```

[Federal Register Volume 78, Number 125 (Friday, June 28, 2013)]
[Notices]
[Pages 38970-38975]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15437]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2012-0741; FRL-9828-3]

California State Nonroad Engine Pollution Control Standards; 
Within-the-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.

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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-r-Docket@epa.gov, 
the telephone number is (202) 566-1742, and the fax number is (202) 
566-9744. An electronic version of the public docket is available 
through the federal government's electronic public docket and comment 
system. You may access EPA dockets at http://www.regulations.gov. After 
opening the www.regulations.gov Web site, enter EPA HQ-OAR-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 Diesel-Fueled 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.
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    \1\ 74 FR 3030 (January 16, 2009).
    \2\ California Air Resources Board (``CARB''), ``Request for 
Authorization,'' May 13, 2011.
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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

[[Page 38971]]

TRU amendments are codified at title 13, California Code of 
Regulations, section 2477.\5\
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    \3\ Flexibility 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.
    \4\ CARB, ``Resolution 10-39,'' November 18, 2010; CARB, 
``Executive Order R-11-001,'' February 2, 2011.
    \5\ CARB, ``Final Regulation Order for title 13, California Code 
of Regulations, section 2477.''
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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\
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    \6\ Operational 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.
    \7\ 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.
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    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\
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    \8\ Id.
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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\
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    \9\ 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 3-4.
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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\
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    \10\ Id. at 4.
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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.
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    \11\ 78 FR 721 (January 4, 2013).
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    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

[[Page 38972]]

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\
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    \12\ Comments of the Manufacturers of Emission Controls 
Association (``MECA''), EPA-HQ-OAR-2012-0741-0003 (March 1, 2013).
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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\
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    \13\ States 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, Sec.  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).
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    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\
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    \17\ 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision 
Document at 64 (58 FR 4166 (January 13, 1993)).

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\

    \18\ 40 FR 23104; 58 FR 4166.
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    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

[[Page 38973]]

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

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\
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    \21\ Id.
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    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\
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    \22\ Id.
    \23\ Id.
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    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\
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    \24\ See, e.g., 40 FR 21102-103 (May 28, 1975).
---------------------------------------------------------------------------

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

    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\
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    \26\ Id. at 1126.
    \27\ Id. at 1126.
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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 within-the-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).
---------------------------------------------------------------------------

    \28\ CARB, ``Resolution 10-39,'' November 18, 2010.
---------------------------------------------------------------------------

    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.

[[Page 38974]]

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\
---------------------------------------------------------------------------

    \29\ See, e.g., 75 FR 8056 (February 23, 2010) and 70 FR 22034 
(April 28, 2005).
---------------------------------------------------------------------------

    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\
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    \30\ 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[rdquo,] EPA-HQ-OAR-2012-0741-0002 (May 13, 2011) at page 7.
    \31\ Id. at 8.
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    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.
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    \32\ See, e.g., 43 FR 32182 (July 25, 1978).
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    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\
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    \33\ See, e.g., 75 FR 8056 (February 23, 2010) and 70 FR 22034 
(April 28, 2005).
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    EPA does not believe that California's TRU amendments relaxing the 
TRU in-use 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

[[Page 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
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