38970 Federal Register / Vol. 78, No. 125 / Friday, June 28, 2013 / Notices 

1 74 FR 3030 (January 16, 2009). 

2California Air Resources Board (‘‘CARB’’), 

‘‘Request for Authorization,’’ May 13, 2011. 

3Flexibility engines are engines that meet less 

stringent emission standards than otherwise 

required for new off-road engines. CARB, ‘‘Request 

that Amendments to California’s Airborne Toxic 

Control Measure for In-Use Diesel-Fueled Transport 

Refrigeration Units (TRU) and TRU Generator Sets 

and Facilities Where TRUs Operate Be Found 

Within the Scope of the Existing Authorization 

Granted Pursuant To Section 209(e) Of The Clean 

Air Act’’, EPA–HQ–OAR–2012–0741–0002, (May 

13, 2011), at page 3. 

4CARB, ‘‘Resolution 10–39,’’ November 18, 2010; 

CARB, ‘‘Executive Order R–11–001,’’ February 2, 

2011. 

accommodate persons with physical 

disabilities or special needs. If you 

require special accommodations due to 

a disability, please contact Rachel 

Blumenfeld as soon as possible in 

advance of the meeting at the telephone 

number listed above. Written statements 

may be filed with the Board either 

before or after the meeting. Individuals 

who wish to make oral statements 

pertaining to agenda items should 

contact Rachel Blumenfeld at the 

telephone number listed above. 

Requests must be received as soon as 

possible prior to the meeting and 

reasonable provision will be made to 

include the presentation in the agenda. 

The Deputy Designated Federal Officer 

is empowered to conduct the meeting in 

a fashion that will facilitate the orderly 

conduct of business. Individuals 

wishing to make public comments will 

be provided a maximum of five minutes 

to present their comments. The EM 

SSAB, Paducah, will hear public 

comments pertaining to its scope (cleanup standards and environmental 

restoration; waste management and 

disposition; stabilization and 

disposition of non-stockpile nuclear 

materials; excess facilities; future land 

use and long-term stewardship; risk 

assessment and management; and cleanup science and technology activities). 

Comments outside of the scope may be 

submitted via written statement as 

directed above. 

Minutes: Minutes will be available by 

writing or calling Rachel Blumenfeld at 

the address and phone number listed 

above. Minutes will also be available at 

the following Web site: http:// 

www.pgdpcab.energy.gov/ 

2013Meetings.html. 

Issued at Washington, DC on June 25, 2013. 

LaTanya R. Butler, 

Deputy Committee Management Officer. 

[FR Doc. 2013–15528 Filed 6–27–13; 8:45 am] 

BILLING CODE 6450–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2012–0741; FRL–9828–3] 

California State Nonroad Engine 

Pollution Control Standards; Withinthe-Scope Determination for 

Amendments to California’s ‘‘Airborne 

Toxic Control Measure for In-Use 

Diesel-Fueled Transport Refrigeration 

Units (TRU) and TRU Generator Sets 

and Facilities Where TRUs Operate’’; 

Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision. 

SUMMARY: EPA confirms that 

amendments promulgated by the 

California Air Resources Board 

(‘‘CARB’’) are within the scope of an 

existing authorization issued by EPA for 

California’s in-use diesel-fueled TRU 

regulations. 

DATES: Petitions for review must be filed 

by August 27, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2012–0741. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, and public comments, 

are contained in the public docket. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

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

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

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

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-rDocket@epa.gov, the telephone number 

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

is (202) 566–9744. An electronic version 

of the public docket is available through 

the federal government’s electronic 

public docket and comment system. 

You may access EPA dockets at http:// 

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA HQ–OAR–2012–0741 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record of CARB’s TRU 

amendments within-the-scope 

authorization request. Although a part 

of the official docket, the public docket 

does not include Confidential Business 

Information (‘‘CBI’’) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

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

page that contains general information 

on its review of California waiver 

requests. Included on that page are links 

to prior waiver Federal Register notices, 

some of which are cited in today’s 

notice; the page can be accessed at 

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

FOR FURTHER INFORMATION CONTACT: 

Brenton M. Williams, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105. Telephone: (734) 214–4341. Fax: 

