Federal Register / Vol. 81, No. 47 / Thursday, March 10, 2016 / Proposed Rules 12637 

1The Clean Air Act refers to these engines as 

‘‘nonroad’’ engines and the State of California uses 

the term ‘‘off-road’’ engines. The terms ‘‘nonroad’’ 

and ‘‘off-road’’ are used interchangeably in this 

rule. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2014–0642; FRL–9943–42– 

Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Mexico; and Albuquerque/Bernalillo 

County; Revisions To Establish Small 

Business Stationary Source Technical 

and Environmental Compliance 

Assistance Programs 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the New Mexico State 

Implementation Plan (SIP) for both the 

State and Albuquerque/Bernalillo 

County. These proposed revisions 

establish Small Business Stationary 

Assistance Source Technical and 

Environmental Compliance Assistance 

Programs. The EPA is proposing to 

approve these revisions pursuant to 

sections 110 and 507(a) of the Clean Air 

Act (CAA). 

DATES: Written comments should be 

received on or before April 11, 2016. 

ADDRESSES: Comments may be 

submitted by following the detailed 

instructions in the ADDRESSES section of 

the direct final rule located in the rules 

section of this Federal Register. 

FOR FURTHER INFORMATION CONTACT: Mr. 

John Walser, (214) 665–7128, 

walser.john@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Rules and Regulations section of this 

Federal Register, the EPA is approving 

the State’s SIP submittal as a direct rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no relevant adverse comments 

are received in response to this action, 

no further activity is contemplated. If 

the EPA receives relevant adverse 

comments, the direct final rule will be 

withdrawn and all public comments 

received will be addressed in a 

subsequent final rule based on this 

proposed rule. The EPA will not 

institute a second comment period. Any 

parties interested in commenting on this 

action should do so at this time. 

For additional information, see the 

direct final rule which is located in the 

Rules and Regulations section of this 

Federal Register. 

Dated: February 24, 2016. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2016–05161 Filed 3–9–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2015–0819; FRL–9943–47– 

Region 9] 

Revisions to the California State 

Implementation Plan; South Coast Air 

Quality Management District; Control 

of Oxides of Nitrogen Emissions From 

Off-Road Diesel Vehicles 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

South Coast Air Quality Management 

District’s (SCAQMD or District) Rule 

2449, Control of Oxides of Nitrogen 

Emissions from Off-Road Diesel 

Vehicles, which adopts by reference 

title 13, chapter 9, section 2449.2 of the 

California Code of Regulations (CCR), 

‘‘Surplus Off-Road Opt-In for NOX

(SOON) Program,’’ as part of the 

SCAQMD portion of the California State 

Implementation Plan (SIP). SCAQMD 

Rule 2449 requires certain in-use offroad vehicle fleets to meet more 

stringent requirements in the South 

Coast area when funding is provided by 

the District in order to achieve 

additional reductions of oxides of 

Nitrogen (NOX). We are taking 

comments on this proposal and plan to 

follow with a final action. 

DATES: Any comments must arrive by 

April 11, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2015–0819 at http://

www.regulations.gov, or via email to 

lo.doris@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, the EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Doris Lo, EPA Region IX, (415) 972– 

3959, lo.doris@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Background 

II. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of the rule? 

C. What is the purpose of the submitted 

rule? 

D. What do the Off-Road Regulation and 

Rule 2449 require? 

III. The EPA’s Evaluation of the State’s 

Submittal 

A. How is the EPA evaluating the rule? 

B. Does Rule 2449 meet CAA SIP 

evaluation criteria? 

1. Did the SCAQMD and CARB provide 

adequate public notice and comment 

periods? 

2. Do the SCAQMD and CARB have 

adequate legal authority to implement 

the rule? 

3. Is the rule enforceable as required under 

CAA section 110(a)(2)? 

4. Does the rule interfere with reasonable 

further progress and attainment or any 

other applicable requirement of the Act? 

5. Will the State and the SCAQMD have 

adequate personnel and funding for the 

rule? 

