
[Federal Register Volume 81, Number 47 (Thursday, March 10, 2016)]
[Proposed Rules]
[Pages 12637-12641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05278]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0819; FRL-9943-47-Region 9]


Revisions to the California State Implementation Plan; South 
Coast Air Quality Management District; Control of Oxides of Nitrogen 
Emissions From Off-Road Diesel Vehicles

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve South Coast Air Quality Management District's (SCAQMD or 
District) Rule 2449, Control of Oxides of Nitrogen Emissions from Off-
Road Diesel Vehicles, which adopts by reference title 13, chapter 9, 
section 2449.2 of the California Code of Regulations (CCR), ``Surplus 
Off-Road Opt-In for NOX (SOON) Program,'' as part of the 
SCAQMD portion of the California State Implementation Plan (SIP). 
SCAQMD Rule 2449 requires certain in-use off-road vehicle fleets to 
meet more stringent requirements in the South Coast area when funding 
is provided by the District in order to achieve additional reductions 
of oxides of Nitrogen (NOX). We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Any comments must arrive by April 11, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2015-0819 at http://www.regulations.gov, or via email to 
lo.doris@epa.gov. For comments submitted at Regulations.gov, follow the 
online instructions for submitting comments. Once submitted, comments 
cannot be edited or removed from Regulations.gov. For either manner of 
submission, the EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972-
3959, lo.doris@epa.gov.

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

Table of Contents

I. Background
II. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of the rule?
    C. What is the purpose of the submitted rule?
    D. What do the Off-Road Regulation and Rule 2449 require?
III. The EPA's Evaluation of the State's Submittal
    A. How is the EPA evaluating the rule?
    B. Does Rule 2449 meet CAA SIP evaluation criteria?
    1. Did the SCAQMD and CARB provide adequate public notice and 
comment periods?
    2. Do the SCAQMD and CARB have adequate legal authority to 
implement the rule?
    3. Is the rule enforceable as required under CAA section 
110(a)(2)?
    4. Does the rule interfere with reasonable further progress and 
attainment or any other applicable requirement of the Act?
    5. Will the State and the SCAQMD have adequate personnel and 
funding for the rule?
    6. Does the rule meet the RACM and BACM requirements under CAA 
sections 172(c)(1) and 189?
    7. The EPA's Rule Evaluation Conclusion
IV. Proposed Action and Public Comment
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

    The California Air Resources Board's (CARB) Off-Road Diesel-Fueled 
Fleets Regulation (13 CCR sections 2449, 2449.1 and 2449.2) applies to 
fleets with nonroad \1\ compression-ignition vehicles and equipment 
greater than 25 horsepower (hp). Sections 2449 and 2449.1 (collectively 
the ``Off-Road

[[Page 12638]]

Regulation'') require fleet operators to meet a progressively more 
stringent combined particulate matter (PM) and NOX standard, 
or to reduce emissions through technology upgrades such as retrofit or 
replacement. The Off-Road Regulation was initially approved by CARB on 
July 26, 2007 and was subsequently amended in December 2010.
---------------------------------------------------------------------------

    \1\ The Clean Air Act refers to these engines as ``nonroad'' 
engines and the State of California uses the term ``off-road'' 
engines. The terms ``nonroad'' and ``off-road'' are used 
interchangeably in this rule.
---------------------------------------------------------------------------