(734) 214–4053. Email: 

williams.brent@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Chronology 

EPA granted an authorization for 

California’s initial set of TRU 

regulations on January 9, 2009.1 By 

letter dated May 13, 2011, CARB 

submitted to EPA its request pursuant to 

section 209(e) of the Clean Air Act 

(‘‘CAA’’ or ‘‘the Act’’), regarding 

amendments to its ‘‘Airborne Toxic 

Control Measure for In-Use DieselFueled Transport Refrigeration Units 

(TRU) and TRU Generator Sets and 

Facilities Where TRUs Operate’’ 

(hereinafter CARB’s ‘‘ATCM’’ or ‘‘TRU 

amendments’’).2 CARB asked that EPA 

confirm that the amendments either fall 

within the scope of the authorization 

EPA granted on January 9, 2009, 

pursuant to section 209(e) of the Clean 

Air Act, or are not subject to CAA 

preemption. 

B. CARB’s TRU Amendments 

Since EPA’s grant of an authorization 

for California’s TRU regulations in 2009, 

CARB has promulgated several 

amendments, which are at issue here. 

CARB’s Board adopted the TRU 

amendments on November 18, 2010, in 

Resolution 10–39. CARB’s TRU 

amendments accomplish three main 

objectives: (1) Relax the TRU in-use 

compliance requirements for all 2003 

and some 2004 model year TRUs and 

TRU generator sets (collectively referred 

to as ‘‘TRUs’’); (2) clarify the operational 

useful life of TRU flexibility engines 3; 

and (3) establish new reporting and 

recordkeeping requirements for TRU 

original equipment manufacturers 

(OEMs). CARB formally adopted the 

TRU amendments on February 4, 2011,4

and they became operative under 

California law on March 7, 2011. The 


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5CARB, ‘‘Final Regulation Order for title 13, 

California Code of Regulations, section 2477.’’ 

6Operational life is the life of the engine or unit 

as allowed under the regulation before an in-use 

standard must be met. Operational life should be 

distinguished from useful life, as defined under 

new engine standards and used for survivability 

(engine mortality over time) in engine population 

inventory reports. CARB, ‘‘Request that 

Amendments to California’s Airborne Toxic Control 

Measure for In-Use Diesel-Fueled Transport 

Refrigeration Units (TRU) and TRU Generator Sets 

and Facilities Where TRUs Operate Be Found 

Within the Scope of the Existing Authorization 

Granted Pursuant To Section 209(e) Of The Clean 

Air Act’’, EPA–HQ–OAR–2012–0741–0002, (May 

13, 2011), at page 2. 

7CARB, ‘‘Request that Amendments to 

California’s Airborne Toxic Control Measure for InUse Diesel-Fueled Transport Refrigeration Units 

(TRU) and TRU Generator Sets and Facilities Where 

TRUs Operate Be Found Within the Scope of the 

Existing Authorization Granted Pursuant To Section 

209(e) Of The Clean Air Act,’’ EPA–HQ–OAR– 

2012–0741–0002 (May 13, 2011) at page 2. 

8 Id. 

9CARB, ‘‘Request that Amendments to 

California’s Airborne Toxic Control Measure for InUse Diesel-Fueled Transport Refrigeration Units 

(TRU) and TRU Generator Sets and Facilities Where 

TRUs Operate Be Found Within the Scope of the 

Existing Authorization Granted Pursuant To Section 

209(e) Of The Clean Air Act’’, EPA–HQ–OAR– 

2012–0741–0002, (May 13, 2011), at page 3–4. 

10 Id. at 4. 11 78 FR 721 (January 4, 2013). 

TRU amendments are codified at title 

13, California Code of Regulations, 

section 2477.5

1. Relaxation of Standards for 2003 and 

2004 Model Year TRUs 

These amendments allow owners of 

model year 2003 TRUs in the 25 

horsepower (hp) and greater category 

the option of complying with the 

ATCM’s in-use standards by meeting the 

low emission TRU (‘‘LETRU’’) standard, 

which achieves a 50 percent particulate 

matter (PM) emission reduction. Prior to 

amendment, the ATCM had required 

that owners comply with the more 

stringent ultra-low emission TRU 

(‘‘ULETRU’’) in-use standard, which 

achieves an 85 percent PM reduction. 

This change, according to CARB, 

provides owners with more compliance 

flexibility and is needed because 

ULETRU compliance options presently 

are limited and relatively costly 

compared to LETRU compliance costs. 