6. Does the rule meet the RACM and 

BACM requirements under CAA sections 

172(c)(1) and 189? 

7. The EPA’s Rule Evaluation Conclusion 

IV. Proposed Action and Public Comment 

V. Incorporation by Reference 

VI. Statutory and Executive Order Reviews 

I. Background 

The California Air Resources Board’s 

(CARB) Off-Road Diesel-Fueled Fleets 

Regulation (13 CCR sections 2449, 

2449.1 and 2449.2) applies to fleets with 

nonroad 1 compression-ignition vehicles 

and equipment greater than 25 

horsepower (hp). Sections 2449 and 

2449.1 (collectively the ‘‘Off-Road 

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2Unless otherwise indicated, references in this 

notice to Rule 2449 include the CARB Soon 

Program, as implemented through Rule 2449. 

3 In particular, the EPA proposed to approve 13 

CCR sections 2449 (excluding subsection 

2449(d)(2)), 2449.1, and 2449.2 into the SIP. 80 FR 

69918, Table 1. 

4The EPA generally takes action on a RACM or 

BACM demonstration as part of our action on the 

State’s attainment demonstration for the relevant 

NAAQS. 

5See, e.g., Draft Staff Report, Proposed Amended 

Rule 2449—Control of Oxides of Nitrogen 

Emissions from Off-Road Diesel Vehicles, page 1 

(May 2014). 

6See 2012 AQMP, Table 4–6, page 4–33, OFFRD– 

01, Extension of the SOON Provision for 

Construction/Industrial Equipment [NOX] and 

Appendix IV–B, pages IV–B–30 thru IV–B–32. 

7 Id. The EPA is not proposing to approve the 

emission reductions in today’s proposed rule. 

Emission reductions or SIP credit from Rule 2449 

will be addressed in future EPA actions on 

attainment plans. 

Regulation’’) require fleet operators to 

meet a progressively more stringent 

combined particulate matter (PM) and 

NOX standard, or to reduce emissions 

through technology upgrades such as 

retrofit or replacement. The Off-Road 

Regulation was initially approved by 

CARB on July 26, 2007 and was 

subsequently amended in December 

2010. 

In conjunction with the Off-Road 

Regulation, CARB also adopted an ‘‘optin’’ provision that allows local air 

districts to achieve additional 

reductions of NOX emissions by 

introducing cleaner engines or control 

devices into a fleet with incentive 

funding (see 13 CCR section 2449.2, 

Surplus Off-Road Opt-In for NOX

Program (also referred to as the ‘‘CARB 

SOON Program’’ in today’s proposed 

rule)). Under this provision, any 

California air district can ‘‘opt-in’’ to the 

CARB SOON Program to achieve 

reductions of NOX emissions from inuse nonroad diesel-fueled vehicles that 

are surplus to what is required by 

CARB’s Off-Road Regulation. In order to 

participate in the CARB SOON Program, 

a district’s governing board must hold a 

public hearing, vote to ‘‘opt-in’’ to the 

CARB SOON Program, and decide 

whether to make the program voluntary 

or mandatory. 

On May 2, 2008 the SCAQMD 

governing board held a public hearing at 

which it voted to ‘‘opt-in’’ to the CARB 

SOON Program as a mandatory 

requirement and adopted Rule 2449, 

Control of Oxides of Nitrogen Emissions 

from Off-Road Diesel Vehicles, which 

includes by reference the CARB SOON 

Program. The SCAQMD also adopted 

additional Rule 2449 Administrative 

Guidelines (May 2008) as required by 

the CARB SOON Program to implement 

the program in the South Coast area. On 

July 11, 2014, the SCAQMD amended 

Rule 2449 to update the rule’s reference 

to the CARB SOON Program, which was 

amended by CARB in December 2011. 

