[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Rules and Regulations]
[Pages 20308-20314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7023]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0544; FRL-9633-3]


Approval and Promulgation of Implementations Plans; California 
Air Resources Board--In-Use Heavy-Duty Diesel-Fueled Truck and Bus 
Regulation, and Drayage Truck Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the 
California State Implementation Plan (SIP) submitted by the California 
Air Resources Board (CARB or Board). This revision concerns two 
regulations that reduce emissions of diesel particulate matter (PM), 
oxides of nitrogen (NO<INF>X</INF>), and other pollutants from in-use, 
heavy-duty diesel-fueled trucks and buses, and drayage trucks. EPA is 
approving this SIP revision because the Agency has determined that the 
regulations are consistent with the relevant Clean Air Act 
requirements, policies and guidance. Final approval of the two 
regulations and incorporation of them into the California SIP makes 
them federally enforceable.

DATES: Effective Date: This rule is effective on May 4, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0544 for 
this action. The index to the docket is available electronically at 
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne 
Street, San Francisco, California. While all documents in the docket 
are listed in the index, some information may be publicly available 
only at the hard copy location (e.g., copyrighted material), and some 
may not be publicly available in either location (e.g., Confidential 
Business Information). To inspect the hard copy materials, please 
schedule an appointment during normal business hours with the contact 
listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Roxanne Johnson, EPA Region IX, (415) 
947-4150, <a href="/cdn-cgi/l/email-protection#09636661677a6667277b66716867676c496c7968276e667f"><span class="__cf_email__" data-cfemail="d3b9bcbbbda0bcbdfda1bcabb2bdbdb693b6a3b2fdb4bca5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. EPA's Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

[[Page 20309]]

I. EPA's Proposed Action

    On July 11, 2011 (76 FR 40652), EPA proposed to approve title 13, 
California Code of Regulations (CCR), section 2025 (``Regulation to 
Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and 
Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled 
Vehicles'') (referred to herein as the California Air Resources Board's 
(CARB's) ``Truck and Bus Regulation'' and 13 CCR section 2027 (``In-Use 
On-Road Diesel-Fueled Heavy-Duty Drayage Trucks'') (referred to herein 
as CARB's ``Drayage Truck Regulation'') as revisions to the California 
State Implementation Plan (SIP). We proposed to approve CARB's 
regulations under section 110(k)(3) of the Clean Air Act (CAA or 
``Act''). In today's action, EPA is taking final action to approve 
CARB's Truck and Bus Regulation and Drayage Truck Regulation.
    EPA proposed to approve the Truck and Bus Regulation and Drayage 
Truck Regulation based on the versions of the amended regulations 
released for public comment on May 19, 2011 and submitted by CARB to 
EPA in connection with a request to ``parallel process'' the 
regulations for SIP approval purposes. Our July 11, 2011 proposed rule 
provides detailed information on the State's procedural steps 
culminating in the public release of the proposed Truck and Bus 
Regulation and Drayage Truck Regulation that formed the basis for EPA's 
proposed approval, on the amendments to the original versions of the 
Truck and Bus Regulation and Drayage Truck Regulation (which had been 
originally adopted by CARB in December 2008 and December 2007, 
respectively), and on EPA's ``parallel process'' procedure used to 
evaluate and propose action on proposed SIP revisions prior to final 
adoption and submittal to EPA. The reader is directed to the July 11, 
2011 proposed rule for this detailed information. See 76 FR at 40653-
40654.
    The regulations were developed by CARB to reduce NO<INF>X</INF>, 
and PM emissions from in-use, heavy-duty diesel-fueled trucks and buses 
and to meet CAA requirements. NO<INF>X</INF> and volatile organic 
compounds (VOC) are precursors responsible for the formation of ozone; 
and NO<INF>X</INF>, VOC, ammonia, and sulfur dioxide are precursors for 
fine particulate matter (PM<INF>2.5</INF>). At elevated levels, ozone 
and PM<INF>2.5</INF> harm human health and the environment by 
contributing to premature mortality, aggravation of respiratory and 
cardiovascular disease, decreased lung function, visibility impairment, 
and damage to vegetation and ecosystems. California has a number of 
nonattainment areas for the National Ambient Air Quality Standards 
(NAAQS) for ozone and PM<INF>2.5</INF>, and the CAA requires states to 
submit SIP revisions that ensure reasonable further progress (RFP) and 
that demonstrate attainment of the NAAQS within such areas. See, 
generally, part D of title I of the CAA. Reductions from the two 
regulations play a critical role in assuring that areas such as the 
South Coast Air Basin (which includes the Los Angeles metropolitan area 
and Orange County) and the San Joaquin Valley meet the NAAQS for ozone 
and PM<INF>2.5</INF>.\1\
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    \1\ Recently, EPA concurred with the State's determinations that 
sulfur dioxide, NO<INF>X</INF> and VOC are significant 
PM<INF>2.5</INF> precursors for attainment planning purposes in the 
South Coast [76 FR 69928, at 69952 (Nov. 9, 2011)], and that sulfur 
dioxide and NO<INF>X</INF> are significant PM<INF>2.5</INF> 
precursors for attainment planning purposes in San Joaquin Valley 
[76 FR 69896, at 69924 (Nov. 9, 2011)].
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Truck and Bus Regulation