    In conjunction with the Off-Road Regulation, CARB also adopted an 
``opt-in'' provision that allows local air districts to achieve 
additional reductions of NOX emissions by introducing 
cleaner engines or control devices into a fleet with incentive funding 
(see 13 CCR section 2449.2, Surplus Off-Road Opt-In for NOX 
Program (also referred to as the ``CARB SOON Program'' in today's 
proposed rule)). Under this provision, any California air district can 
``opt-in'' to the CARB SOON Program to achieve reductions of 
NOX emissions from in-use nonroad diesel-fueled vehicles 
that are surplus to what is required by CARB's Off-Road Regulation. In 
order to participate in the CARB SOON Program, a district's governing 
board must hold a public hearing, vote to ``opt-in'' to the CARB SOON 
Program, and decide whether to make the program voluntary or mandatory.
    On May 2, 2008 the SCAQMD governing board held a public hearing at 
which it voted to ``opt-in'' to the CARB SOON Program as a mandatory 
requirement and adopted Rule 2449, Control of Oxides of Nitrogen 
Emissions from Off-Road Diesel Vehicles, which includes by reference 
the CARB SOON Program. The SCAQMD also adopted additional Rule 2449 
Administrative Guidelines (May 2008) as required by the CARB SOON 
Program to implement the program in the South Coast area. On July 11, 
2014, the SCAQMD amended Rule 2449 to update the rule's reference to 
the CARB SOON Program, which was amended by CARB in December 2011. The 
SCAQMD Rule 2449 adopts the provisions of the CARB SOON Program found 
under 13 CCR, section 2449.2 into the SCAQMD's rule book and makes the 
CARB SOON Program a mandatory requirement for in-use off-road sources 
located in the South Coast area.\2\
---------------------------------------------------------------------------

    \2\ Unless otherwise indicated, references in this notice to 
Rule 2449 include the CARB Soon Program, as implemented through Rule 
2449.
---------------------------------------------------------------------------

    CARB's Off-Road Regulation and the CARB SOON Program are subject to 
section 209(e) of the Clean Air Act (CAA or the Act), which generally 
preempts States from adopting and enforcing standards and other 
requirements relating to the control of emissions from nonroad engines 
(see CAA section 209(e)(1) and Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075 
(D.C. Cir. 1996)). However, CAA section 209(e)(2)(A) requires the EPA 
to authorize California to adopt and enforce standards and other 
requirements relating to the control of emissions from certain nonroad 
vehicles or engines, unless the EPA makes one of three enumerated 
findings. On September 20, 2013 the EPA authorized CARB to enforce the 
Off-Road Regulation and the CARB SOON Program (collectively ``Fleet 
Requirements'') (see 78 FR 58090-58121, September 20, 2013).
    On November 12, 2015, the EPA proposed to approve the Fleet 
Requirements into the California SIP (see 80 FR 69915).\3\
---------------------------------------------------------------------------

    \3\ In particular, the EPA proposed to approve 13 CCR sections 
2449 (excluding subsection 2449(d)(2)), 2449.1, and 2449.2 into the 
SIP. 80 FR 69918, Table 1.
---------------------------------------------------------------------------

II. The State's Submittal

A. What rule did the State submit?

    On July 18, 2008, the State of California submitted SCAQMD Rule 
2449, ``Control of Oxides of Nitrogen Emissions from Off-Road 
Vehicles,'' which was adopted by the District on May 2, 2008 (see July 
18, 2008 letter from Michael H. Scheible, Deputy Executive Officer, 
CARB, to Wayne Nastri, Regional Administrator, EPA Region 9, with 
attachments).
    On September 5, 2014, the state submitted a revision to Rule 2449 
adopted by the District on July 11, 2014. The submittal made a minor 
administrative revision to the numbering of the referenced CARB SOON 
Program, which was revised by CARB in December 2011, from section 
2449.3 to section 2449.2 (see September 5, 2014 letter to Jared 
Blumenfeld, Regional Administrator, EPA Region 9, from Richard W. 
Corey, Executive Officer, Air Resources Board with attachments).
    The July 18, 2008 submittal was deemed complete by operation of law 
under CAA section 110(k)(1)(B) on January 18, 2009. The September 5, 
2014 submittal was deemed complete by operation of law under CAA 
section 110(k)(1)(B) on March 5, 2015.

B. Are there other versions of the rule?

    There are no previous versions of Rule 2449 in the SIP for the 
SCAQMD.