The compliance date for meeting one of 

these standards would remain December 

31, 2010, seven years after the 2003 

engine model year, which is the end of 

the TRU’s operational life.6 Seven years 

later (i.e., by December 31, 2017), 

owners choosing to comply by meeting 

the LETRU standard would be required 

to meet the ULETRU standard.7

The amendments similarly provide 

owners of 2003 and 2004 model year 

TRU engines in the less than 25 hp 

category with the option of complying 

with the in-use standards by meeting 

the LETRU in-use standard in lieu of 

being required to meet the ULETRU 

standard by December 31, 2010, for 

model year 2003 engines and December 

31, 2011, for model year 2004 engines. 

As with the larger horsepower engines, 

those owners electing to comply by 

meeting the LETRU standard would 

need to upgrade their model year 2003 

and 2004 engines to the ULETRU 

standard seven years after initial 

compliance in either 2010 or 2011 (i.e., 

by December 31, 2017 or 2018, 

respectively).8

2. Clarification in Calculation of 

Operational Life for TRU Flexibility 

Engines in Future 

When the TRU ATCM was first 

adopted, CARB assumed that TRU 

engines manufactured in a specific year 

would meet the emission standards 

applicable for that year and that these 

engines would be upgraded to more 

stringent emission standards seven 

years after initial certification. CARB 

subsequently discovered that TRU 

OEMs were using significantly more 

flexibility engines in California than 

originally anticipated, with the 

consequence that the ATCM is 

achieving fewer emission reductions 

than forecasted. To address this 

problem, CARB amended the regulation 

to clarify that for flexibility engines 

installed in new TRUs after March 7, 

2011 (the date that the amendments 

became operative under California law), 

the seven-year operational life of a TRU 

engine must be based on the effective 

model year of the engine. The effective 

model year is defined as the last year 

that the lower emission tier of the 

flexibility engine was in effect for new 

engines. The amendments clarify that 

owners of TRU flexibility engines 

installed before the operative date of the 

amendments would be provided a full 

seven years of operational life from the 

year of the engine’s manufacture before 

having to meet the more stringent 

ULETRU in-use performance standard. 

Flexibility engines installed after that 

date will have a reduced operational life 

given that compliance would be based 

on the last year that the flexibility 

engine’s tier standard was in effect. 

CARB maintains that owners will not be 

adversely affected as TRU OEMs are 

required under the amendments to 

provide notice at the point of sale to the 

end-user that the TRUs are equipped 

with flexibility engines and have a 

shorter operational life. They must also 

provide the end-user with the date that 

the engine must meet the ULETRU 

standard.9

3. New Reporting and Recordkeeping 

Requirements for TRU OEMs 

CARB amended the TRU ATCM to 

require that TRU OEMs report 

production information, including 

information on flexibility engines 

installed in TRUs. The reporting, 

according to CARB, will ensure that 

manufacturers provide the data 

necessary to ensure that owners 

properly register TRUs in CARB’s 

equipment registration system (ARBER) 

and more accurately estimate emissions 

inventories, as well as allow CARB and 

TRU owners to properly track flexibility 

engines. TRU OEMs would be required 

to periodically report data on each TRU 

and installed engine produced in future 

model years and submit reports on TRU 

sales from previous years.10

C. EPA’s Review of California’s TRU 

Within-the-Scope Request 

By letter dated May 13, 2011, CARB 

submitted a request to EPA seeking 

confirmation that these amendments are 

within the scope of the authorization 

issued by EPA under section 209(e) of 

the Clean Air Act on January 9, 2009. 

EPA announced its receipt of 

California’s within-the-scope 

confirmation request in a Federal 

Register notice on January 4, 2013.11 In 

that notice, EPA offered an opportunity 

for public hearing and comment on 

CARB’s request. 

Although CARB’s request regarding 

its TRU amendments was submitted as 

a within-the-scope request, EPA invited 

comment on several issues. Within the 

context of a within-the-scope analysis, 

EPA invited comment on whether 

California’s standards: (1) Undermine 

California’s previous determination that 

its standards, in the aggregate, are at 

least as protective of public health and 

welfare as comparable Federal 

standards; (2) affect the consistency of 

California’s requirements with section 

202(a) of the Act; and (3) raise any other 

new issues affecting EPA’s previous 

waiver or authorization determinations. 