    CARB's Truck and Bus Regulation (i.e., 13 CCR section 2025) 
requires fleet \2\ owners to upgrade their vehicles to meet specific 
performance standards for NO<INF>X</INF> and PM. The regulation applies 
to diesel-fueled trucks and buses that are privately owned, federally 
owned, and to publicly and privately owned school buses, that have a 
manufacturer's gross vehicle weight rating (GVWR) greater than 14,000 
pounds (lbs). (Local and state government owned diesel-fueled trucks 
are already subject to other CARB regulations.) Nearly all of the 
vehicles affected by the regulation are on-road vehicles, but the 
regulation also applies to yard trucks with off-road engines used for 
agricultural operations and two-engine street sweepers with such 
engines. The regulation exempts certain categories of trucks and buses, 
many of which, such as solid waste collection vehicles, are subject to 
different CARB regulations. See 13 CCR section 2025(c).
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    \2\ In CARB's Truck and Bus Regulation, ``fleet'' is defined as 
one or more vehicles, owned by a person, business, or government 
agency, traveling in California and subject to the regulation. See 
13 CCR section 2025(d)(28).
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    Key concepts used in the Truck and Bus Regulation include ``2010 
Model Year (MY) Emissions Equivalent Engine,'' ``PM Best Available 
Control Technology'' (BACT), and ``Verified Diesel Emission Control 
Strategy'' (VDECS). These concepts are described in detail in our July 
11, 2011 proposed rule on pages 40654 and 40655 and the reader is 
directed there for more information on these concepts.
    As described in our July 11, 2011 proposed rule, the basic 
requirements of the regulation are set forth in subsections (e), (f), 
and (g) of the regulation. Under these subsections, different sets of 
requirements are established for subject vehicles with a GVWR of 26,000 
lbs or less [subsection (f)] and subject vehicles with a GVWR greater 
than 26,000 lbs [subsection (g)]. Under subsection (f), with certain 
exceptions, subject vehicles with a GVWR of 26,000 lbs or less must, 
starting January 1, 2015, be equipped with a ``2010 model year 
emissions equivalent engine'' pursuant to the schedule shown in table 
1. School buses, that otherwise would be subject to subsection (f), are 
subject to a different set of requirements in subsection (k). Under 
subsection (k), with certain exceptions, all schools buses must comply 
with PM BACT by 2014.

