 

emission requirements are imposed on 

Tier 0 and Tier 1 marine engines in 

ferries, excursion vessels, tugboats, 

towboats, push boats, and multipurpose 

harbor craft. Those harbor craft are 

required to meet emission limits equal 

to or cleaner than the federal new 

marine engine certification standards in 

effect for the year that in-use engine 

compliance is required. 

California’s commercial harbor craft 

regulations also impose requirements 

related to monitoring, reporting and 

recordkeeping of compliance on owners 

and operators of new and in-use harbor 

craft.11 Subject to CARB approval, 

harbor craft owners and operators may 

opt to meet requirements by 

implementing alternative emission 

control strategies. 

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. 

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

Administrator to grant California 

authorization to enforce its own 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 77523 

12The 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. 

13See 59 FR 36969 (July 20, 1994). 

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

15 Id. 

16 Id. 

17 Id. 

18See, e.g., 40 FR 21102–103 (May 28, 1975). 

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

20 Id. at 1126. 

21 Id. at 1126. 

22 76 FR 38153 (June 29, 2011). 

standards for new nonroad engines or 

vehicles that 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.12 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).13

In order to be consistent with section 

209(a), California’s nonroad standards 

and enforcement procedures must not 

apply to new motor vehicles or new 

motor vehicle engines. To be consistent 

with section 209(e)(1), California’s 

nonroad standards and enforcement 

procedures must not attempt to regulate 

engine categories that are permanently 

preempted from state regulation. To 

determine consistency with section 

209(b)(1)(C), EPA typically reviews 

nonroad authorization requests under 

the same ‘‘consistency’’ criteria that are 

applied to motor vehicle waiver 

requests. Pursuant to section 

209(b)(1)(C), the Administrator shall not 

grant California a motor vehicle waiver 

if she finds that California ‘‘standards 

and accompanying enforcement 

procedures are not consistent with 

section 202(a)’’ of the Act. Previous 

decisions granting waivers and 

authorizations have noted that state 

standards and enforcement procedures 

are inconsistent with section 202(a) if: 

(1) There is inadequate lead time to 

permit the development of the necessary 

technology giving appropriate 

consideration to the cost of compliance 

within that time, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

C. Burden of Proof 

In Motor and Equip. Mfrs Assoc. v. 

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

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

stated that the Administrator’s role in a 

section 209 proceeding is to: 

consider all evidence that passes the 

threshold test of materiality and * * * 

thereafter assess such material evidence 

against a standard of proof to determine 

whether the parties favoring a denial of the 

waiver have shown that the factual 

circumstances exist in which Congress 

intended a denial of the waiver.14

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.’’ 15

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.16 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.17

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.’’ 18

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.19

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.’ ’’ 20 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 21

D. EPA’s Administrative Process in 

Consideration of California’s 

Commercial Harbor Craft Regulations 

Upon review of CARB’s request, EPA 

offered an opportunity for a public 

hearing, and requested written comment 

on issues relevant to a full section 

209(e) authorization analysis, by 

publication of a Federal Register notice 

on June 29, 2011.22 Specifically, we 


srobinson on DSK4SPTVN1PROD with NOTICES
77524 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 

23The American Waterways Operators (‘‘AWO’’), 

Comments, EPA–HQ–OAR–2011–0549–0038 

(hereinafter ‘‘AWO Comments’’). 

24 K-Sea Transportation Partners L.P. (‘‘K-Sea’’), 

Comments, EPA–HQ–OAR–2011–0549–0037 

(hereinafter ‘‘K-Sea Comments’’). 

25EPA, ‘‘Memorandum from Tayyaba Waqar to 

Docket EPA–HQ–OAR–2011–0549,’’ EPA–HQ– 

OAR–2011–0549–0039. 

26 ‘‘BE IT FURTHER RESOLVED that the Board 

hereby determines, in accordance with section 

209(e)(2) of the CAA, that to the extent the 

regulation approved herein affects nonroad engines 

as defined in CAA section 216(10) and (11), the 

emission standards and other requirements related 

to the control of emissions in the regulation 

approved herein are, in the aggregate, at least as 

protective of public health and welfare as 

applicable federal standards; California needs its 

nonroad emission standards to meet compelling 

and extraordinary conditions; and the standards 

and accompanying enforcement procedures 

approved herein are consistent with CAA section 

209.’’ CARB Resolution 07–47, EPA–HQ–OAR– 

2011–0549–0028. 