EPA also requested comment on issues 

relevant to a full authorization analysis, 

in the event that EPA determined that 

California’s standards should not be 

evaluated under the within-the-scope 

criteria noted above, and should instead 

be subjected to a full authorization 

analysis. Specifically, EPA sought 

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 


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12Comments of the Manufacturers of Emission 

Controls Association (‘‘MECA’’), EPA–HQ–OAR– 

2012–0741–0003 (March 1, 2013). 

13States are expressly preempted from adopting 

or attempting to enforce any standard or other 

requirement relating to the control of emissions 

from new nonroad engines which are used in 

construction equipment or vehicles or used in farm 

equipment or vehicles and which are smaller than 

175 horsepower. Such express preemption under 

section 209(e)(1) of the Act also applies to new 

locomotives or new engines used in locomotives. 

14 59 FR 36969 (July 20, 1994). 

15 62 FR 67733 (December 30, 1997). The 

applicable regulations, now in 40 CFR part 1074, 

subpart B, § 1074.105, provide: 

(a) The Administrator will grant the authorization 

if California determines that its standards will be, 

in the aggregate, at least as protective of public 

health and welfare as otherwise applicable federal 

standards. 

(b) The authorization will not be granted if the 

Administrator finds that any of the following are 

true: 

(1) California’s determination is arbitrary and 

capricious. 

(2) California does not need such standards to 

meet compelling and extraordinary conditions. 

(3) The California standards and accompanying 

enforcement procedures are not consistent with 

section 209 of the Act. 

(c) In considering any request from California to 

authorize the state to adopt or enforce standards or 

other requirements relating to the control of 

emissions from new nonroad spark-ignition engines 

smaller than 50 horsepower, the Administrator will 

give appropriate consideration to safety factors 

(including the potential increased risk of burn or 

fire) associated with compliance with the California 

standard. 

16 59 FR 36969 (July 20, 1994). 

17 40 FR 23103–23104 (May 28, 1975); see also 

LEV I Decision Document at 64 (58 FR 4166 

(January 13, 1993)). 

18 40 FR 23104; 58 FR 4166. 

separate standards to meet compelling 

and extraordinary conditions; and (c) 

whether California’s standards and 

accompanying enforcement procedures 

are consistent with section 202(a) of the 

Act. 

No party requested an opportunity for 

a hearing to present oral testimony, and 

EPA received only one written 

comment. The comment supports 

CARB’s amendments, and encourages 

EPA to confirm that the amendments are 

within the scope of CARB’s TRU 

authorization. The written comment is 

from the Manufacturers of Emission 

Controls Association (‘‘MECA’’).12

D. 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.13 For 

all other nonroad engines (including 

‘‘non-new’’ engines), states are 

preempted from adopting and enforcing 

standards and other requirements 

relating to the control of emissions, 

except that section 209(e)(2) of the Act 

requires EPA, after notice and 

opportunity for public hearing, to 

authorize California to adopt and 

enforce such regulations unless EPA 

makes one of three specifically 

enumerated findings. In addition, other 

states with attainment plans may adopt 

and enforce such regulations if the 

standards, and implementation and 

enforcement procedures, are identical to 

California’s standards. On July 20, 1994, 

EPA promulgated a rule that sets forth, 

among other things, regulations 

providing the criteria, as found in 

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

consider before granting any California 

authorization request for new nonroad 

engine or vehicle emission standards.14

EPA later revised these regulations in 

1997.15 As stated in the preamble to the 

1994 rule, EPA has historically 

interpreted the section 209(e)(2)(iii) 

‘‘consistency’’ inquiry to require, at 

minimum, that California standards and 

enforcement procedures be consistent 

with section 209(a), section 209(e)(1), 

and section 209(b)(1)(C) (as EPA has 

interpreted that subsection in the 

context of section 209(b) motor vehicle 

waivers).16

In order to be consistent with section 

209(a), California’s nonroad standards 

and enforcement procedures must not 

apply to new motor vehicles or new 

motor vehicle engines. To be consistent 

with section 209(e)(1), California’s 

nonroad standards and enforcement 

procedures must not 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 the Administrator 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. 

E. Within-the-Scope Determinations 

If California amends regulations that 

were previously granted an 

authorization, EPA can confirm that the 

amended regulations are within the 

scope of the previously granted 

authorization. Such within-the-scope 

determinations are permissible without 

a full authorization review if three 

conditions are met. First, the amended 

regulations must not undermine 

California’s determination that its 

standards, in the aggregate, are as 

protective of public health and welfare 

as applicable federal standards. Second, 

the amended regulations must not affect 

consistency with section 202(a) of the 

Act. Third, the amended regulations 

must not raise any ‘‘new issues’’ 

affecting EPA’s prior authorizations. 