 Table 1--Compliance Schedule Under Section 2025(f) by Engine Model Year
                      for Lighter Heavy-Duty Trucks
------------------------------------------------------------------------
                                    Compliance date
    Existing engine model year      as of January 1      Requirement
------------------------------------------------------------------------
1995 and older...................              2015  2010 model year
                                                      emission
                                                      equivalent.
1996.............................              2016
1997.............................              2017
1998.............................              2018
1999.............................              2019
2003 and older...................              2020
2004-2006........................              2021
All engines......................              2023
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[[Page 20310]]

    Under subsection (g), with certain exceptions, subject vehicles 
with a GVWR more than 26,000 lbs must, starting January 1, 2012, meet 
the PM Best Available Control Technology (BACT) requirement and must 
upgrade to a 2010 MY emissions equivalent engine pursuant to the 
schedule shown in table 2. Fleets with vehicles otherwise subject to 
subsection (g) may opt for a different phase-in compliance schedule for 
PM BACT but must comply with section 2025(g) by 2023. See 13 CCR 
section 2025, subsections (h) (``Small Fleet Compliance Option'') and 
(i) (``Phase-in Option'').

 Table 2--Compliance Schedule Under Section 2025(g) by Engine Model Year
                      for Heavier Heavy-Duty Trucks
------------------------------------------------------------------------
                                     Compliance date     Compliance date
        Engine model year           install PM filter    2010 engine by
                                       by January 1         January 1
------------------------------------------------------------------------
1993 and older...................  No Requirement.....              2015
1994-1995........................  No Requirement.....              2016
1996-1999........................  2012...............              2020
2000-2004........................  2013...............              2021
2005-2006........................  2014...............              2022
2007 or newer....................  2014 if not OEM                  2023
                                    equipped.
------------------------------------------------------------------------

    Section 2025(j) allows credits for early PM retrofits, fleets that 
have downsized, early addition of newer vehicles, hybrid vehicles, 
alternative fueled vehicles and vehicles with heavy-duty pilot ignition 
engines that can allow delayed requirements for other heavier trucks in 
the fleet. Fleet owners are required to meet the reporting and 
recordkeeping requirements of subsections (r) and (s). Credits are not 
transferrable except with appropriate documentation of a change of 
business form approved by the CARB Executive Officer (EO).
    Subsection (l) of the Truck and Bus Regulation provides 
requirements for drayage trucks and utility vehicles. Drayage trucks 
subject to the Drayage Truck Regulation may be included in the fleet to 
comply with the requirements of the Truck and Bus Regulation only if 
all drayage trucks are included. Starting January 1, 2023, all drayage 
truck owners must comply with the requirements of the Truck and Bus 
Regulation.
    Other provisions in the Truck and Bus Regulation include certain 
requirements and exemptions for agricultural fleets [13 CCR 2025(m)]; 
requirements for single-engine and two-engine sweepers [13 CCR 
2025(n)]; requirements for a new fleet and changes in an existing fleet 
[13 CCR 2025(o)]; certain exemptions, delays, and extensions [13 CCR 
2025(p)]; special provisions for VDECS and experimental diesel emission 
control strategies [13 CCR 2025(q)]; detailed reporting requirements 
[13 CCR 2025(r)]; recordkeeping requirements [13 CCR 2025(s)]; 
provisions for auditing of records [13 CCR section 2025(t)]; provisions 
for record retention [13 CCR 2025(u)]; provisions establishing CARB's 
right of entry [13 CCR 2025(v)]; provisions requiring disclosures by 
sellers [13 CCR 2025(w)]; compliance requirements [13 CCR 2025(x)]; 
provisions for CARB issuance of certificates of reported compliance [13 
CCR 2025(y)]; and penalties for non-compliance [13 CCR section 
2025(z)]. The reader is directed to the proposed rule (pages 40654-
40656) for additional information on the content of the Truck and Bus 
Regulation.