27CARB Support Document at 7–8. 

28See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

29 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). 

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 June 29, 2011 

Federal Register notice, EPA received 

two written comments. The written 

comments are from the American 

Waterways Operators (‘‘AWO’’) 23 and 

K-Sea Transportation Partners L.P. (‘‘KSea’’).24 AWO initially requested a 

public hearing, and later withdrew that 

request. After the close of the comment 

period, EPA met with AWO to discuss 

comments from their members.25

AWO comments that California does 

not need the new standards to meet 

compelling and extraordinary 

conditions. AWO also comments that 

California’s standards and enforcement 

procedures are not consistent with the 

Clean Air Act section 209. Additionally, 

AWO expressed other concerns in their 

comments related to the commercial 

harbor craft regulation’s compliance 

schedules. 

K-Sea comments that the new 

regulations are not consistent with 

section 202(a) of the Clean Air Act. KSea also comments that California does 

not need the new regulations to meet 

compelling and extraordinary 

conditions. Additionally, K-Sea does 

not believe that CARB adequately 

assessed the financial impacts and 

compliance costs associated with 

implementation of California’s 

commercial harbor craft regulations. 

II. Discussion 

A. California’s Protectiveness 

Determination 

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

instructs that EPA cannot grant an 

authorization if the agency finds that 

CARB was arbitrary and capricious in 

its determination that its standards are, 

in the aggregate, at least as protective of 

public health and welfare as applicable 

federal standards. CARB’s Board made a 

protectiveness determination in 

Resolution 07–47, finding that 

California’s commercial harbor craft 

regulation will not cause the California 

emission standards, in the aggregate, to 

be less protective of public health and 

welfare than applicable federal 

standards.26 CARB asserts that EPA has 

no basis to find that the CARB Board’s 

determination is arbitrary or 

capricious.27 CARB points out that most 

of the commercial harbor craft 

requirements (for new diesel engines in 

newly acquired harbor craft and ferry 

propulsion engines) are identical to the 

federal requirements for those engines. 

CARB also highlights that its 

requirements for new propulsion diesel 

engines in larger new ferries are more 

stringent that federal standards because 

they additionally require BACT 

technology. With respect to the 

commercial harbor craft regulation’s inuse requirements, CARB additionally 

asserts that its requirements are more 

stringent than applicable federal 

regulations because EPA does not have 

the authority to regulate in-use nonroad 

engines. 

No commenter expressed an opinion 

or presented evidence suggesting that 

CARB was arbitrary and capricious in 

making its above-noted protectiveness 

findings or that CARB’s requirements 

are not, in the aggregate, as stringent as 

applicable federal standards. Therefore, 

based on the record before us, EPA finds 

that opponents of the authorization have 

not shown that California was arbitrary 

and capricious in its determination that 

its standards are, in the aggregate, at 

least as protective of public health and 

welfare as applicable federal standards. 

B. Need for California Standards to 

Meet Compelling and Extraordinary 

Conditions 

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

instructs that EPA cannot grant an 

authorization if the agency finds that 

California ‘‘does not need such 

California standards to meet compelling 

and extraordinary conditions.’’ This 

criterion restricts EPA’s inquiry to 

whether California needs its own mobile 

source pollution program to meet 

compelling and extraordinary 

conditions, and not whether any given 

standards are necessary to meet such 

conditions.28 As discussed above, for 

over forty years CARB has repeatedly 

demonstrated the need for its motor 

vehicle emissions program to address 

compelling and extraordinary 

conditions in California. In its 

Resolution 07–47, CARB re-affirmed its 

longstanding position that California 

continues to need its nonroad emission 

standards 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.’’ 29

AWO asserts that California does not 

need the commercial harbor craft 

regulations to meet compelling and 

extraordinary conditions. AWO focuses 

on California’s goal of improving upon 

the South Coast Air Basin’s nonattainment status by reducing NOX and 

PM2.5 levels. AWO states that there is no 

justification for CARB to adopt 

statewide regulations of NOX and PM2.5

in order to meet the 2014 NAAQS 

deadline for PM2.5 in the South Coast 

Air Basin. AWO reviewed CARB’s 

Initial Statement of Reasons (‘‘ISOR’’) 

