
[Federal Register Volume 77, Number 235 (Thursday, December 6, 2012)]
[Notices]
[Pages 72851-72856]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29513]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9758-1]


California State Nonroad Engine Pollution Control Standards; 
Portable Equipment Registration Program; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: EPA is granting authorization for the California Air Resources 
Board's (CARB's) amendments to its Portable Equipment Registration 
Program (PERP), and confirming that certain portions of CARB's PERP 
program is within the scope of previous EPA authorizations. PERP is a 
voluntary statewide program that enables registration of nonroad 
engines and equipment that operate at multiple locations across 
California, so that the engine and equipment owners can operate 
throughout California without obtaining permits from local air 
pollution control districts.

DATES: Petitions for review must be filed by February 4, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2011-0102. All 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 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-2011-0102 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 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: Kristien G. Knapp, Attorney-Advisor, 
Compliance Division, Office of Transportation and Air Quality, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J) NW., 
Washington, DC 20460. Telephone: (202) 343-9949. Fax: (202) 343-2800. 
Email: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

A. California's PERP Authorization Request

    In a letter dated December 5, 2008, CARB submitted to EPA its 
request pursuant to section 209 of the Clean Air Act (``CAA'' or ``the 
Act''), regarding its Portable Equipment Registration Program 
(``PERP'').\1\ The PERP was

[[Page 72852]]