Drayage Truck Regulation

    CARB's Drayage Truck Regulation (13 CCR section 2027) applies to 
owners and operators of certain in-use, on-road, diesel-fueled, heavy-
duty drayage vehicles with a GVWR greater than 26,000 pounds defined as 
``drayage trucks.'' Drayage trucks are those that are used for 
transporting cargo, such as containerized, bulk, or break-bulk goods 
and that operate on or transgress through port or intermodal rail yard 
property for the purpose of loading, unloading or transporting cargo, 
including transporting empty containers and chassis; or that operate 
off port or intermodal rail yard property transporting cargo or empty 
containers or chassis that originated from or is destined to a port or 
intermodal rail yard property. The regulation also applies to owners 
and operators of motor carriers that dispatch drayage trucks that 
operate in California, marine or port terminals, intermodal rail yards, 
and rail yard and port authorities. Owners and operators are subject to 
the Drayage Truck Regulation through December 31, 2022. Starting 
January 1, 2023, drayage trucks will be subject to the Truck and Bus 
Regulation.
    As described in our July 11, 2011 proposed rule, section 2027(d) of 
the Drayage Truck Regulation establishes the requirements and 
compliance deadlines, grouped into two phases, for drayage trucks. 
Phase 1 of the regulation [section 2027(d)(1)] required, by December 
31, 2009, all drayage trucks with a GVWR greater than 33,000 pounds to 
be equipped with a 1994-2003 MY engine certified to California or 
federal emission standards and a level 3 VDECS for PM emissions; or a 
2004 or newer MY engine certified to California or federal emission 
standards. Drayage trucks with GVWR greater than 33,000 pounds but with 
2004-2006 MY engines are allowed extra time to be equipped with a level 
3 VDECS (by January 1, 2012 for subject vehicles with MY 2004 engines 
and by January 1, 2013 for vehicles with MY 2005-2006 engines). Under 
Phase 1, by January 1, 2012, all drayage trucks with a GVWR of 26,001 
lbs to 33,000 pounds must be equipped with a level 3 VDECS for PM 
emissions while operating in the South Coast Air Basin. Phase 2 
[section 2027(d)(2)] requires that, beginning on January 1, 2014, all 
drayage trucks must be equipped with a 1994 or newer MY engine that 
meets or exceeds 2007 MY California or federal emissions standards.
    Drayage truck owners must register with the CARB Drayage Truck 
Registry, a database that contains information on all trucks that 
conduct business at California ports and intermodal rail yards. See 
section 2027(e). The Drayage Truck Regulation provides for the same 
types of penalties for non-compliance as described above for the Truck 
and Bus Regulation. See section 2027(g). Sections 2027(h) (``Right of 
Entry'') and 2027(i) (``Enforcement'') authorize and support efforts by 
CARB and other officials to ensure compliance with the regulation. 
Section 2023(j) is a sunset clause that provides that, starting January 
1, 2023, drayage trucks would no longer be subject to the provisions of

[[Page 20311]]

the Drayage Truck Regulation but rather would be subject to the 
provisions of the Truck and Bus Regulation in 13 CCR section 2025. The 
reader is directed to the July 11, 2011 proposed rule (page 40656) for 
additional information on the content of the Drayage Truck Regulation.