C. What is the purpose of the submitted rule?

    NOX helps produce ground-level ozone, smog and fine 
particulate matter (PM2.5), which harm human health and the 
environment. Section 110(a) of the CAA requires States to submit 
regulations that control NOX emissions. In addition, section 
172(c)(1) of the Act requires implementation of all reasonably 
available control measures (RACM) as expeditiously as practicable in 
nonattainment areas. Because the South Coast area is designated 
nonattainment for the 1-hour ozone standard, the 1997 annual and 24-
hour PM2.5 standard, the 2006 24-hour PM2.5 
standard, the 2012 annual PM2.5 standard, the 1997 8-hour 
ozone standard and the 2008 8-hour ozone standard (see 40 CFR part 
81.305), CARB and the SCAQMD must implement RACM for NOX 
(among other pollutants) under CAA section 172(c)(1). In addition, 
under subpart 4 of the CAA, serious PM2.5 areas are required 
to adopt best available control measures (BACM) for PM2.5 
and its precursors.\4\ On January 13, 2016, the EPA reclassified the 
South Coast PM2.5 nonattainment area as a Serious 
nonattainment area for the 2006 PM2.5 NAAQS (81 FR 1514).
---------------------------------------------------------------------------

    \4\ The EPA generally takes action on a RACM or BACM 
demonstration as part of our action on the State's attainment 
demonstration for the relevant NAAQS.
---------------------------------------------------------------------------

    Off-road diesel vehicles collectively represent one of the largest 
sources of NOX emissions in the South Coast Air Basin.\5\ 
The purpose of Rule 2449 is to achieve surplus NOX 
reductions from this source category beyond those required under CARB's 
Off-Road Regulation with funding provided by the SCAQMD. The SCAQMD's 
2012 Air Quality Management Plan (AQMP) relies on NOX 
reductions from Rule 2449 to attain the one-hour and 1997 eight-hour 
ozone NAAQS.\6\ Rule 2449 is expected to achieve 7.5 tons per day (tpd) 
of NOX reductions in 2023.\7\
---------------------------------------------------------------------------

    \5\ See, e.g., Draft Staff Report, Proposed Amended Rule 2449--
Control of Oxides of Nitrogen Emissions from Off-Road Diesel 
Vehicles, page 1 (May 2014).
    \6\ See 2012 AQMP, Table 4-6, page 4-33, OFFRD-01, Extension of 
the SOON Provision for Construction/Industrial Equipment 
[NOX] and Appendix IV-B, pages IV-B-30 thru IV-B-32.
    \7\ Id. The EPA is not proposing to approve the emission 
reductions in today's proposed rule. Emission reductions or SIP 
credit from Rule 2449 will be addressed in future EPA actions on 
attainment plans.
---------------------------------------------------------------------------

D. What do the Off-Road Regulation and Rule 2449 require?

    In general, CARB's Off-Road Regulation applies to all diesel-fueled 
off-road fleet equipment owners operating in the State of California. 
The Off-Road Regulation has performance requirements depending on the 
size of the fleet (i.e., a large fleet is defined as a fleet having 
greater than 5,000 horsepower (hp), a small fleet has less

[[Page 12639]]

than or equal to 2,500 hp, and a medium fleet is in between) \8\ and 
provides calculation methodologies for determining a fleet average 
index and a fleet average target rate. Each year, each subject fleet 
must demonstrate that its fleet average index was less than or equal to 
the applicable fleet average target rate or that it met Best Available 
Control Technology (BACT) requirements by performing turnover or 
installing verified diesel emission control strategies (VDECS).\9\ As 
discussed above, the EPA has authorized CARB to implement the Off-Road 
Regulation under CAA section 209(e) (78 FR 58090) and has proposed to 
approve the Off-Road Regulation into the California SIP (80 FR 69915).
---------------------------------------------------------------------------

    \8\ See CARB's Off-Road Regulation, section 2449(c)(24), 
definition of ``Fleet size category.''
    \9\ See CARB's Off-Road Regulation, section 2449.1(a) Fleet 
Average Requirements, 2449.1(b) BACT Requirements, and Appendix A 
with table of ``Emission Factors by Horsepower and Year (g/bhp-
hr).''
---------------------------------------------------------------------------