and believes that the ISOR does not 

provide sufficient detail to explain the 

relationship between pollutant 

exceedances and commercial harbor 

craft emissions. Additionally, AWO 

believes that the data CARB used from 

2006 and earlier for its analysis of 

commercial harbor craft’s contribution 

to NOX and PM2.5 levels is inaccurate 

and outdated in that it does not 

represent the most current operation of 

tugboats in California waters. AWO also 

points to CARB’s statements regarding 

decrease in emissions for diesel NOX

and PM2.5 because of other effects and 

factors. Further, in comparing data for 

emission reductions with and without 

the proposed standards, AWO 

concludes that CARB’s emission 

reduction goals would be met without 

implementing the commercial harbor 

craft regulation. 

K-Sea also asserts that California does 

not need the commercial harbor craft 

regulation to meet compelling and 

extraordinary conditions. K-Sea argues 

that California used data from 2006 and 

earlier in its rulemaking, which is 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 77525 

30See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

31CARB, Technical Support Document, EPA– 

HQ–OAR–2011–0549–0007, pp. I–1–I–3. 32 Id. 

33For example, AWO analyzed CARB’s ISOR, and 

found that California’s commercial harbor craft 

regulation would achieve ‘‘only 10 percent’’ of 

California’s total estimated statewide PM emission 

reductions and ‘‘only 6 percent’’ of California’s total 

estimated statewide NOX reductions. 

outdated and inaccurate. K-Sea bases 

that argument on its belief that because 

of the recession, which started in 2008, 

emissions have already been in decline. 

K-Sea also states that the data CARB 

used to assess harbor craft emissions 

from tugboats in coastwise service did 

not accurately capture their duty cycles 

or operations within the 24-mile zone of 

the California regulated waters. 

AWO and K-Sea have both presented 

arguments and information suggesting 

that California does not need its 

commercial harbor craft regulations to 

meet compelling and extraordinary 

conditions. However, as discussed 

above, EPA’s inquiry under the section 

209(e)(2)(ii) criterion restricts EPA’s 

inquiry to whether California needs its 

own mobile source air pollution 

program to meet compelling and 

extraordinary conditions, and not 

whether any given standards are 

necessary to meet such conditions.30

Congress decided in 1977 to allow 

California to promulgate individual 

standards that are not as stringent as 

comparable federal standards, as long as 

the standards are ‘‘in the aggregate, at 

least as protective of public health and 

welfare as applicable federal standards.’’ 

This decision by Congress requires EPA 

to allow California to promulgate 

individual standards that are part of 

California’s overall approach to 

reducing mobile source emissions to 

address air pollution problems. 

Congress intended to provide California 

the ‘‘broadest possible discretion’’ in 

selecting the best means to protect its 

citizens and the public welfare and did 

not intend for EPA to weigh which 

particular regulations are most 

appropriate for California to implement 

to protect public health and welfare. 

Consequently, Congress provided EPA a 

much more limited role in considering 

objections raised by opponents of the 

waiver. 

Although AWO and K-Sea believe 

that California does not need its 

commercial harbor craft regulations to 

meet compelling and extraordinary 

conditions, CARB has provided 

evidence that it does. In the California 

rulemaking, CARB explained its need 

for the commercial harbor craft 

regulation.31 Regarding the comment 

that California’s air quality problems are 

limited to the South Coast Air Basin, 

EPA has never suggested in previous 

authorization or waiver proceedings that 

localized air quality concerns are not 

sufficient to receive authorization under 

this criterion. However, even if EPA 

were to accept this comment for the 

sake of argument, CARB has explained 

that it has statewide goals and federal 

Clean Air Act requirements to reduce 

NOX and PM2.5 emissions. CARB 

explained that NOX and PM2.5

reductions are necessary because of the 

relationship between those pollutants 

and the federal non-attainment status in 

both the South Coast and San Joaquin 

Valley air basins: 

The South Coast and San Joaquin Valley 

air basins are the two areas in the State that 

exceed the annual PM2.5 standards. These 

areas are required by federal law to develop 

State Implementation Plans (SIPs) describing 

how they will attain the standards by 2015. 