Summary of EPA's Evaluation of the Regulations in Proposed Rule

    In our July 11, 2011 proposed rule, we described the basis for our 
evaluation of the two regulations. Specifically, we noted that 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 (RFP), or any other applicable requirement of the Act [see CAA 
section 110(l)].\3\
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    \3\ CAA 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 the Truck and Bus Regulation or the Drayage Truck 
Regulation because they do not constitute pre-1990 SIP control 
requirements.
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    In our July 11, 2011 proposed rule, we proposed approval of the 
Truck and Bus Regulation and Drayage Truck Regulation based on our 
conclusion that the regulation would meet the applicable procedural and 
substantive requirements of the Clean Air Act for SIPs and SIP 
revisions described in the previous paragraph. The following paragraphs 
summarize our findings in this regard from our proposed rule.
    First, with respect to the procedural requirements of CAA section 
110(l), we noted the extensive public process that CARB conducted prior 
to the adoption of the original versions of the Truck and Bus 
Regulation in December 2008 and the Drayage Truck Regulation in 
December 2007 and the extensive public process that CARB conducted for 
the recent amendments to the two regulations. We anticipated that we 
would conclude that CARB had met the applicable procedural requirements 
for SIP revisions upon submittal by CARB of the final adopted 
regulations as a SIP revision with the necessary public process 
documentation.
    On September 21, 2011, CARB submitted the final adopted versions of 
the Truck and Bus Regulation and the Drayage Truck Regulation to EPA as 
a revision to the California SIP, and on December 9 and 15, 2011, CARB 
supplemented the September 21, 2011 submittal with evidence of approval 
of the regulations by the California Office of Administrative Law. 
CARB's September 21, 2011 submittal, as supplemented on December 9 and 
15, 2011, includes the documentation of the adoption and public process 
for the amendments to the two regulations that we had anticipated in 
our July 11, 2011 proposed rule. Thus, we conclude that CARB has met 
the procedural requirements under CAA section 110(l) for reasonable 
public notice and hearing prior to adoption of SIPs and SIP revisions.
    Second, in our July 11, 2011 proposed rule, we described the 
general and specific authority granted to CARB under the California 
Health and Safety Code (H&SC) to adopt and implement the two 
regulations.
    Third, in our July 11, 2011 proposed rule, we evaluated the 
enforceability of both regulations with respect to applicability and 
exemptions; standard of conduct and compliance dates; sunset 
provisions; discretionary provisions; and test methods, recordkeeping 
and reporting,\4\ and concluded that the two regulations would be 
enforceable for the purposes of CAA section 110(a)(2) for the following 
reasons:
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    \4\ These 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.
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    <bullet> The regulations would be sufficiently clear as to which 
persons and which vehicles or engines are affected by the regulations;
    <bullet> The regulations would be sufficiently specific so that the 
persons affected by the regulations would be fairly on notice as to 
what the requirements and related compliance dates are;
    <bullet> The sunset clause in the Drayage Truck Regulation would be 
acceptable because it merely transfers CARB's regulatory authority over 
drayage trucks from the Drayage Truck Regulation to the Truck and Bus 
Regulation;
    <bullet> The ``director's discretion'' provisions in the two 
regulations would be sufficiently limited in scope and application; and
    <bullet> The regulations would require use of appropriate test 
methods and would include adequate recordkeeping and reporting 
requirements sufficient to ensure compliance with the applicable 
requirements.
    Fourth, in our July 11, 2011 proposed rule, we noted that the 
State's 2007 State Strategy to attain the 1997 PM<INF>2.5</INF> and 
ozone NAAQS in areas like the South Coast Air Basin and the San Joaquin 
Valley are relying on the Truck and Bus Regulation and Drayage Truck 
Regulation, among other CARB regulations, to help achieve needed 
emissions reductions and thereby meet the aggregated State emissions 
reduction commitments made by CARB in connection with the regional air 
quality plans. As such, we concluded that the Truck and Bus Regulation 
and the Drayage Truck Regulation would not interfere with RFP, 
attainment or any other applicable requirement of the Act in accordance 
with CAA section 110(l).
    Based on the evaluation summarized above, we concluded in our July 
11, 2011 proposal that the Truck and Bus Regulation and the Drayage 
Truck Regulation would be consistent with the relevant CAA 
requirements, policies and guidance. The reader is directed to our July 
11, 2011 proposed rule (pages 40657-40659) for a more detailed 
discussion of our evaluation of the Truck and Bus Regulation and 
Drayage Truck Regulation.
    Lastly, we indicated in our July 11, 2011 proposed rule that if the 
State substantially revises the version of the Truck and Bus Regulation 
or the Drayage Truck Regulation that was released for public comment by 
the State and that was submitted for ``parallel processing,'' this 
would result in the need for additional proposed rulemaking on the 
regulations by EPA. On September 21, 2011, CARB submitted the final 
versions of the Truck and Bus Regulation and Drayage Truck Regulation, 
which were adopted by the CARB Executive Officer on September 19, 2011, 
to EPA as a revision to the California SIP.
    The two final adopted regulations essentially mirror the versions 
of the regulations that had been released for public comment and that 
had been submitted to EPA for parallel processing, and on which EPA had 
based the Agency's proposed approval. Because the two final adopted 
regulations are essentially the same as the versions of the rules on 
which the proposed approval was based, we can rely on our evaluation of 
the proposed versions of the Truck and Bus Regulation and Drayage Truck 
Regulation, as set forth in our July 11,