The SCAQMD Rule 2449 adopts the 

provisions of the CARB SOON Program 

found under 13 CCR, section 2449.2 into 

the SCAQMD’s rule book and makes the 

CARB SOON Program a mandatory 

requirement for in-use off-road sources 

located in the South Coast area.2

CARB’s Off-Road Regulation and the 

CARB SOON Program are subject to 

section 209(e) of the Clean Air Act (CAA 

or the Act), which generally preempts 

States from adopting and enforcing 

standards and other requirements 

relating to the control of emissions from 

nonroad engines (see CAA section 

209(e)(1) and Engine Mfrs. Ass’n v. EPA, 

88 F.3d 1075 (D.C. Cir. 1996)). However, 

CAA section 209(e)(2)(A) requires the 

EPA to authorize California to adopt and 

enforce standards and other 

requirements relating to the control of 

emissions from certain nonroad vehicles 

or engines, unless the EPA makes one of 

three enumerated findings. On 

September 20, 2013 the EPA authorized 

CARB to enforce the Off-Road 

Regulation and the CARB SOON 

Program (collectively ‘‘Fleet 

Requirements’’) (see 78 FR 58090– 

58121, September 20, 2013). 

On November 12, 2015, the EPA 

proposed to approve the Fleet 

Requirements into the California SIP 

(see 80 FR 69915).3

II. The State’s Submittal 

A. What rule did the State submit? 

On July 18, 2008, the State of 

California submitted SCAQMD Rule 

2449, ‘‘Control of Oxides of Nitrogen 

Emissions from Off-Road Vehicles,’’ 

which was adopted by the District on 

May 2, 2008 (see July 18, 2008 letter 

from Michael H. Scheible, Deputy 

Executive Officer, CARB, to Wayne 

Nastri, Regional Administrator, EPA 

Region 9, with attachments). 

On September 5, 2014, the state 

submitted a revision to Rule 2449 

adopted by the District on July 11, 2014. 

The submittal made a minor 

administrative revision to the 

numbering of the referenced CARB 

SOON Program, which was revised by 

CARB in December 2011, from section 

2449.3 to section 2449.2 (see September 

5, 2014 letter to Jared Blumenfeld, 

Regional Administrator, EPA Region 9, 

from Richard W. Corey, Executive 

Officer, Air Resources Board with 

attachments). 

The July 18, 2008 submittal was 

deemed complete by operation of law 

under CAA section 110(k)(1)(B) on 

January 18, 2009. The September 5, 

2014 submittal was deemed complete by 

operation of law under CAA section 

110(k)(1)(B) on March 5, 2015. 

B. Are there other versions of the rule? 

There are no previous versions of 

Rule 2449 in the SIP for the SCAQMD. 

C. What is the purpose of the submitted 

rule? 

NOX helps produce ground-level 

ozone, smog and fine particulate matter 

(PM2.5), which harm human health and 

the environment. Section 110(a) of the 

CAA requires States to submit 

regulations that control NOX emissions. 

In addition, section 172(c)(1) of the Act 

requires implementation of all 

reasonably available control measures 

(RACM) as expeditiously as practicable 

in nonattainment areas. Because the 

South Coast area is designated 

nonattainment for the 1-hour ozone 

standard, the 1997 annual and 24-hour 

PM2.5 standard, the 2006 24-hour PM2.5

standard, the 2012 annual PM2.5

standard, the 1997 8-hour ozone 

standard and the 2008 8-hour ozone 

standard (see 40 CFR part 81.305), 

CARB and the SCAQMD must 

implement RACM for NOX (among other 

pollutants) under CAA section 172(c)(1). 

In addition, under subpart 4 of the CAA, 

serious PM2.5 areas are required to adopt 

best available control measures (BACM) 

for PM2.5 and its precursors.4 On 

January 13, 2016, the EPA reclassified 

the South Coast PM2.5 nonattainment 

area as a Serious nonattainment area for 

the 2006 PM2.5 NAAQS (81 FR 1514). 