F. Deference to California 

In previous waiver decisions, EPA has 

recognized that the intent of Congress in 

creating a limited review based on the 

section 209(b)(1) criteria was to ensure 

that the federal government did not 

second-guess state policy choices. This 

has led EPA to state: 

It is worth noting . . . I would feel 

constrained to approve a California approach 

to the problem which I might also feel unable 

to adopt at the federal level in my own 

capacity as a regulator. The whole approach 

of the Clean Air Act is to force the 

development of new types of emission 

control technology where that is needed by 

compelling the industry to ‘‘catch up’’ to 

some degree with newly promulgated 

standards. Such an approach . . . may be 

attended with costs, in the shaped of reduced 

product offering, or price or fuel economy 

penalties, and by risks that a wider number 

of vehicle classes may not be able to 

complete their development work in time. 

Since a balancing of these risks and costs 

against the potential benefits from reduced 

emissions is a central policy decision for any 

regulatory agency under the statutory scheme 

outlined above, I believe I am required to 

give very substantial deference to California’s 

judgments on this score.17

EPA has stated that the text, structure, 

and history of the California waiver 

provision clearly indicate both a 

congressional intent and appropriate 

EPA practice of leaving the decision on 

‘‘ambiguous and controversial matters of 

public policy’’ to California’s 

judgment.18

The House Committee Report 

explained as part of the 1977 

amendments to the Clean Air Act, 

where Congress had the opportunity to 

restrict the waiver provision, it elected 

instead to explain California’s flexibility 

to adopt a complete program of motor 

vehicle emission controls. The 

amendment is intended to ratify and 

strengthen the California waiver 

provision and to affirm the underlying 


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19 MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 

294, 95 Cong., 1st Sess. 301–02 (1977). 

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

21 Id. 

22 Id. 

23 Id. 

24See, e.g., 40 FR 21102–103 (May 28, 1975). 

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

26 Id. at 1126. 

27 Id. at 1126. 

28CARB, ‘‘Resolution 10–39,’’ November 18, 

2010. 

intent of that provision, i.e., to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare.19

G. 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.20

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.’’21

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.22 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.23

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.’’24

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.25

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.’’’ 26 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 27

II. Discussion 

A. Within-the-Scope Analysis 

We initially evaluate California’s TRU 

amendments by application of our 

traditional within-the-scope analysis, as 

CARB requested. If we determine that 

CARB’s request does not meet the 

requirements for a within-the-scope 

determination, we then evaluate the 

request based on a full authorization 

analysis. EPA sought comment on a 

range of issues, including those 

applicable to a within-the-scope 

analysis as well as those applicable to 

a full authorization analysis. No party 

submitted a comment that California’s 

TRU amendments require a full 

authorization analysis. Given the lack of 

comments on this issue, and the nature 

of the amendments, EPA will evaluate 

California’s TRU amendments by 

application of our traditional withinthe-scope analysis, as CARB requested. 

EPA can confirm that amended 

regulations are within the scope of a 

previously granted waiver of 

preemption if three conditions are met. 

First, the amended regulations must not 

undermine California’s determination 

that its standards, in the aggregate, are 

as protective of public health and 

welfare as applicable federal standards. 

Second, the amended regulations must 

not affect consistency with section 

202(a) of the Act. Third, the amended 

regulations must not raise any ‘‘new 

issues’’ affecting EPA’s prior 

authorizations. 

1. California’s Protectiveness 

Determination 

In its May 13, 2011 letter requesting 

a within-the scope determination, CARB 

points out that in approving the 

amendments relaxing the standards for 

2003 and 2004 model year TRUs, it 

found, in Resolution 10–39,28 that the 

TRU ATCM, as amended, in the 

aggregate, continues to be at least as 

protective of public health and welfare 

as applicable federal standards. CARB 

noted that EPA could not find that 

CARB’s determination is arbitrary and 

capricious, even though the amended 

regulation includes short-term 

relaxation of in-use compliance 

requirements in the 2003 and 2004 

model years, for the reason that EPA 

does not have comparable federal 

emission standards that regulate in-use 

TRUs and TRU engines. This same 

reasoning applies to the TRU 

amendments clarifying the operational 

useful life of TRU flexibility engines, 

and the TRU amendments establishing 

new reporting and recordkeeping 

requirements for TRU original 

equipment manufacturers (OEMs). 