[[Page 20312]]

2011 proposed rule and summarized above, in taking today's final action 
to approve the final adopted versions of the regulations.
    Under California law, once adopted, a regulation must still be 
approved by the California Office of Administrative Law (OAL) to take 
effect. CARB's Truck and Bus Regulation and Drayage Truck Regulation, 
as amended, were approved by OAL on December 14, 2011 and November 9, 
2011, respectively, and became effective under State law on the same 
days as their OAL approvals. On December 9, 2011 and December 15, 2011, 
CARB submitted evidence of approval of the final, adopted Drayage Truck 
Regulation and Truck and Bus Regulation, respectively, by the 
California OAL to EPA as supplements to CARB's September 21, 2011 SIP 
revision, and therefore, CARB has now provided EPA with all of the 
documentation necessary for EPA to take this final action on the two 
subject regulations.

II. Public Comments and EPA Responses

    Our July 11, 2011 proposed rule provided a 30-day comment period. 
During this period, we did not receive any comments on our proposed 
action on CARB's Truck and Bus Regulation. However, we received three 
comment letters in connection with our proposed action on CARB's 
Drayage Truck Regulation. The comments and our responses are provided 
below.
    Individual Trucking Company: An Individual Trucking Company 
requests that EPA prevent Phase 2 of CARB's Drayage Truck Regulation 
from being implemented on the schedule set forth in the regulation due 
to social and economic impacts that the Individual Trucking Company 
believes will result, in part due to the absence of a CARB-verified 
filter available to allow truck owners and operators to comply with 
Phase 2 requirements. The Individual Trucking Company notes that 
development of such a filter is unlikely now that the schedule for 
Phase 2 compliance by non-drayage trucks has been extended to dates 
later than for drayage trucks.
    EPA Response: Under Phase 2 of CARB's Drayage Truck Regulation, 
beginning January 1, 2014, all drayage trucks must be equipped with a 
1994 or newer model year engine that meets or exceeds 2007 MY 
California or federal emission standards. See 13 CCR 2027(d)(2). In our 
July 11, 2011 proposed rule, we evaluated the Drayage Truck Regulation 
against the procedural and substantive requirements of the CAA for SIPs 
and SIP revisions and determined that the regulation meet all of the 
applicable requirements. See pages 40657-40659 of the proposed rule.
    Under the CAA, EPA is required to approve a SIP submission that 
complies with the provisions of the Act and applicable Federal 
requirements. See section 110(k) of the CAA and 40 CFR 52.02(a). Thus, 
in reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the Clean Air Act. The above 
comments from the Individual Trucking Company do not challenge EPA's 
conclusion that the Drayage Truck Regulation meets all applicable CAA 
requirements but rather contend, for various reasons, that Phase 2 of 
CARB's Drayage Truck Regulation is too costly and may not be 
economically or technologically feasible. However, such considerations 
cannot form the basis for EPA disapproval of a rule submitted by a 
state as part of a SIP [see Union Electric Company v. EPA; 427 U.S. 
246, 265 (1976)]. Moreover, EPA disapproval of CARB's regulation would 
not prevent the implementation of Phase 2 because the Phase 2 
requirements would still apply, and would still be enforceable, under 
State law, regardless of EPA's action to approve or disapprove the 
regulation as a revision to the California SIP.
    Anonymous Oakland Trucker: The Oakland trucker objects to CARB's 
