Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Environmental Protection Agency

          - [EPA-HQ-OAR-2024-0030; FRL-12461-01-OAR]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice of decision.

# SUMMARY:

The Environmental Protection Agency (“EPA”) is providing notice of its decision granting the California Air Resources Board's (“CARB's”) request for an authorization of amendments to its In-Use Off-Road Diesel Fueled Fleets (“2022 Off-Road Fleets Amendments”) regulations. EPA's decision was issued under the authority of section 209 of the Clean Air Act (“CAA” or “Act”).

# DATES:

Petitions for review must be filed by March 11, 2025.

# ADDRESSES:

                        EPA has established a docket for this action under Docket ID EPA-HQ-OAR-2023-0581. All                               ( print page 1997)                            documents relied upon in making this decision, including those submitted to EPA by CARB, are contained in the public docket. Publicly available docket materials are available either electronically through                         *www.regulations.gov*                         or in hard copy at the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operation are 8:30 a.m. to 4:30 p.m.; generally, it is open Monday through Friday, except Federal holidays. The electronic mail (email) address for the EPA Docket is:                         *a-and-r-Docket@epa.gov*. 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*                         website, enter EPA-HQ-OAR-2023-0581 in the “Enter Keyword or ID” fill-in box to view documents in the record. Although a part of the official docket, the public docket does not include Confidential Business Information (“CBI”) or other information whose disclosure is restricted by statute.                    

                        EPA's Office of Transportation and Air Quality (“OTAQ”) maintains a web page that contains general information on its review of California waiver and authorization requests. Included on that page are links to prior waiver and authorization                         **Federal Register**                         notices; the page can be accessed at:                         *https://www.epa.gov/​state-and-local-transportation/​vehicle-emissions-california-waivers-and-authorizations*.                    

# FOR FURTHER INFORMATION CONTACT:

                        Brian Nelson, Office of Transportation and Air Quality, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, Michigan 48105. Telephone: 734-214-4278. Email:                         *California-Waivers-and-Authorizations@epa.gov*.                    

# SUPPLEMENTARY INFORMATION:

                    On April 26, 2024, EPA published a                     **Federal Register**                     notice announcing its receipt of CARB's authorization request. In that notice, EPA invited public comment on California's authorization request and an opportunity to present testimony at a public hearing.[1]                                          EPA held a public hearing on May 16, 2024, and the written comment period closed on June 19, 2024.[2]                                          EPA has considered all comments submitted to the public docket on this matter.                

                    On January 3, 2025, I signed a Decision Document granting California an authorization pursuant to section 209(e)(2)(A) of the CAA, as amended, 42 U.S.C. 7543(e)(2)(A), for CARB's 2022 amendments to CARB's In-Use Off-Road Diesel-Fueled Fleets regulations (the “2022 Off-Road Fleets Amendments”).[3]                                          The 2022 Off-Road Fleets Amendments primarily require fleets of in-use off-road diesel-fueled vehicles to phase out the operation of their oldest and highest-emitting diesel vehicles and prohibit such fleets from acquiring high-emitting vehicles. The Amendments also require fleets to fuel their vehicles with specified renewable diesel. Further, the Amendments establish administrative requirements for prime contractors and public works awarding bodies. The Amendments phase-in starting in 2024 through the end of 2036 and include changes to enhance enforceability and encourage the adoption of zero-emission technologies. A comprehensive description of California's 2022 Off-Road Fleets Amendments can be found in the Decision Document for this authorization and in materials submitted to the Docket by CARB.[4] 

                    CAA section 209(e)(1) 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.[5]                                          For all other nonroad engines (including “non-new” engines), States generally are preempted from adopting and enforcing standards and other requirements relating to the control of emissions, except that section 209(e)(2)(A) 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 enumerated findings. Specifically, EPA must deny authorization if the Administrator finds that (1) California's protectiveness determination (                    *i.e.,*                     that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards) is arbitrary and capricious, (2) California does not need such standards to meet compelling and extraordinary conditions, or (3) the California standards and accompanying enforcement procedures are not consistent with section 209 of the Act.                