    SCAQMD Rule 2449 focuses on the largest fleets with the oldest 
engines and requires these fleets to meet more stringent fleet average 
targets than those required by section 2449.1(a) of the Off-Road 
Regulation. In general, Rule 2449 applies to the owners \10\ of off-
road vehicles that operate within the SCAQMD and that are part of 
fleets with more than 40 percent Tier 0 and Tier 1 vehicles \11\ (as of 
January 1, 2008) and with more than 20,000 horsepower (hp) in maximum 
power on a statewide basis (excluding the hp from engines in two-engine 
vehicles and the hp from single cranes formerly subject to the Cargo 
Handling Equipment Regulation).\12\
---------------------------------------------------------------------------

    \10\ Most provisions of the CARB SOON Program apply to fleets 
rather than fleet owners or operators (see e.g. sections 
2449.2(b)(2) and (d)(1)). However, SCAQMD Rule 2449 makes these 
requirements applicable to the owners of off-road vehicles that 
operate in SCAQMD and meet the criteria in 13 CCR 2449.2(b)(2).
    \11\ See 13 CCR section 2449(c)(48) and (49) for definitions of 
Tier 0 and Tier 1 engines.
    \12\ See 13 CCR section 2449.2(b)(2), adopted by reference under 
SCAQMD Rule 2449.
---------------------------------------------------------------------------

    Once the District issues a solicitation for applications for 
funding under Rule 2449, subject fleet owners are required to meet the 
more stringent fleet average targets required by the CARB SOON Program 
or apply for incentive funding for a sufficient number of projects 
(e.g., repowers, purchases, replacements) to meet the CARB SOON Program 
fleet average targets (reproduced in Table 1 below).\13\
---------------------------------------------------------------------------

    \13\ See 13 CCR section 2449.2(d). Thus, for example, the Off-
Road Regulation requires ``large'' fleets to meet a fleet average 
target of 1.5 g/bhp-hr for 175-750 hp engines and 3.4 g/bhp-hr for 
greater than 750 hp engines in the year 2023, whereas Rule 2449 and 
the CARB SOON Program require a fleet average target of 0.7 g/bhp-hr 
for 175-750 hp engines and 2.7 g/bhp-hr for greater than 750 hp 
engines in 2023.

                            Table 1--SOON Target for Each Max Hp Group for Use in Calculating SOON Fleet Average Target Rates
                                                                       [g/bhp-hr]
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Compliance date: Jan 1 of year             25-49 hp     50-74 hp     75-99 hp    100-174 hp   175-299 hp   300-599 hp   600-750 hp    >750 hp
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011............................................          5.6          6.2          6.7          6.0          5.4          5.1          5.3          6.4
2014............................................          5.8          6.5          7.1          6.4          3.9          3.7          3.7          5.3
2017............................................          5.0          5.4          5.5          4.9          2.2          2.2          2.2          4.3
2020............................................          4.1          4.2          3.4          3.1          1.4          1.3          1.4          3.4
2023............................................          3.3          3.0          1.4          1.3          0.7          0.7          0.7          2.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Reproduction of Table 5 of section 2449.2(d) of CARB SOON Program. These fleet average target rates are more stringent than what is required
  under the Off-Road Regulation (see 13 CCR section 2449.1(a)(1), Table 3).