decision not to delay Phase 2 of the Drayage Truck Regulation 
consistent with the delay adopted for non-drayage truckers under the 
Truck and Bus Regulation and contends that, due to the lack of a filter 
to allow 2004-2006 MY trucks to remain compliant with the regulation 
through 2020, certain social and economic consequences will result.
    EPA Response: As explained above in our response to the Individual 
Trucking Company, in reviewing SIP submissions, EPA's role is to 
approve State choices, provided that they meet the criteria of the 
Clean Air Act, and that objections to a State rule grounded in economic 
or technological feasibility cannot form the basis for EPA disapproval 
of the rule submitted by a state as part of a SIP.
    West State Alliance: West State Alliance (WSA), an association of 
truckers and ancillary goods movement industries servicing the Port of 
Oakland, generally requests that EPA disapprove the Drayage Truck 
Regulation as a revision of the California SIP based on the contents of 
seven documents attached to their general comment requesting 
disapproval. The seven documents include the following:
    <bullet> A letter from WSA to CARB, dated December 28, 2010, 
objecting to CARB's December 17, 2010 decision not to delay the Phase 2 
requirements under the Drayage Truck Regulation.
    <bullet> A letter from Horizon Freight System, Inc. to CARB, dated 
December 29, 2010, objecting to CARB's December 17, 2010 decision not 
to delay the Phase 2 requirements under the Drayage Truck Regulation.
    <bullet> A letter from Diesel Emissions Service to WSA, dated 
December 29, 2010, discussing the lack of an available EPA- or CARB-
verified retrofit system that would allow the operator of a 1994-2006 
model year engine to meet the requirements of Phase 2 of CARB's Drayage 
Truck Regulation.
    <bullet> An undated letter from an Oakland City Councilmember to 
CARB objecting to CARB's failure to extend the Phase 2 compliance dates 
in the Drayage Truck Regulation consistent with the compliance date 
extensions adopted by CARB in the Truck and Bus Regulation.
    <bullet> An undated WSA fact sheet concerning CARB's Drayage Truck 
Regulation that was circulated after CARB's December 17, 2010 decision 
not to delay the Phase 2 requirements under the Drayage Truck 
Regulation.
    <bullet> A WSA request to CARB submitted May 16, 2011 requesting 
that CARB reconsider the Proposed Amendments to the Drayage Truck 
Regulation of October 2010 that would have aligned scheduled upgrades 
for drayage trucks with other diesel trucks under CARB's Truck and Bus 
Regulation.
    <bullet> A letter to CARB dated August 3, 2011 from an attorney 
retained by WSA concerning the costs of implementation of Phase 2 of 
CARB's Drayage Truck Regulation as well as CARB's purported failure to 
prepare a study on the economic impacts on business under California 
Government Code 11346, et seq., in connection with CARB's decision not 
to delay implementation of Phase 2 of the Drayage Truck Regulation.
    EPA Response: EPA has reviewed the seven documents and finds that, 
with one exception, the comments contained therein object to the 
compliance date for Phase 2 requirements under CARB's Drayage Truck 
Regulation based on purported economic or technological infeasibility, 
unfairness relative to non-drayage truckers, and unavailability of 
funding, and that the comments also denounce the purported adverse 
social impacts that will result, particularly to the West Oakland 
community. However, as discussed above in responses to comments from 
the Individual Trucking Company and the Anonymous Oakland Trucker, such 
considerations cannot