Off-road diesel vehicles collectively 

represent one of the largest sources of 

NOX emissions in the South Coast Air 

Basin.5 The purpose of Rule 2449 is to 

achieve surplus NOX reductions from 

this source category beyond those 

required under CARB’s Off-Road 

Regulation with funding provided by 

the SCAQMD. The SCAQMD’s 2012 Air 

Quality Management Plan (AQMP) 

relies on NOX reductions from Rule 

2449 to attain the one-hour and 1997 

eight-hour ozone NAAQS.6 Rule 2449 is 

expected to achieve 7.5 tons per day 

(tpd) of NOX reductions in 2023.7

D. What do the Off-Road Regulation and 

Rule 2449 require? 

In general, CARB’s Off-Road 

Regulation applies to all diesel-fueled 

off-road fleet equipment owners 

operating in the State of California. The 

Off-Road Regulation has performance 

requirements depending on the size of 

the fleet (i.e., a large fleet is defined as 

a fleet having greater than 5,000 

horsepower (hp), a small fleet has less 

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8See CARB’s Off-Road Regulation, section 

2449(c)(24), definition of ‘‘Fleet size category.’’ 9See CARB’s Off-Road Regulation, section 

2449.1(a) Fleet Average Requirements, 2449.1(b) 

BACT Requirements, and Appendix A with table of 

‘‘Emission Factors by Horsepower and Year (g/bhphr).’’ 10Most provisions of the CARB SOON Program 

apply to fleets rather than fleet owners or operators 

(see e.g. sections 2449.2(b)(2) and (d)(1)). However, 

SCAQMD Rule 2449 makes these requirements 

applicable to the owners of off-road vehicles that 

operate in SCAQMD and meet the criteria in 13 

CCR 2449.2(b)(2). 

11See 13 CCR section 2449(c)(48) and (49) for 

definitions of Tier 0 and Tier 1 engines. 

12See 13 CCR section 2449.2(b)(2), adopted by 

reference under SCAQMD Rule 2449. 

13See 13 CCR section 2449.2(d). Thus, for 

example, the Off-Road Regulation requires ‘‘large’’ 

fleets to meet a fleet average target of 1.5 g/bhp-hr 

for 175–750 hp engines and 3.4 g/bhp-hr for greater 

than 750 hp engines in the year 2023, whereas Rule 

2449 and the CARB SOON Program require a fleet 

average target of 0.7 g/bhp-hr for 175–750 hp 

engines and 2.7 g/bhp-hr for greater than 750 hp 

engines in 2023. 

14The Carl Moyer Program funds are used to fund 

Rule 2449 with the requirement that all projects 

meet, at a minimum, the Carl Moyer Program’s 

latest requirements and guidelines (e.g., project 

selection criteria, co-funding requirements, and 

reporting and monitoring requirements). For more 

information on the Carl Moyer Program, see http:// 

www.arb.ca.gov/msprog/moyer/moyer.htm. 

15 In addition to the Carl Moyer Program 

guidelines, the CARB SOON Program requires the 

District to adopt District guidelines, through a 

public process, that include additional 

administrative provisions necessary to implement 

the CARB SOON Program. These provisions 

include, but are not limited to, funding guidelines, 

compliance planning requirements and reporting 

and monitoring requirements. The SCAQMD 

adopted these additional district guidelines on May 

22, 2008 (see Draft Administrative Guidelines, 

Proposed Rule 2449 Administrative Guidelines, 

SCAQMD, May 2008). The SCAQMD Board plans 

to consider amendments to the May 2008 

Administrative Guidelines on March 4, 2016 (see 

DRAFT Technology Committee Agenda #1, 

prepared for BOARD MEETING DATE: March 4, 

2016, with Attachment 4, SOON Provision 

Implementation Guidelines). The amendments 

include referencing the correct section of CARB’s 

Off-Road Regulation and aligning funding levels for 

the SCAQMD SOON Program with the Carl Moyer 

program. If approved by the SCAQMD Board, the 

EPA expects the SCAQMD to forward the 

amendments to CARB for approval. 