The U.S. EPA further requires that all 

necessary emission reductions be achieved 

one calendar year sooner—by 2014—in 

recognition of the annual average form [sic] 

the standard. NOX emission reductions are 

needed because NOX leads to formation in 

the atmosphere of both ozone and PM2.5; 

diesel PM emission reductions are needed 

because diesel PM contributes to ambient 

concentrations of PM2.5. San Joaquin Valley 

and South Coast air basins are also in nonattainment for the federal ozone 

standard.* * * 

While all sources of NOX emissions are 

important, marine vessels, which include 

commercial harbor craft engines, are one of 

several key contributors to PM2.5 that will 

determine whether California is able to meet 

the 2014 deadline for PM2.5 attainment in the 

South Coast air basin. 

* * * Staff projects that the regulation 

would reduce in-use harbor craft diesel PM 

emissions about 70 percent and NOX

emissions about 60 percent from the 2004 

baseline by 2020. These emission reductions 

would occur in areas along waterways, near 

ports, and in those communities surrounding 

these areas, as well as further inland. 

The regulation would also reduce diesel 

PM and NOX emissions that contribute to 

exceedances throughout the State of ambient 

air quality standards for both PM2.5 and 

ozone. These reductions would assist 

California in its goal of achieving state and 

federal air quality standards. 

The emission reductions from the 

proposed regulation would result in lower 

ambient PM levels and reduced exposure to 

diesel PM. Staff estimates that approximately 

310 premature deaths statewide would be 

avoided by year 2025 from implementation of 

the proposed regulation. The estimated cost 

benefit of the avoided premature deaths and 

other health benefits due to the emission 

reductions are estimated to range from $1.3 

to $2.0 billion.32

Thus, contrary to AWO’s argument, 

CARB presents that it does need 

statewide commercial harbor craft 

regulations, because NOX and PM 

pollution problems affect the entire 

state. 

Although AWO and K-Sea claim that 

California’s 2006 data is outdated, 

because emissions have decreased since 

2008 due to the recession and other 

emission reduction strategies, they have 

not presented evidence proving this to 

be the case. EPA must rely on the record 

in front of us. Moreover, while both 

AWO and K-Sea suggest that California 

may have overstated the emission 

contributions from harbor craft, they do 

not show that harbor craft do not 

contribute to emissions that affect 

California’s air quality. While the level 

of air pollution may go to the overall 

benefits of the program, it is not relevant 

for determining the need for California’s 

nonroad engine program. Indeed, 

AWO’s comments make clear that the 

harbor craft regulations will result in 

emission reductions.33

Moreover, AWO’s argument relies on 

California’s other emission reduction 

strategies to make its case, but it is 

inappropriate for EPA to decide which 

California regulations are needed, and 

which are not. CARB presented that 

they expect the emission reductions 

from the commercial harbor craft 

regulation to benefit the entire state in 

meeting federal standards and reaching 

their statewide emission reduction 

goals. While AWO believes California’s 

state goals will be met without the 

commercial harbor craft regulation, they 

do not present evidence to support that 

belief, nor do they suggest that the San 

Joaquin or South Coast air basins would 

actually meet federal ozone and PM 

standards without the commercial 

harbor craft regulation. Nor would it be 

appropriate for EPA to decide that the 

other emission controls on which AWO 

relies are necessary but the controls on 

commercial harbor craft are not. Aside 

from the fact that all sources of 

pollution could argue that other sources 

should be regulated instead of them, 

EPA’s review is not intended to replace 

the policy decisions of California in 

determining the appropriate emission 

control strategies it will use to meet its 

air quality needs. 

Based on the above, those opposing 

the authorization have not met the 

burden of proof necessary for EPA to 

find 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 authorization for 

its commercial harbor craft regulations 

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


srobinson on DSK4SPTVN1PROD with NOTICES
77526 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 

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

35H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

36See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 

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

44213 (October 7, 1976). 

37 41 FR 44209 (October 7, 1976). 

38H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 

(1977). 

39CARB Support Document at 9–13. 

C. Consistency With Section 209 of the 

Clean Air Act 

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

instructs that EPA cannot grant an 

authorization if California’s standards 

and enforcement procedures are not 

consistent with section 209. As 

described above, EPA has historically 

evaluated this criterion for consistency 

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

209(b)(1)(C). 