established by CARB as a voluntary program to address the concern that 
equipment owners who moved equipment within California often faced the 
need to obtain preconstruction and operating permits from different 
local air pollution control districts in the state.\2\ The PERP allows 
voluntary registration of either spark-ignition (SI) or compression-
ignition (CI) portable piston driven internal combustion engines or 
portable equipment units. Under the PERP, once registered, equipment is 
no longer subject to local air pollution control district permitting 
requirements. Rather, registration with the PERP allows equipment to be 
moved more freely within the state. ``Portable'' as defined within 
CARB's PERP program, means equipment that is designed and capable of 
being transported from one location to another. Not all equipment is 
eligible for registration in the PERP; generally, engines used for 
propulsion, as part of a stationary source, or used to produce power 
into the California electricity grid are not eligible for registration 
under the PERP. The PERP sets out four general requirements applicable 
to all registered equipment: (1) Registered equipment may not operate 
in a manner that causes a nuisance; (2) registered equipment may not 
interfere with attainment of federal or state air quality standards; 
(3) registered equipment may not cause an exceedance of an ambient air 
quality standard; and (4) owners of registered equipment (or combined 
operation of such equipment) must provide notice and comply with 
requirements for prevention of significant deterioration (PSD) if it 
would constitute a major modification of that source. The PERP also has 
specific requirements for both registered engines and certain types of 
equipment units. For engines, the specific requirements include fuel-
type restrictions, opacity limits, mass emissions and emission 
concentration limits, and metering requirements, based on engine size. 
With limited exceptions, after January 1, 2006, only engines that meet 
the most stringent CARB or EPA emission standards in effect at the time 
of registration are allowed in the PERP. Registered compression-
ignition engines must also meet requirements of the CARB Airborne Toxic 
Control Measure (ATCM) for in-use portable diesel-fueled engines 50 
brake-horsepower (hp) and greater portable engines (CARB's portable 
diesel equipment (PDE) regulations).\3\ For equipment, the PERP sets 
daily and annual mass emission limits for all registered equipment 
units (exclusive of engine emissions). Certain types of equipment, such 
as concrete batch plants and rock crushing and screening plants, have 
specific, additional requirements, primarily aimed to minimize 
particulate emissions associated with their operation. The PERP also 
includes regulatory requirements for recordkeeping, reporting, 
inspection, testing, fee collection, and enforcement.
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    \1\ California Air Resources Board (CARB), Request for 
Authorization, December 5, 2008, EPA-HQ-OAR-2011-0102-0002.
    \2\ CARB notes in its request that ``For the record, CARB 
believes that because participation in the Statewide Program is 
voluntary, the emission standards for registered nonroad engines are 
not subject to the [Clean Air Act] Sec.  209 preemption. Since the 
emission standards apply only if an owner voluntarily elects to 
register, the standards do not constitute `standards and other 
requirements' within the meaning of section 209(e), which CARB 
believes only applies to mandated requirements. However, without 
prejudice to CARB's position and to avoid further delay in obtaining 
federal authorization, CARB submits this request.'' EPA takes no 
position here on CARB's beliefs with respect to its need for 
authorization of a voluntary program.
    \3\ CARB has requested an authorization for its air toxic 
control measure for portable diesel engines. EPA announced the 
opportunity for public hearing and public comment on that request by 
a Federal Register notice published February 9, 2011. See 76 FR 7196 
(February 9, 2011).
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    In 1995, the California Legislature passed Assembly Bill (AB) 531 
to address a perceived problem with the use of portable equipment and 
associated engines that were operated in more than one air pollution 
control district.\4\ CARB was directed by AB 531 to create and 
administer a voluntary statewide program for the registration of 
portable equipment.\5\ In 1997, CARB adopted regulations creating the 
PERP,\6\ which was amended by CARB in 1998, 2005, 2006, and March 
2007.\7\ CARB adopted Resolution 07-9 on March 22, 2007, which amended 
the PERP, after a public hearing held earlier that month.\8\ Executive 
Order G-07-013 was issued by the Executive Officer, and the regulations 
were submitted to the Office of Administrative Law (OAL), on July 31, 
2007.\9\ On September 12, 2007, OAL approved the regulations and they 
became operative the same day.\10\
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    \4\ CARB, Request for Authorization at 2; California Health and 
Safety Code (CA HSC) Sec.  41750.
    \5\ CA HSC Sec.  41752.
    \6\ California Code of Regulations, title 13 Sec. Sec.  2450 
through 2465.
    \7\ CARB, Request for Authorization at 3.
    \8\ Id.; CARB, Resolution 07-9 at 1.
    \9\ CARB, Resolution 07-9 at 1.
    \10\ Id.
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    CARB has requested that EPA confirm that parts of the voluntary 
PERP for portable engines and equipment fall within the scope of 
previously issued authorizations or submitted authorization requests 
(i.e., the ATCM for Portable Diesel Engines),\11\ and that the 
Administrator grant a new authorization for those emission standards 
not otherwise covered by a within-the-scope confirmation.
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    \11\ See California State Nonroad Engine Pollution Control 
Standards; Authorization of State Standards for 1996 and later New 
Diesel Cycle Engines 175 Horsepower and Greater, 60 FR 48981 
(September 21, 1995); California State Nonroad Engine and Vehicle 
Pollution Control Standards; Authorization of Large Off-Road Spark-
Ignition Engine Standards, Notice of Decision, 71 FR 29621 (May 23, 
2006).
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B. 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. States are also preempted 
from adopting and enforcing standards and other requirements related to 
the control of emissions from non-new nonroad engines or vehicles. 
Section 209(e)(2) requires the Administrator, after notice and 
opportunity for public hearing, to authorize California to enforce such 
standards and other requirements, unless EPA makes one of three 
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.\12\ EPA later revised these regulations in 1997.\13\ As 
stated in the preamble to the 1994 rule, EPA has historically

[[Page 72853]]

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).\14\
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    \12\ 59 FR 36969 (July 20, 1994).
    \13\ 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.
    \14\ 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 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. Pursuant to section 209(b)(1)(C), the 
Administrator shall not grant California a motor vehicle waiver if she 
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.
    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 amendments 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.