16Surplus reductions are those NOX reductions 

that are not needed for meeting the requirements of 

the Off-Road Regulation. If surplus reductions are 

available and used to meet the requirements of Rule 

2449 and the CARB SOON Program, then those 

reductions cannot be used to meet the requirements 

of the Off-Road Regulation until they are no longer 

needed for compliance with Rule 2449. 

than or equal to 2,500 hp, and a medium 

fleet is in between) 8 and provides 

calculation methodologies for 

determining a fleet average index and a 

fleet average target rate. Each year, each 

subject fleet must demonstrate that its 

fleet average index was less than or 

equal to the applicable fleet average 

target rate or that it met Best Available 

Control Technology (BACT) 

requirements by performing turnover or 

installing verified diesel emission 

control strategies (VDECS).9 As 

discussed above, the EPA has 

authorized CARB to implement the OffRoad Regulation under CAA section 

209(e) (78 FR 58090) and has proposed 

to approve the Off-Road Regulation into 

the California SIP (80 FR 69915). 

SCAQMD Rule 2449 focuses on the 

largest fleets with the oldest engines and 

requires these fleets to meet more 

stringent fleet average targets than those 

required by section 2449.1(a) of the OffRoad Regulation. In general, Rule 2449 

applies to the owners 10 of off-road 

vehicles that operate within the 

SCAQMD and that are part of fleets with 

more than 40 percent Tier 0 and Tier 1 

vehicles 11 (as of January 1, 2008) and 

with more than 20,000 horsepower (hp) 

in maximum power on a statewide basis 

(excluding the hp from engines in twoengine vehicles and the hp from single 

cranes formerly subject to the Cargo 

Handling Equipment Regulation).12

Once the District issues a solicitation 

for applications for funding under Rule 

2449, subject fleet owners are required 

to meet the more stringent fleet average 

targets required by the CARB SOON 

Program or apply for incentive funding 

for a sufficient number of projects (e.g., 

repowers, purchases, replacements) to 

meet the CARB SOON Program fleet 

average targets (reproduced in Table 1 

below).13

TABLE 1—SOON TARGET FOR EACH MAX HP GROUP FOR USE IN CALCULATING SOON FLEET AVERAGE TARGET RATES

[g/bhp-hr] 

Compliance date: Jan 1 of 

year 25–49 hp 50–74 hp 75–99 hp 100–174 hp 175–299 hp 300–599 hp 600–750 hp >750 hp 

2011 ................................. 5.6 6.2 6.7 6.0 5.4 5.1 5.3 6.4 

2014 ................................. 5.8 6.5 7.1 6.4 3.9 3.7 3.7 5.3 

2017 ................................. 5.0 5.4 5.5 4.9 2.2 2.2 2.2 4.3 

2020 ................................. 4.1 4.2 3.4 3.1 1.4 1.3 1.4 3.4 

2023 ................................. 3.3 3.0 1.4 1.3 0.7 0.7 0.7 2.7 

Source: Reproduction of Table 5 of section 2449.2(d) of CARB SOON Program. These fleet average target rates are more stringent than what 

is required under the Off-Road Regulation (see 13 CCR section 2449.1(a)(1), Table 3). 

Specifically, subject fleet owners are 

required to submit a report with 

information on, including but not 

limited to, the fleet owner, vehicle types 

and uses of each vehicle, engines used 

to power the vehicles and the type and 

use of each engine, and VDECS installed 

on engines. 13 CCR section 

2449.2(d)(1)(A)). Fleets must calculate 

their fleet average index based on the 

equipment they have and compare it to 

the fleet average target rate based on the 

SOON target rates shown in Table 1 

above (13 CCR section 2449.2(d)(1)(B) 

and (C)), and if their fleet average index 

is greater than the SOON fleet average 

target rate, they are required to apply for 

funding (13 CCR section 

2449.2(d)(1)(D)). Fleets must apply for 

funding in accordance with the Carl 

Moyer Memorial Air Quality Standards 

Attainment Program (Carl Moyer 

Program) 14 policies and procedures and 

also with the Administrative 

Guidelines 15 adopted by the SCAQMD, 

which provide further clarification on 

what to include in the funding 

applications and compliance plans. 