1. Consistency With Section 209(a) 

To be consistent with section 209(a) 

of the Clean Air Act, California’s 

commercial harbor craft regulations 

must not apply to new motor vehicles 

or new motor vehicle engines. 

California’s commercial harbor craft 

regulations apply to nonroad engines, 

not on-highway motor vehicles or 

engines. CARB states that the new 

vessel requirements regulate new diesel 

engines, and apply only to nonroad 

engines that are neither new motor 

vehicles nor new motor vehicle engines. 

No commenter presented otherwise; 

therefore, EPA cannot deny California’s 

request on the basis that California’s 

commercial harbor craft regulations are 

not consistent with section 209(a). 

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

To be consistent with section 

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

California’s commercial harbor craft 

regulations must not affect new farming 

or construction vehicles or engines that 

are below 175 horsepower, or new 

locomotives or their engines. CARB 

presents that commercial harbor craft 

engines are not used in locomotives and 

are not primarily used in farm and 

construction equipment vehicles. No 

commenter presented otherwise; 

therefore, EPA cannot deny California’s 

request on the basis that California’s 

commercial harbor craft requirements 

are not consistent with section 209(e)(1). 

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

The requirement that California’s 

standards be consistent with section 

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

effectively requires consistency with 

section 202(a) of the Act. California 

standards are inconsistent with section 

202(a) of the Act if there is inadequate 

lead-time to permit the development of 

technology necessary to meet those 

requirements, giving appropriate 

consideration to the cost of compliance 

within that time. California’s 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if the federal and California test 

procedures were not consistent. The 

scope of EPA’s review of whether 

California’s action is consistent with 

section 202(a) is narrow. The 

determination is limited to whether 

those opposed to the authorization or 

waiver have met their burden of 

establishing that California’s standards 

are technologically infeasible, or that 

California’s test procedures impose 

requirements inconsistent with the 

federal test procedure.34

a. Technological Feasibility 

Congress has stated that the 

consistency requirement of section 

202(a) relates to technological 

feasibility.35 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.36 For 

example, a previous EPA waiver 

decision considered California’s 

standards and enforcement procedures 

to be consistent with section 202(a) 

because adequate technology existed as 

well as adequate lead-time to implement 

that technology.37 Subsequently, 

Congress has stated that, generally, 

EPA’s construction of the waiver 

provision has been consistent with 

congressional intent.38

CARB presents that the technological 

feasibility of most of the commercial 

harbor craft requirements are ‘‘clearly 

technologically feasible’’ because they 

mirror requirements that EPA has 

already adopted and determined were 

technologically feasible after 

considering cost of compliance when 

setting its Tier 2, 3, and 4 emission 

standards.39 Such is the case for the new 

vessel engine requirements, for which 

compliance is based on meeting 

applicable federal Tier 2, 3, or 4 

emission standards. Larger new ferry 

propulsion engines must similarly meet 

applicable federal standards, with those 

that meet Tier 2 or 3 federal standards 

also required to be equipped with 

BACT. CARB states that the BACT 

requirement is technologically feasible 

because a BACT determination is made 

on a case-by-case assessment of 

technological availability for each 

specific ferry application. If no BACT is 

available for a specific ferry application, 

compliance with federal Tier 2 or 3 

standards is all that is required. This 

aspect of California’s commercial harbor 

craft regulations is the only aspect 

which does not rely upon compliance 

with a federal standard; for this aspect, 

CARB contends that the cost of 

compliance on ferry owners and 

operators will largely be passed along to 

customers without significant economic 

disruption. CARB’s in-use requirements 

also rely on compliance with federal 

emission standards and includes four 

compliance options: (1) Engine 

replacement with new federal Tier 2 or 

3 compliant engines, (2) demonstrating 

compliance with federal Tier 2 or 3 

standards (e.g., rebuilding), (3) 

demonstrating that a vessel will not 

operate more than three hundred hours 

in a compliance year, and (4) flexibility 

through exemptions and compliance 

extensions. 

EPA did not receive any comments 

suggesting that California’s commercial 

harbor craft regulations are 

technologically infeasible. EPA did 

receive comments—from AWO and KSea—suggesting that CARB did not 

adequately address the cost of 

compliance within the lead-time 

provided. 