C. 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.\15\
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    \15\ 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.'' \16\
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    \16\ 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.\17\ 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.\18\
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    \17\ Id.
    \18\ 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.'' \19\
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    \19\ See, e.g., 40 FR 21102-103 (May 28, 1975).
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    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 it's 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.\20\

    \20\ MEMA I, 627 F.2d at 1121.
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    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.' '' \21\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \22\
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    \21\ Id. at 1126.
    \22\ Id.
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D. EPA's Administrative Process in Consideration of CARB's PERP Request

    Upon review of CARB's request, EPA offered an opportunity for a 
public hearing, and requested written comment on issues relevant to a 
full section 209(e) authorization analysis, by publication of a Federal 
Register notice on February 9, 2011.\23\ Specifically, we requested 
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 such standards to meet compelling and extraordinary 
conditions, and (c) whether California's standards and accompanying 
enforcement procedures are consistent with section 209 of the Act.
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    \23\ 76 FR 7194 (February 9, 2011).
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    In response to EPA's February 9, 2011 Federal Register notice,\24\ 
EPA received one request for a hearing, which was

[[Page 72854]]

later withdrawn, and no public comments.\25\
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    \24\ Id.
    \25\ EPA, ``Memorandum from Brianna Iddings to Docket ID EPA-HQ-
OAR-2011-0102,'' EPA-HQ-OAR-2011-0102-0014.
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II. Discussion

A. Full Authorization Analysis

1. California's Protectiveness Determination
    Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that California was arbitrary and 
capricious in its determination that its standards are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards. CARB made a protectiveness determination 
in Resolution 07-9, finding that California's PERP is, ``in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards.'' \26\ CARB presents that California's 
PERP is at least as stringent as the federal standards: ``since no 
federal standards exist for in-use nonroad engines,\27\ the emissions 
standards [submitted] are unquestionably as protective of comparable 
federal regulations.'' \28\
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    \26\ CARB, Resolution 07-9 at 5.
    \27\ CAA Sec.  213.
    \28\ CARB, Request for Authorization at 14.
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    EPA did not receive any comments challenging California's 
protectiveness determination. Therefore, based on the record before us, 
EPA finds that opponents of the authorization have not shown that 
California was arbitrary and capricious in its determination that its 
standards are, in the aggregate, at least as protective of public 
health and welfare as applicable federal standards.
2. Need for California Standards To Meet Compelling and Extraordinary 
Conditions
    Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that California ``does not need such 
California standards to meet compelling and extraordinary conditions * 
* *.'' This criterion restricts EPA's inquiry to whether California 
needs its own mobile source pollution program to meet compelling and 
extraordinary conditions, and not whether any given standards are 
necessary to meet such conditions.\29\ As discussed above, for over 
forty years CARB has repeatedly demonstrated the need for its mobile 
source emissions program to address compelling and extraordinary 
conditions in California. In its Resolution 07-9, CARB affirmed its 
longstanding position that, in order to fight its serious air pollution 
problems, ``California needs its off-road engine emission standards to 
meet compelling and extraordinary conditions.'' \30\ Likewise, EPA has 
consistently recognized that California continues to have the same 
``geographical and climatic conditions that, when combined with the 
large numbers and high concentrations of automobiles, create serious 
pollution problems.'' \31\ Furthermore, no commenter has presented any 
argument or evidence to suggest that California no longer needs a 
separate mobile source emissions program to address compelling and 
extraordinary conditions in California. Therefore, EPA has determined 
that we cannot deny California an authorization for its PERP under 
section 209(e)(2)(ii).
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    \29\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \30\ CARB, Resolution 07-9 at 5.
    \31\ 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693 
(June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042 
(September 8, 2008).
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3. Consistency With Section 209 of the Clean Air Act
    Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant 
an authorization if California's standards and enforcement procedures 
are not consistent with section 209. As described above, EPA has 
historically evaluated this criterion for consistency with sections 
209(a), 209(e)(1), and 209(b)(1)(C).
a. Consistency With Section 209(a)
    To be consistent with section 209(a) of the Clean Air Act, 
California's PERP must not apply to new motor vehicles or new motor 
vehicle engines. California's PERP expressly applies only to portable 
vehicles and expressly precludes registration of engines used to propel 
motor vehicles as defined by section 216(2) of the Clean Air Act.\32\ 
No commenter presented otherwise. Therefore, EPA cannot deny 
California's request on the basis that California's PERP is not 
consistent with section 209(a).
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    \32\ CARB, Request for Authorization at 12.
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b. Consistency With Section 209(e)(1)
    To be consistent with section 209(e)(1) of the Clean Air Act, 
California's PERP must not affect new farming or construction vehicles 
or engines that are below 175 horsepower, or new locomotives or their 
engines. CARB presents that ``locomotive and locomotive engines cannot 
be registered in the Statewide Program.'' \33\ CARB also presents that 
new farm and construction equipment do not fall under the program.\34\ 
No commenter presented otherwise. Therefore, EPA cannot deny 
California's request on the basis that California's PERP is not 
consistent with section 209(e)(1).
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    \33\ Id. at 13.
    \34\ Id.
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c. Consistency With Section 209(b)(1)(C)
    The requirement that California's standards be consistent with 
section 209(b)(1)(C) of the Clean Air Act effectively requires 
consistency with section 202(a) of the Act. California standards are 
inconsistent with section 202(a) of the Act if there is inadequate 
lead-time to permit the development of technology necessary to meet 
those requirements, giving appropriate consideration to the cost of 
compliance within that timeframe. California's accompanying enforcement 
procedures would also be inconsistent with section 202(a) if federal 
and California test procedures conflicted. The scope of EPA's review of 
whether California's action is consistent with section 202(a) is 
narrow. The determination is limited to whether those opposed to the 
authorization or waiver have met their burden of establishing that 
California's standards are technologically infeasible, or that 
California's test procedures impose requirements inconsistent with the 
federal test procedures.\35\
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    \35\ MEMA I, 627 F.2d at 1126.
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i. Technological Feasibility
    Congress has stated that the consistency requirement of section 
202(a) relates to technological feasibility.\36\ Section 202(a)(2) 
states, in part, that any regulation promulgated under its authority 
``shall take effect after such period as the Administrator finds 
necessary to permit the development and application of the requisite 
technology, giving appropriate consideration to the cost of compliance 
within such period.'' Section 202(a) thus requires the Administrator to 
first determine 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. The latter scenario 
also requires the Administrator to decide whether the cost of 
developing and applying the technology within that time is feasible. 
Previous EPA waivers are in accord with this position.\37\ For example, 
a previous EPA waiver decision considered California's standards and 
enforcement procedures to be consistent with section 202(a)