Funding applications and compliance 

plans must together demonstrate that 

equipment identified for the CARB 

SOON Program funding will result in 

surplus 16 reductions in order to qualify 

for incentive funding. Once a fleet 

receives funding for a qualified project, 

the fleet is required to implement the 

project. The SCAQMD has approved 

significant funding for the 

implementation of Rule 2449. The 2012 

AQMP states that the District Governing 

Board has allocated up to $30 million 

per year for the program and extended 

the SOON Program to 2023 (see Final 

2012 AQMP: Appendix IV–B, p. IV–B– 

31). For ‘‘FY 2015–2016,’’ or ‘‘Year 18’’ 

of the Carl Moyer Memorial Air Quality 

Standards Attainment Program, the 

SCAQMD expects that approximately $5 

million of funding will be available for 

the SCAQMD SOON Program (see 

DRAFT Technology Committee Agenda 

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17CAA section 193, which prohibits any pre-1990 

SIP control requirement relating to nonattainment 

pollutants in nonattainment areas from being 

modified unless the SIP is revised to insure 

equivalent or greater emission reductions of such 

air pollutants, does not apply to this rule because 

it does not include any pre-1990 SIP control 

requirements. 

18These concepts are discussed in detail in an 

EPA memorandum from J. Craig Potter, EPA 

Assistant Administrator for Air and Radiation, et 

al., titled ‘‘Review of State Implementation Plans 

and Revisions for Enforceability and Legal 

Sufficiency,’’ dated September 23, 1987. 

#1, prepared for BOARD MEETING 

DATE: March 4, 2016, page 3). 

III. The EPA’s Evaluation of the State’s 

Submittal 

A. How is the EPA evaluating the rule? 

The EPA has evaluated Rule 2449 

against the applicable procedural and 

substantive CAA requirements for SIPs 

and SIP revisions and has concluded 

that it meets all of the applicable 

requirements. 

Generally, SIPs must include 

enforceable emission limitations and 

other control measures, means, or 

techniques, as well as schedules and 

timetables for compliance, as may be 

necessary to meet the requirements of 

the Act (see CAA section 110(a)(2)(A)); 

must provide necessary assurances that 

the State will have adequate personnel, 

funding, and authority under State law 

to carry out such SIP (and is not 

prohibited by any provision of Federal 

to State law from carrying out such SIP) 

(see CAA section 110(a)(2)(E)); must be 

adopted by a State after reasonable 

notice and public hearing (see CAA 

section 110(l)), and must not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress, or any other applicable 

requirement of the Act (see CAA section 

110(l)).17

In addition, as noted above, CARB 

and the SCAQMD must implement 

RACM for NOX (among other pollutants) 

under CAA section 172(c)(1). 

B. Does Rule 2449 meet CAA SIP 

evaluation criteria? 

1. Did the SCAQMD and CARB provide 

adequate public notice and comment 

periods? 

Under CAA section 110(l), SIP 

revisions must be adopted by the State, 

and the State must provide for 

reasonable public notice and hearing 

prior to adoption. In 40 CFR 51.102(d), 

we specify that reasonable public notice 

in this context refers to at least 30 days. 

The State has submitted evidence of 

public notice and hearing prior to the 

May 5, 2008 adoption and July 11, 2014 

amendment of Rule 2449 by the 

SCAQMD (see attachments to July 18, 

2008 letter to Mr. Wayne Nastri, EPA 

Region 9 from Michael H. Scheible, Air 

Resource Board and attachments to 

September 5, 2014 letter to Mr. Jared 

Blumenfeld, EPA Region 9, from 

Richard W. Corey, Air Resources Board). 

Based on the evidence provided by the 

SCAQMD and CARB, we conclude that 

they have provided adequate public 

notice and comment periods. 

2. Do the SCAQMD and CARB have 

adequate legal authority to implement 

the rule? 

California air districts are authorized 

to adopt and enforce rules by California 

Health and Safety Code (H&SC) section 

40001. CARB is authorized to adopt the 

rules as revisions to the SIP by H&SC 

section 39601, 39602, and 41650 

through 41652 (see CARB Executive 

Order S–14–012). 