AWO asserts that California’s 

commercial harbor craft regulations are 

inconsistent with section 202(a) because 

there has been inadequate lead-time to 

permit the development and widespread 

commercial availability of the 

technology necessary to comply, and 

CARB has not given appropriate 

consideration to the cost of compliance 

within the lead-time provided. AWO 

further asserts that approximately fourfifths of the towing vessel fleet is 

equipped with pre-Tier 1 or Tier 1 

certified engines, and current 

regulations only require use of an EPAapproved kit, if available; California’s 

commercial harbor craft regulations, on 

the other hand, will require these 

vessels to rebuild with a Tier 2 kit or 

completely repower. AWO also asserts 

that CARB does not address the cost of 

a retrofit versus the cost of replacement; 

this, AWO believes, is a failure to 

provide adequate lead-time, ‘‘with 

appropriate consideration to the cost of 

compliance.’’ AWO emphasizes that its 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 77527 

40CARB, ‘‘Final Statement of Reasons for 

Rulemaking,’’ EPA–HQ–OAR–2011–0549–0032, pp. 

57–67. 

41EPA, Authorization of In-Use Emission 

Standards for Transport Refrigeration Unit 

Engines,’’ January 9, 2009, at 63. 42See, e.g., 43 FR 32182 (July 25, 1978). 

members cannot afford these costs, 

particularly because ninety percent of 

the towing industry is comprised of 

small businesses. Additionally, AWO 

stresses that these cost concerns (e.g., 

vessel downtime required during 

drydocks, the residual value of engine 

replacement, cost of installation and 

maintenance, equipment and shipyard 

availability) were not given full 

consideration by CARB. AWO believes 

that many towing companies may be 

forced to cease operations in California. 

Furthermore, even though California 

provides funding options, AWO asserts 

that such funding is largely unavailable 

for AWO members because they do not 

primarily operate within California. 

AWO believes that the cost increases 

associated with the commercial harbor 

craft regulation will drive up the cost of 

waterways transportation. 

K-Sea also believes that CARB did not 

adequately assess the financial impacts 

and cost of compliance. K-Sea 

emphasizes that out of its 18 tugs, they 

would need to replace 13. K-Sea informs 

EPA that they cannot afford this, and 

will be forced to either make a radical 

capital investment to comply, or cease 

operating in California. K-Sea represents 

that they cannot obtain CARB funding 

because it does not operate primarily in 

California. K-Sea also states that they 

could relocate compliant vessels to 

California, which would merely shift 

pollution out of state. K-Sea believes 

this renders the ‘‘necessity of the 

regulation to be ‘arbitrary and 

capricious’ * * *’’ 

EPA’s review with regard to cost of 

compliance occurs within the context of 

its review of whether California’s 

commercial harbor craft regulations are 

consistent with section 202(a) of the 

Clean Air Act. As described above, 

EPA’s review here is narrow. That is, 

section 202(a) consistency calls for a 

limited review of technological 

feasibility, including analysis of the cost 

of new technology, if technology does 

not currently exist. Section 202(a) does 

not allow EPA to conduct a more 

searching review of whether the costs 

are outweighed by the overall benefits of 

the California regulations. In this case, 

no party has objected to CARB’s 

demonstration that technologies are in 

existence and are being used in actual 

operation; AWO and K-Sea only 

challenge the cost of compliance. EPA’s 

traditional review of costs considers 

whether the cost of compliance per 

engine would render the regulation cost 

prohibitive and thus infeasible. Here, 

CARB understands that there are 

significant costs associated with 

compliance, but it expects those costs to 

eventually be passed on to the 

consumer, without significant impact on 

the industry. AWO and K-Sea, on the 

other hand, present that compliance 

with the commercial harbor craft 

regulations would impose unreasonable 

costs that could lead operators to cease 

operations in California. AWO and KSea did not further express that the 

costs associated with compliance would 

render compliance entirely infeasible. 

Notably, CARB responded to similar if 

not identical concerns from industry— 

including comments from AWO— 

during the California rulemaking.40 In 

response to comments with respect to 

the significant costs of compliance and 

impact on the industry, CARB stood by 

its rulemaking findings. CARB 

addressed the many points AWO and KSea now raise in this proceeding. 