After evaluating the materials 

submitted by CARB, and since EPA has 

not adopted any standards or 

requirements for in-use TRU systems or 

engines, and based on no comments 

submitted to the record, EPA cannot 

find that California’s TRU amendments 

undermine California’s previous 

determination that its standards, in the 

aggregate, are at least as protective of 

public health and welfare as applicable 

federal standards. 


tkelley on DSK3SPTVN1PROD with NOTICES
38974 Federal Register / Vol. 78, No. 125 / Friday, June 28, 2013 / Notices 

29See, e.g., 75 FR 8056 (February 23, 2010) and 

70 FR 22034 (April 28, 2005). 

30CARB, ‘‘Request that Amendments to 

California’s Airborne Toxic Control Measure for InUse Diesel-Fueled Transport Refrigeration Units 

(TRU) and TRU Generator Sets and Facilities Where 

TRUs Operate Be Found Within the Scope of the 

Existing Authorization Granted Pursuant to Section 

209(e) of the Clean Air Act’’ EPA–HQ–OAR–2012– 

0741–0002 (May 13, 2011) at page 7. 

31 Id. at 8. 

32See, e.g., 43 FR 32182 (July 25, 1978). 

33See, e.g., 75 FR 8056 (February 23, 2010) and 

70 FR 22034 (April 28, 2005). 

2. Consistency With Section 202(a) of 

the Clean Air Act 

EPA has stated in the past that 

California standards and accompanying 

test procedures would be inconsistent 

with section 202(a) of the Clean Air Act 

if: (1) There is inadequate lead time to 

permit the development of technology 

necessary to meet those requirements, 

giving appropriate consideration to cost 

of compliance within the lead time 

provided, or (2) the federal and 

California test procedures impose 

inconsistent certification 

requirements.29

The first prong of EPA’s inquiry into 

consistency with section 202(a) of the 

Act depends upon technological 

feasibility. This requires EPA to 

evaluate 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. In its May 13, 

2011 letter, CARB states the 

amendments raise no new issue that 

disturb EPA’s earlier finding that the 

TRU in-use performance requirements 

are technologically feasible within the 

lead time provided for compliance. The 

amendments relax the initially adopted 

performance requirements, providing 

additional lead time for owners of all 

2003 model year TRU engines, 

regardless of horsepower, and for 2004 

model year TRUs with horsepower 

ratings less than 25 hp, to comply with 

ULETRU in-use standard. The 

amendments at issue have been adopted 

to provide owners with more 

compliance flexibility, and are needed 

because ULETRU compliance options 

presently are limited and relatively 

costly compared to LETRU compliance 

costs. The relaxation will provide 

sufficient time for market restrictions to 

abate and provide the full range of 

compliance options that CARB 

envisioned when the TRU ATCM was 

first adopted. In regard to the TRU 

amendments clarifying the operational 

useful life of TRU flexibility engines, 

CARB stated in its May 13, 2011 letter 

that ‘‘no issue of technological 

feasibility exists in that manufacturers, 

in having used the flexibility provisions 

of federal and state law, have never 

contended that use of such provisions 

was necessitated for reasons of technical 

feasibility—i.e., because engines 

certified to the most stringent emission 

tier could not be used with newly 

manufactured TRU systems. Moreover, 

the clarifying amendments ensure that 

existing owners’ TRU-flexibility engines 

will not be penalized.’’ 30 Additionally, 

the TRU amendments establishing new 

reporting and recordkeeping 

requirements for TRU OEMs do not 

impose any new concerns regarding the 

technical feasibility of engine or 

equipment manufacturers in meeting 

the in-use performance requirements of 

the TRU ATCM and do not affect the 

bases for which the authorization was 

initially granted.31

EPA received no comments indicating 

that CARB’s TRU amendments present 

lead-time or technology issues with 

respect to consistency under section 

202(a) and knows of no other evidence 

to that effect. Consequently, EPA cannot 

find that CARB’s amendments affect our 

prior determination regarding 

consistency with section 202(a), based 

on lead-time or technological feasibility 

issues. 

The second prong of EPA’s inquiry 

into consistency with section 202(a) of 

the Act depends on the compatibility of 

the federal and California test 

procedures. California’s standards and 

accompanying enforcement procedures 

would 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.32 As discussed above in 

section II.1, there are no comparable 

federal emission standards that regulate 

in-use TRUs and TRU engines. 