In addition, we note that California 

H&SC sections 43013(a) and 43018 

provide CARB with broad authority to 

achieve the maximum feasible and costeffective emission reductions from all 

mobile source categories, including both 

on-road and off-road diesel engines. 

As discussed above, CARB’s Off-Road 

Regulation is subject to CAA section 

209(e), and on September 20, 2013 the 

EPA granted CARB’s request for 

authorization to enforce its Fleet 

Requirements, including the CARB 

SOON Program (see 78 FR 58090– 

58121, September 20, 2013). Thus, we 

find that the SCAQMD and CARB have 

adequate legal authority to adopt and 

implement Rule 2449. 

3. Is the rule enforceable as required 

under CAA section 110(a)(2)? 

We have evaluated the enforceability 

of Rule 2449 and the CARB SOON 

Program with respect to applicability 

and exemptions; standard of conduct 

and compliance dates; sunset 

provisions; discretionary provisions; 

and test methods, recordkeeping and 

reporting,18 and have concluded for the 

reasons given below that the rule is 

enforceable for the purposes of CAA 

section 110(a)(2). 

First, with respect to applicability, we 

find Rule 2449 and the CARB SOON 

Program to be sufficiently clear as to 

which fleet owners and which vehicles 

or engines are subject to the program 

and the rule (see Rule 2449 and 13 CCR 

section 2449.2(b)). In general, the rule 

applies to owners of vehicles that 

operate within the SCAQMD and are 

part of a fleet consisting of 40 percent 

Tier 0 and Tier 1 vehicles with greater 

than 20,000 hp statewide, excluding the 

hp from engines in two-engine vehicles 

and single engine cranes formerly 

subject to the Cargo Handling 

Equipment Regulation (see 13 CCR 

2449.2(b)(2)). 

Second, we find that Rule 2449 and 

the CARB SOON Program are 

sufficiently specific so that the persons 

affected are fairly on notice as to what 

the requirements and related 

compliance dates are. We have 

described the substantive requirements 

and compliance dates set forth in Rule 

2449 in section II.D. of today’s proposed 

rule. 

Third, the requirements of Rule 2449 

will sunset at different times from 2011 

through 2023, depending on when the 

SCAQMD issues its solicitations for 

funding; however, once a fleet is no 

longer subject to Rule 2449, it will be 

then be subject to the requirements of 

the Off-Road Regulation. 

Fourth, Rule 2449 contains a 

provision that allows for discretion on 

the part of CARB’s Executive Officer 

(EO), this provision is limited both in 

scope and application, and is no longer 

relevant since the date to request 

discretion has passed (see 13 CCR 

section 2449.2(e)(2), allowing a fleet to 

apply to the EO for an extension from 

the requirements if the rule calculations 

would require a fleet to turn over Tier 

2 or better engines before January 1, 

2014). As such, we find that this 

provision does not undermine the 

enforceability of Rule 2449 or preclude 

its approval into the SIP. 

Lastly, Rule 2449 identifies 

appropriate calculation requirements 

and includes adequate recordkeeping 

and reporting requirements sufficient to 

ensure compliance with the applicable 

requirements. In particular, as described 

above, once the SCAQMD issues a 

solicitation, each subject fleet owner 

must submit a report containing 

detailed information about each vehicle 

and engine in the fleet, each VDECS 

installed on an engine in the fleet, and 

other information related to compliance 

with the Off-Road Rule (see 13 CCR 

2449(d)(1)(A) and 2449(g). If the fleet 

average index is greater than the SOON 

fleet average target rate, the fleet owner 

must apply for SOON funding (13 CCR 

2449.2(d)(1)(B)). If the necessary NOX

retrofits, repower, or vehicle 

replacements are available, the 

application must indicate how these 

retrofits, repowers, or vehicle 

replacements would bring the fleet 

average index for vehicles that operate 

within the SCAQMD to less than or 

equal to the SOON fleet average target 

rate (13 CCR 2449.2(d)(1)(D)). In 

addition, the fleet owner must prepare 

and submit a compliance plan laying 

out the actions it is required to take 

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Federal Register / Vol. 81, No. 47 / Thursday, March 10, 2016 / Proposed Rules 12641 

under section 2449.1 and the actions for 

which it is applying to the SCAQMD for 

funding under section 2449.2 (13 CCR 

2449.2(e)(3)). 