Specifically, CARB stated, among other 

things, that it does not believe the 

commercial harbor craft regulation will 

have significant economic impacts; that 

the potential impacts on affected 

tugboat and towboat businesses will, on 

average, decrease a business’s return on 

investment by 3.6 and 0.5 percent, 

respectively; that engine replacement is 

the most expensive compliance option, 

but there may be other less costly 

options, including rebuilding, 

employing emission control 

technologies, applying for approval of 

alternative control of emissions plan, or 

applying for compliance extensions; 

that tugboats will be able to pass on the 

added compliance costs to their 

customers; that the regulation will not 

result in job losses or significant impact 

on tugboat businesses because they 

provide a necessary service that will 

continue to be in high demand; and that 

CARB has given six years of lead-time 

for businesses to plan for compliance in 

which they may apply for incentive 

funds or choose other less costly 

compliance options. In previous waiver 

and authorization determinations, EPA 

has consistently given California 

substantial deference on its policy 

judgments, including those related to 

the costs associated with compliance. 

For example, in a previous 

authorization determination where cost 

of compliance was an issue, EPA stated: 

‘‘CARB’s regulations are feasible with 

respect to cost objectively; i.e., all fleet 

operators face the same cost per unit to 

comply. While this cost may have 

different impacts on fleets of varying 

sizes, EPA recognizes that it is up to 

CARB to choose who it will regulate 

under its standards.’’ 41 Similarly here, 

EPA is in no position to second-guess 

CARB’s regulatory choices. Because the 

cost of compliance is not so burdensome 

to render compliance options out of 

reach, the fact that some operators may 

have difficulties with the cost of 

compliance does not render the program 

infeasible. 

Therefore, based on the record before 

us, EPA finds that opponents of the 

authorization have not met their burden 

of proof. Consequently, EPA cannot 

deny California’s authorization based on 

technological infeasibility. 

b. Consistency of Certification 

Procedures 

California’s standards and 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if the California test procedures 

were to impose certification 

requirements inconsistent with the 

federal certification requirements. Such 

inconsistency means that manufacturers 

would be unable to meet both the 

California and federal testing 

requirements using the same test vehicle 

or engine.42

CARB presents that none of the 

commercial harbor craft requirements 

pose any inconsistency as between 

California and federal test procedures. 

CARB asserts that the compliance 

methods for new vessel engines are 

EPA’s Tier 2, 3, or 4 federal marine 

engine test procedures. For larger new 

ferries, CARB also relies on federal 

marine engine test procedures, and 

asserts that the added BACT 

requirement is not inconsistent with 

federal procedures because EPA has no 

comparable requirement. The 

regulation’s in-use requirements also 

rely on federal marine engine test 

procedures. CARB further presents that 

the in-use requirements are not 

inconsistent with federal requirements 

because EPA does not have any 

comparable in-use standards and test 

procedures. 

EPA received no comments suggesting 

that CARB’s commercial harbor craft 

requirements pose a test procedure 

consistency problem. Therefore, based 

on the record, EPA cannot find that 

CARB’s testing procedures are 

inconsistent with section 202(a). 

Consequently, EPA cannot deny CARB’s 

request based on this criterion. 

D. Other Issues 

AWO requests that the compliance 

dates for the affected vessels be reset 


srobinson on DSK4SPTVN1PROD with NOTICES
77528 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Notices 

43See, e.g., 74 FR 32744, 32783 (July 8, 2009). 

44See Motor and Equipment Manufacturers Ass’n 

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

1998), Motor and Equipment Manufacturers Ass’n 

v. EPA, 627 F.2d 1095, 1111, 1114–20 (DC Cir. 

1979). 

45AWO and K-Sea may raise these issues in a 

direct challenge to California’s regulations in other 

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

limited review under section 209. 

according to the date that EPA approves 

California’s authorization request to 

facilitate compliance. AWO also 

expressed concerns about inconsistent 

regulation for vessels engaged in 

interstate commerce. K-Sea echoed a 

similar concern, stating that the 

regulations will shift the burden of 

dealing with emissions to other states 

because companies may choose to 

relocate a non-CARB compliant engine 

to operations elsewhere. With respect to 

AWO’s request for a delayed 

compliance schedule, EPA cannot 

change an aspect of California’s 

regulation. EPA is only authorized to 

review California’s standards to 

determine compliance with section 209. 