Therefore, this prong does not warrant 

further discussion. 

For the reasons set forth above, EPA 

confirms that California’s TRU 

amendments do not undermine our 

prior determination concerning 

consistency with section 202(a) of the 

Clean Air Act. 

3. New Issues 

EPA has stated in the past that if 

California promulgates amendments 

that raise new issues affecting 

previously granted waivers or 

authorizations, we would not confirm 

that those amendments are within the 

scope of previous authorizations.33

EPA does not believe that California’s 

TRU amendments relaxing the TRU inuse compliance requirements for all 

2003 and some 2004 model year TRUs 

and TRU generator sets, clarifying the 

operational useful life of TRU flexibility 

engines, and establishing new reporting 

and recordkeeping requirements for 

TRU OEMs raise any new issues with 

respect to our prior granting of the 

authorization. A relaxation of 

compliance requirements and a 

clarification of operational useful life of 

TRU flexibility engines are not new 

issues that substantively affect the 

previously granted authorization, and 

are consistent with the purpose and 

intent of the TRU ATCM and its 

previously granted authorization. 

Additionally, although there are ‘‘new’’ 

reporting and recordkeeping 

requirements for TRU OEMs, as stated 

above, they do not impose any new 

concerns regarding the technical 

feasibility of meeting the in-use 

performance requirements of the TRU 

ATCM and do not affect the bases for 

which the authorization was initially 

granted. Moreover, EPA did not receive 

any comments that CARB’s TRU 

amendments raised new issues affecting 

the previously granted authorization. 

Therefore, EPA cannot find that CARB’s 

TRU amendments raise new issues and 

consequently, cannot deny CARB’s 

request based on this criterion. 

For these reasons, EPA confirms that 

California’s TRU amendments raise no 

new issues with respect to the 

previously granted authorization. 

4. Within-the-Scope Confirmation 

For all the reasons set forth above, 

EPA can confirm that California’s 

amendments to its TRU ATCM are 

within the scope of the existing 

authorization. 

III. Decision 

The Administrator has delegated the 

authority to grant California a section 

209(e) authorization to the Assistant 

Administrator for Air and Radiation. 

This includes the authority to determine 

whether amendments to its regulations 

are within the scope of a prior 

authorization. CARB’s May 13, 2011 

letter seeks confirmation from EPA that 

CARB’s amendments to its TRU ATCM 

regulations are within the scope of its 

existing authorization. After evaluating 

CARB’s amendments, CARB’s 

submissions, and the public comments, 

EPA confirms that California’s 

regulatory amendments meet the three 

criteria that EPA uses to determine 

whether amendments by California are 

within the scope of previous 

authorizations. First, EPA agrees with 


tkelley on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 78, No. 125 / Friday, June 28, 2013 / Notices 38975 

CARB that the TRU amendments do not 

undermine California’s protectiveness 

determination from its previous 

authorization request. Second, EPA 

agrees with CARB that California’s TRU 

amendments do not undermine EPA’s 

prior determination regarding 

consistency with section 202(a) of the 

Act. Third, EPA agrees with CARB that 

California’s TRU amendments do not 

present any new issues which would 

affect the previous authorization for 

California’s TRU ATCM regulations. 

Therefore, I confirm that CARB’s TRU 

amendments are within the scope of 

EPA’s authorization for California’s TRU 

ATCM regulations. 

My decision will affect not only 

persons in California, but also 

manufacturers outside the State who 

must comply with California’s 

requirements in order to produce TRU 

systems for sale in California. For this 

reason, I determine and find that this is 

a final action of national applicability 

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

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

Act, judicial review of this final action 

may be sought only in the United States 

Court of Appeals for the District of 

Columbia Circuit. Petitions for review 

must be filed by August 27, 2013. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

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

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

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

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

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

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

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

Dated: June 19, 2013. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2013–15437 Filed 6–27–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[ER–FRL–9009–8] 

Environmental Impacts Statements; 

Notice of Availability 

Responsible Agency: Office of Federal 

Activities, General Information (202) 

564–7146 or http://www.epa.gov/ 

compliance/nepa/. 

Weekly receipt of Environmental Impact 

Statements 

Filed 06/17/2013 Through 06/21/2013 

Pursuant to 40 CFR 1506.9. 