4. Does the rule interfere with 

reasonable further progress and 

attainment or any other applicable 

requirement of the Act? 

As discussed above, the SCAQMD’s 

2012 AQMP relies on NOX reductions 

from Rule 2449 to attain the one-hour 

and 1997 eight-hour ozone NAAQS. The 

EPA has approved SCAQMD’s 

commitment to implement the SOON 

Program as part of the SCAQMD’s 

aggregate NOX emissions reductions 

commitment (see 79 FR 29712, 29720 

and 29721). Approval of Rule 2449 into 

the SIP will help fulfill this 

commitment. Thus, the EPA believes 

that approval of Rule 2449 does not 

interfere with Reasonable Further 

Progress, attainment or any other 

applicable requirement of the Act. 

5. Will the State and the SCAQMD have 

adequate personnel and funding for the 

rule? 

As discussed above, the SCAQMD has 

approved significant funding for the 

implementation of Rule 2449. The 2012 

AQMP states that the SCAQMD Board 

has allocated up to $30 million per year 

for the program and extended the SOON 

Program to 2023 (see Final 2012 AQMP: 

Appendix IV–B, p. IV–B–31). For ‘‘FY 

2015–2016,’’ or ‘‘Year 18’’ of the Carl 

Moyer Memorial Air Quality Standards 

Attainment Program, the SCAQMD 

expects to have approximately $5 

million of funding available for the 

SCAQMD SOON Program (see DRAFT 

Technology Committee Agenda #1, 

prepared for BOARD MEETING DATE: 

March 4, 2016, page 3). 

6. Does the rule meet the RACM and 

BACM requirements under CAA 

sections 172(c)(1) and 189? 

Rule 2449 provides for the most 

stringent in-use off-road diesel 

equipment requirements that we are 

aware of in the United States, and thus, 

we find that the rule implements both 

reasonably available and best available 

control measures for this source 

category. However, as discussed above, 

the EPA generally takes action on a 

RACM or BACM demonstration as part 

of our action on the State’s attainment 

demonstration for the relevant NAAQS. 

Thus, while we do not know of any 

more stringent requirements for this 

category at this time, we are also not 

taking any action on how this measure 

fits within the context of a RACM or 

BACM demonstration for the South 

Coast area. 

7. The EPA’s Rule Evaluation 

Conclusion 

Based on the above discussion, we 

believe Rule 2449 and the CARB SOON 

Program are consistent with the relevant 

CAA requirements, policies and 

guidance. 

IV. Proposed Action and Public 

Comment 

As authorized in section 110(k)(3) of 

the Act, the EPA is proposing to fully 

approve the submitted rule because we 

believe it fulfills all relevant 

requirements. We will accept comments 

from the public on this proposal until 

April 11, 2016. Unless we receive 

convincing new information during the 

comment period, we intend to publish 

a final approval action that will 

incorporate this rule into the federally 

enforceable SIP. 

V. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

SCAQMD Rule 2449. The EPA has 

made, and will continue to make, this 

document available electronically 

through www.regulations.gov and in 

hard copy at the appropriate EPA office 

(see the ADDRESSES section of this 

preamble for more information). 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve State choices, 

provided that they meet the criteria of 

the Act. Accordingly, this proposed 

action merely proposes to approve State 

law as meeting Federal requirements 

and does not impose additional 

requirements beyond those imposed by 

State law. For that reason, this proposed 

action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide the EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where the EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: February 25, 2016. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2016–05278 Filed 3–9–16; 8:45 am] 

BILLING CODE 6560–50–P 

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