It is not authorized to change 

California’s regulations. With respect to 

the AWO and K-Sea comments 

regarding the interstate implications of 

California’s commercial harbor craft 

regulations, that issue is also beyond the 

scope of EPA’s review under the three 

section 209(e)(2) criteria. As EPA has 

stated on numerous occasions, sections 

209(b) and 209(e) of the Clean Air Act 

limit our authority to deny California 

requests for waivers and authorizations 

to the three criteria listed therein. As a 

result, EPA has consistently refrained 

from denying California’s requests for 

waivers and authorizations based on 

any other criteria.43 In instances where 

the U.S. Court of Appeals has reviewed 

EPA decisions declining to deny waiver 

requests based on criteria not found in 

section 209(b), the Court has upheld and 

agreed with EPA’s determination.44

Neither of these other issues AWO and 

K-Sea raises is among—or fits within the 

confines of—the criteria listed under 

section 209(e).45 It is clear that Congress 

intended that California have the ability 

to promulgate standards that are more 

stringent than those that would 

otherwise apply to mobile sources 

under federal regulations. Indeed, other 

states could also promulgate such 

standards if they are identical to 

California’s. Therefore, in considering 

California’s commercial harbor craft 

regulations, EPA may not deny 

authorization based on these issues. 

E. Authorization Determination for 

California’s Commercial Harbor Craft 

Regulations 

After a review of the information 

submitted by CARB and other parties to 

this proceeding, EPA finds that those 

opposing California’s request have not 

met the burden of demonstrating that an 

authorization for California’s 

commercial harbor craft regulations 

should be denied based on any of the 

three statutory criteria of section 

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

an authorization for California’s 

commercial harbor craft regulations 

should be granted. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(b) waivers of preemption and 

section 209(e) authorizations to the 

Assistant Administrator for Air and 

Radiation. After evaluating California’s 

commercial harbor craft regulations, 

CARB’s submissions, and the public 

comments from AWO and K-Sea, EPA is 

granting an authorization to California 

for its commercial harbor craft 

regulations. 

My decision will affect not only 

persons in California, but also entities 

outside the State who must comply with 

California’s requirements. For this 

reason, I determine and find that this is 

a final action of national applicability 

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

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

Act, judicial review of this final action 

may be sought only in the United States 

Court of Appeals for the District of 

Columbia Circuit. Petitions for review 

must be filed by February 13, 2012. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

section 307(b)(2) of the Act. 

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

Act, 5 U.S.C. 801, et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

rule for purposes of 5 U.S.C. 804(3). 

Dated: December 5, 2011. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2011–31916 Filed 12–12–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9505–6] 

Proposed CERCLA Administrative 

Cost Recovery Settlement; North 

Hollywood Operable Unit of the San 

Fernando Valley Area 1 Superfund Site 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice; request for public 

comment. 

SUMMARY: In accordance with Section 

122(i) of the Comprehensive 

Environmental Response, 

Compensation, and Liability Act, as 

amended (‘‘CERCLA’’), 42 U.S.C. 

9622(i), notice is hereby given of a 

proposed administrative settlement for 

recovery of response costs concerning 

the North Hollywood Operable Unit of 

the San Fernando Valley Area 1 

Superfund Site, located in the vicinity 

of Los Angeles, California, with the 

following settling parties: Pick-YourPart Auto Wrecking; Hayward 

Associates, LLC; and PNM Properties, 

LLC. The settlement requires the settling 

parties to pay a total of $102,161 to the 

North Hollywood Operable Unit Special 

Account within the Hazardous 

Substance Superfund. The settlement 

also includes a covenant not to sue the 

settling parties pursuant to Section 

107(a) of CERCLA, 42 U.S.C. 9607(a). 

For thirty (30) days following the date 

of publication of this notice, the Agency 

will receive written comments relating 

to the settlement. The Agency will 

consider all comments received and 

may modify or withdraw its consent to 

the settlement if comments received 

disclose facts or considerations which 

indicate that the settlement is 

inappropriate, improper, or inadequate. 

The Agency’s response to any comments 

received will be available for public 

inspection at the City of Los Angeles 

Central Library, Science and 

Technology Department, 630 West 5th 

Street, Los Angeles, CA 90071 and at the 

EPA Region 9 Superfund Records 

Center, Mail Stop SFD–7C, 95 

Hawthorne Street, Room 403, San 

Francisco, CA 94105. 


srobinson on DSK4SPTVN1PROD with NOTICES