Notice 

Section 309(a) of the Clean Air Act 

requires that EPA make public its 

comments on EISs issued by other 

Federal agencies. EPA’s comment letters 

on EISs are available at: http:// 

www.epa.gov/compliance/nepa/ 

eisdata.html. 

EIS No. 20130178, Draft EIS, USACE, 

FL, Port Everglades Harbor Navigation 

Improvements, Comment Period 

Ends: 08/13/2013, Contact: Terri 

Jordan-Sellers 904–232–1817. 

EIS No. 20130179, Draft EIS, BLM, WY, 

Buffalo Field Office Planning Area 

Resource Management Plan, Comment 

Period Ends: 09/28/2013, Contact: 

Thomas Bills 307–684–1133. 

EIS No. 20130180, Draft EIS, BLM, 

WAPA, 00, TransWest Express 

Transmission Project, Comment 

Period Ends: 09/25/2013, Contact: 

Sharon Knowlton 307–775–6124. 

The U.S. Department of the Interior’s 

Bureau of Land Management and the 

U.S. Department of Energy’s Western 

Area Power Administration are joint 

lead agencies for the above project. 

EIS No. 20130181, Final EIS, USAF, AK, 

Modernization and Enhancement of 

Ranges, Airspace and Training Areas 

in the Joint Pacific Alaska Range 

Complex in Alaska, Review Period 

Ends: 07/29/2013, Contact: Tania 

Bryan 907–552–2341. 

EIS No. 20130182, Draft EIS, EPA, LA, 

Designation of the Atchafalaya River 

Bar Channel Ocean Dredged Material 

Disposal Site West, Pursuant to 

Section 102(c) of the Marine 

Protection, Research, and Sanctuaries 

Act of 1972, Comment Period Ends: 

08/12/2013, Contact: Jessica Franks 

214–665–8335. 

EIS No. 20130183, Final Supplement, 

NRC, NY, Generic—License Renewal 

of Nuclear Plants, Supplement 38, 

Regarding Indian Point Nuclear 

Generating Unit Nos. 2 and 3, Review 

Period Ends: 07/29/2013, Contact: 

Lois James 301–415–3306. 

EIS No. 20130184, Draft Supplement, 

FHWA, AK, Gravina Access Project, 

Comment Period Ends: 08/13/2013, 

Contact: Kris Riesenberg 907–465– 

7413 EIS No. 20130185, Draft 

Supplement, Caltrans, CA, San Diego 

Freeway (I–405) Improvement Project, 

Comment Period Ends: 08/12/2013, 

Contact: Smita Deshpande 949–724– 

2000. 

Dated: June 25, 2013. 

Cliff Rader, 

Director, NEPA Compliance Division, Office 

of Federal Activities. 

[FR Doc. 2013–15612 Filed 6–27–13; 8:45 am] 

BILLING CODE 6560–50–P 

EXPORT-IMPORT BANK OF THE 

UNITED STATES 

Sunshine Act Meetings 

ACTION: Notice of a partially open 

meeting of the Board of Directors of the 

Export-Import Bank of the United 

States. 

TIME AND PLACE: Tuesday, July 9, 2013 

at 9:30 a.m. The meeting will be held at 

Ex-Im Bank in Room 321, 811 Vermont 

Avenue NW., Washington, DC 20571. 

OPEN AGENDA ITEMS: Item No. 1: 2013 

Review of the Content Policy. 

PUBLIC PARTICIPATION: The meeting will 

be open to public observation for Item 

No. 1 only. 

FURTHER INFORMATION: Members of the 

public who wish to attend the meeting 

should call Joyce Stone, Office of the 

Secretariat, 811 Vermont Avenue NW., 

Washington, DC 20571 (202) 565–3336 

by close of business Monday, July 8, 

2013. 

Cristopolis A. Dieguez, 

Program Specialist, Office of the General 

Counsel. 

[FR Doc. 2013–15702 Filed 6–26–13; 4:15 pm] 

BILLING CODE 6690–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

Sunshine Act Meetings 

Open Commission Meeting 

Thursday, June 27, 2013 

The Federal Communications 

Commission will hold an Open Meeting 

on the subjects listed below on 

Thursday, June 27, 2013. The meeting is 

scheduled to commence at 10:30 a.m. in 

Room TW–C305, at 445 12th Street SW., 

Washington, DC. 


tkelley on DSK3SPTVN1PROD with NOTICES