[[Page 72855]]

because adequate technology existed as well as adequate lead-time to 
implement that technology.\38\ Subsequently, Congress has stated that, 
generally, EPA's construction of the waiver provision has been 
consistent with congressional intent.\39\
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    \36\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \37\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
    \38\ 41 FR 44209 (October 7, 1976).
    \39\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
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    CARB presents that the technology required to comply with its PERP 
has already been established and is currently available.\40\ CARB has 
determined that ``participants in the Statewide Program can pass on any 
compliance costs without incurring significant economic disruption.'' 
\41\ CARB further stresses that admission into PERP is entirely 
voluntary, so any costs associated with compliance of the program are 
voluntarily incurred by those that choose to participate in the 
program.\42\
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    \40\ CARB, Request for Authorization at 16-17.
    \41\ Id. at 16.
    \42\ Id.
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    CARB staff estimate ``that the total economic impact of the 
proposed amendments to the Statewide PERP Regulation to affect private 
businesses and public agencies is $6.6 million over its lifetime ($6.1 
million for private businesses and $0.5 million for public agencies).'' 
\43\ The economic impact comes from fees for non-compliant engines. 
However, if affected parties were instead required to purchase new 
engines that meet current emission standards, the overall cost to those 
parties would be around $250 million.\44\ The PERP thus results in an 
estimated savings of $243.4 million.\45\
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    \43\ CARB Staff Report: Initial Statement of Reasons for the 
Proposed Amendments to the Statewide Portable Equipment Registration 
Program Regulation and Airborne Toxic Control Measure for Diesel 
Particulate Matter From Portable Engines at vi.-vii.
    \44\ Id. at vii.
    \45\ Id.
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    EPA did not receive any comments suggesting that CARB's standards 
and test procedures are technologically infeasible. Consequently, based 
on the record, EPA cannot deny California's authorization based on 
technological infeasibility.
ii. Consistency of Certification Procedures
    California's standards and accompanying enforcement procedures 
would also 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.\46\ CARB 
presents that the PERP requirements raise no issue regarding test 
procedure consistency because the tests procedures incorporated into 
the program are existing EPA and CARB test procedures.\47\ Either 
agency's test procedures may be used to demonstrate compliance with the 
program.\48\
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    \46\ See, e.g., 43 FR 32182 (July 25, 1978).
    \47\ CARB, Request for Authorization at 17.
    \48\ Id.
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    EPA received no comments suggesting that CARB's PERP poses any test 
procedure consistency problem. Therefore, based on the record, EPA 
cannot find that CARB's testing procedures are inconsistent with 
section 202(a). Consequently, EPA cannot deny CARB's request based on 
this criterion.
d. Full Authorization Determination for California's PERP Regulations
    After a review of the information submitted by CARB, EPA finds that 
those opposing California's request have not met the burden of 
demonstrating that authorization for California's PERP should be denied 
based on any of the statutory criteria of section 209(e)(2). For this 
reason, EPA finds that an authorization for California's PERP should be 
granted.