                    On July 20, 1994, EPA promulgated a rule (the 1994 rule) interpreting the three criteria set forth in CAA section 209(e)(2)(A) that EPA must consider before granting any California authorization request for nonroad engine or vehicle emission standards.[6]                                          EPA revised these regulations in 1997.[7]                                          As stated in the preamble to the 1994 rule, EPA has interpreted the consistency inquiry under the third criterion, outlined above and set forth in section 209(e)(2)(A)(iii), 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) of the Act.[8]                                          In order to be consistent with section 209(a), California's nonroad standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engines. To be consistent with section 209(e)(1), California's nonroad standards and enforcement procedures must not attempt to regulate engine categories that are permanently preempted from State regulation. To determine consistency with section 209(b)(1)(C), EPA typically reviews nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests under section 209(b)(1)(C). That section provides that 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.                
      ( print page 1998)    
CARB determined that these standards and accompanying enforcement procedures do not cause California's standards, in the aggregate, to be less protective to public health and welfare than the applicable Federal standards. The administrative record, including information presented to me by parties opposing California's authorization request, did not demonstrate that California arbitrarily or capriciously reached this protectiveness determination. Therefore, based on the record, I cannot find California's determination to be arbitrary and capricious under section 209(e)(2)(A)(i).

CARB has demonstrated the existence of compelling and extraordinary conditions justifying the need for such State standards. The administrative record, including information presented to me by parties opposing California's authorization request, did not demonstrate that California does not need such State standards to meet compelling and extraordinary conditions. Thus, based on the record, I cannot deny the authorization based on section 209(e)(2)(A)(ii).

CARB has submitted information that its emission standards and test procedures are consistent with section 209(a), section 209(e)(1), and section 209(b)(1)(C) of the Act. The administrative record, including information presented to me by parties opposing California's authorization request, did not satisfy the burden of persuading EPA that the standards are not consistent with section 209. Thus, based on the record, I cannot deny the authorization based on section 209(e)(2)(A)(iii).

Accordingly, I hereby granted the authorization requested by California.

Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA. Petitions for review must be filed by March 11, 2025.

As with past authorization 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.

                    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).                

Jane Nishida,

Acting Administrator.

# Footnotes

1.                             89 FR 32422 (April 26, 2024).                    
        Back to Citation      

2.                             A transcript of the public hearing is located at EPA-HQ-OAR-2023-0581-0031, and all written comments are also located at regulations.gov at EPA-HQ-OAR-2023-0581.                    
        Back to Citation      

3.                             EPA's Decision Document is located at EPA-HQ-OAR-2023-0581. EPA's authorization decision encompasses all of the regulations in CARB's Off-Road Fleets Amendments. The full regulatory text for the amendments can be found in CARB's Final Regulation Order located at EPA-HQ-OAR-2023-0581-0012.                    
        Back to Citation      

4.                             CARB's Off-Road Fleets Authorization Support Document (EPA Docket: EPA-HQ-OAR-2023-0581-0027). A description of CARB's Off-Road Fleets Amendments can be found in the Authorization Support Document submitted by CARB along with associated attachments that can be found in the EPA docket for this matter.                    
        Back to Citation      

5.                             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 CAA section 209(e)(1) also applies to new locomotives or new engines used in locomotives.                    
        Back to Citation      

6.                             See “Air Pollution Control; Preemption of State Regulation for Nonroad Engine and Vehicle Standards,” 59 FR 36969 (July 20, 1994).                    
        Back to Citation      

7.                             See “Control of Air Pollution: Emission Standards for New Nonroad Compression-Ignition Engines at or Above 37 Kilowatts; Preemption of State Regulation for Nonroad Engine and Vehicle Standards; Amendments to Rules,” 62 FR 67733 (December 30, 1997). The applicable regulations are now found in 40 CFR part 1074, subpart B, Part 1074.                    
        Back to Citation      

8.                             EPA has interpreted section 209(b)(1)(C) in the context of section 209(b) motor vehicle waivers.                    
        Back to Citation      

[FR Doc. 2025-00252 Filed 1-8-25; 8:45 am]

BILLING CODE 6560-50-P