[[Page 20313]]

form the basis for EPA disapproval of the rule submitted by a state as 
part of a SIP.
    The one specific comment that does relate to EPA's action is 
directed to CARB, rather than EPA, but it challenges CARB's decision 
not to extend Phase 2 compliance dates on state law grounds. SIP rules 
must be adopted by states in compliance with their own laws because a 
state must provide necessary assurances that it has adequate legal 
authority to carry out the SIP revision and, where a state has not 
followed its own laws in adopting a rule subsequently submitted as a 
SIP revision, such assurances generally cannot be provided. See CAA 
section 110(a)(2)(E).
    In this instance, the commenter accuses CARB of failing to follow 
the mandates of state law proscribed by California Government Code 
section 11346, et seq., which generally establishes procedures for 
state departments and agencies for adoption, amendment, or repeal of 
administrative regulations. Among the requirements are the duty to 
assess the potential for adverse economic impact on California 
businesses and individuals and to identify and evaluate alternatives 
that are less burdensome but equally effective. See Cal. Government 
Code Sec. Sec.  11346.2 and 11346.3. However, we note that CARB 
specifically addressed the issue of adverse economic impacts related to 
CARB's decision not to extend Phase 2 compliance dates under the 
Drayage Truck Regulation in CARB's Final Statement of Reasons for 
Rulemaking (for the Drayage Truck Regulation) (``FSOR''), which was 
submitted by CARB in its SIP submittal dated September 21, 2011. In the 
FSOR, CARB explains that CARB staff performed the required economic 
analysis of the impacts to drayage businesses for compliance with the 
Phase 2 requirements as part of the rulemaking decision in 2007, and 
that no new economic analysis is required for CARB's decision to retain 
those requirements. See CARB's FSOR, page 46. We find that CARB's 
response adequately addresses this issue and provides us with the 
necessary assurances that CARB has complied with state law in adopting 
the Drayage Truck Regulation and will be able to carry out this SIP 
revision.

III. Final Action

    No comments were submitted that change our assessment that the 
Truck and Bus Regulation and Drayage Truck Regulation comply with the 
relevant CAA requirements. Therefore, pursuant to section 110(k)(3) of 
the CAA and for the reasons given above and in our July 11, 2011 
proposed rule, EPA is taking final action to approve the Truck and Bus 
Regulation and Drayage Truck Regulation into the California SIP. The 
specific rules approved into the SIP in today's action are:
    <bullet> 13 CCR section 2025 (``Regulation to Reduce Emissions of 
Diesel Particulate Matter, Oxides of Nitrogen and Other Criteria 
Pollutants, from In-Use Heavy-Duty Diesel-Fueled Vehicles''), as 
adopted by the CARB Executive Officer on September 19, 2011, submitted 
on September 21, 2011, and made effective under State law on December 
14, 2011; and
    <bullet> 13 CCR section 2027 (``In-Use On-Road Diesel-Fueled Heavy-
Duty Drayage Trucks''), as adopted by the CARB Executive Officer on 
September 19, 2011, submitted on September 21, 2011, and made effective 
under State law on November 9, 2011.

Final approval of the regulations and incorporation of them into the 
California SIP makes them federally enforceable.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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 Clean Air Act; and
    <bullet> Does not provide 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, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 4, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

[[Page 20314]]

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: January 26, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(409) and (c)(410) 
to read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (409) New regulation was submitted on December 9, 2011, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) California Air Resources Board.
    (1) State of California Office of Administrative Law, ``Notice of 
Approval of Regulatory Action,'' Title 13, California Code of 
Regulations (CCR), section 2027, effective on November 9, 2011.
    (2) Final Regulation Order, 13 CCR section 2027 (``In-Use On-Road 
Diesel-Fueled Heavy-Duty Drayage Trucks'').
    (410) New regulation was submitted on December 15, 2011, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) California Air Resources Board.
    (1) State of California Office of Administrative Law, ``Notice of 
Approval of Regulatory Action,'' Title 13, California Code of 
Regulations (CCR), section 2025, effective on December 14, 2011.
    (2) Final Regulation Order, 13 CCR section 2025 (``Regulation to 
Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and 
Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled 
Vehicles'').

[FR Doc. 2012-7023 Filed 4-3-12; 8:45 am]
BILLING CODE 6560-50-P


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