B. Within-the Scope Confirmation

    In our February 9, 2011 Federal Register notice, 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 waiver analysis. EPA 
received no public comment in response to our request, including no 
public comments on whether EPA should consider CARB's request according 
to a within-the-scope analysis of full authorization analysis. 
Therefore, we have evaluated CARB's request by application of our 
traditional analysis of authorizations. At the same time, CARB believes 
it meets the requirements for a within-the-scope confirmation to the 
extent that EPA has already authorized the numeric emission standards 
referenced in its PERP program. According to our analysis, as discussed 
below, we can confirm that the PERP program is within the scope of 
previous authorizations issued on September 21, 1995 (60 FR 48981), May 
23, 2006 (71 FR 29621), and April 4, 2012 (75 FR 8056).
    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 amendments 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 209 of the Act. Third, the amended regulations 
must not raise any ``new issues'' affecting EPA's prior authorizations.
    EPA issued an authorization of CARB's diesel emission standards for 
1996 and later new diesel cycle engines 175 horsepower and greater on 
September 21, 1995 (60 FR 48981). EPA also issued authorizations 
applicable to CARB's large off-road spark-ignition engine standards on 
May 23, 2006 (71 FR 29621) and April 4, 2012 (75 FR 8056). As discussed 
above, the first two within-the-scope criteria regarding protectiveness 
and consistency with section 209 of the Act have been established for 
the PERP program. Additionally, because registration to such standards 
does not appear to present a new issue, and no commenter presented 
otherwise, EPA can confirm that CARB's PERP program is within the scope 
of the above-noted EPA authorizations, to the extent that the PERP 
requirements are reliant upon the emission standards at the heart of 
the above-noted authorizations.\49\ To the extent that CARB's PERP 
program allows registration of engines and equipment to emission 
standards that are not the subject of a previous EPA authorization, EPA 
cannot confirm they are within the scope as consideration of those 
provisions present ``new issues'' that have not previously been the 
subject of an authorization.
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    \49\ To the extent that any provision in CARB's PERP program, 
which is herein confirmed as within the scope, is later construed as 
not within-the-scope of EPA's prior authorizations, then a full 
authorization is appropriate and granted based upon the full 
authorization evaluation as discussed above.
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III. Decision

    The Administrator has delegated the authority to grant California 
section 209(e) authorizations to the Assistant Administrator for Air 
and Radiation. After evaluating California's PERP amendments, and 
CARB's submissions, EPA is granting an authorization to California for 
its PERP amendments. To the extent that the PERP program allows 
registration of equipment for which EPA has already issued 
authorizations to California, EPA is confirming that those

[[Page 72856]]

provisions are within the scope of its previous authorizations.
    My decision will affect not only persons in California, but also 
entities outside the State who must comply with California's 
requirements. 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 February 4, 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: November 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-29513 Filed 12-5-12; 8:45 am]
BILLING CODE 6560-50-P