    Specifically, subject fleet owners are required to submit a report 
with information on, including but not limited to, the fleet owner, 
vehicle types and uses of each vehicle, engines used to power the 
vehicles and the type and use of each engine, and VDECS installed on 
engines. 13 CCR section 2449.2(d)(1)(A)). Fleets must calculate their 
fleet average index based on the equipment they have and compare it to 
the fleet average target rate based on the SOON target rates shown in 
Table 1 above (13 CCR section 2449.2(d)(1)(B) and (C)), and if their 
fleet average index is greater than the SOON fleet average target rate, 
they are required to apply for funding (13 CCR section 
2449.2(d)(1)(D)). Fleets must apply for funding in accordance with the 
Carl Moyer Memorial Air Quality Standards Attainment Program (Carl 
Moyer Program) \14\ policies and procedures and also with the 
Administrative Guidelines \15\ adopted by the SCAQMD, which provide 
further clarification on what to include in the funding applications 
and compliance plans. Funding applications and compliance plans must 
together demonstrate that equipment identified for the CARB SOON 
Program funding will result in surplus \16\ reductions in order to 
qualify for incentive funding. Once a fleet receives funding for a 
qualified project, the fleet is required to implement the project. The 
SCAQMD has approved significant funding for the implementation of Rule 
2449. The 2012 AQMP states that the District Governing Board has 
allocated up to $30 million per year for the program and extended the 
SOON Program to 2023 (see Final 2012 AQMP: Appendix IV-B, p. IV-B-31). 
For ``FY 2015-2016,'' or ``Year 18'' of the Carl Moyer Memorial Air 
Quality Standards Attainment Program, the SCAQMD expects that 
approximately $5 million of funding will be available for the SCAQMD 
SOON Program (see DRAFT Technology Committee Agenda

[[Page 12640]]

#1, prepared for BOARD MEETING DATE: March 4, 2016, page 3).
---------------------------------------------------------------------------

    \14\ The Carl Moyer Program funds are used to fund Rule 2449 
with the requirement that all projects meet, at a minimum, the Carl 
Moyer Program's latest requirements and guidelines (e.g., project 
selection criteria, co-funding requirements, and reporting and 
monitoring requirements). For more information on the Carl Moyer 
Program, see http://www.arb.ca.gov/msprog/moyer/moyer.htm.
    \15\ In addition to the Carl Moyer Program guidelines, the CARB 
SOON Program requires the District to adopt District guidelines, 
through a public process, that include additional administrative 
provisions necessary to implement the CARB SOON Program. These 
provisions include, but are not limited to, funding guidelines, 
compliance planning requirements and reporting and monitoring 
requirements. The SCAQMD adopted these additional district 
guidelines on May 22, 2008 (see Draft Administrative Guidelines, 
Proposed Rule 2449 Administrative Guidelines, SCAQMD, May 2008). The 
SCAQMD Board plans to consider amendments to the May 2008 
Administrative Guidelines on March 4, 2016 (see DRAFT Technology 
Committee Agenda #1, prepared for BOARD MEETING DATE: March 4, 2016, 
with Attachment 4, SOON Provision Implementation Guidelines). The 
amendments include referencing the correct section of CARB's Off-
Road Regulation and aligning funding levels for the SCAQMD SOON 
Program with the Carl Moyer program. If approved by the SCAQMD 
Board, the EPA expects the SCAQMD to forward the amendments to CARB 
for approval.
    \16\ Surplus reductions are those NOX reductions that 
are not needed for meeting the requirements of the Off-Road 
Regulation. If surplus reductions are available and used to meet the 
requirements of Rule 2449 and the CARB SOON Program, then those 
reductions cannot be used to meet the requirements of the Off-Road 
Regulation until they are no longer needed for compliance with Rule 
2449.
---------------------------------------------------------------------------

III. The EPA's Evaluation of the State's Submittal

A. How is the EPA evaluating the rule?

    The EPA has evaluated Rule 2449 against the applicable procedural 
and substantive CAA requirements for SIPs and SIP revisions and has 
concluded that it meets all of the applicable requirements.
    Generally, SIPs must include enforceable emission limitations and 
other control measures, means, or techniques, as well as schedules and 
timetables for compliance, as may be necessary to meet the requirements 
of the Act (see CAA section 110(a)(2)(A)); must provide necessary 
assurances that the State will have adequate personnel, funding, and 
authority under State law to carry out such SIP (and is not prohibited 
by any provision of Federal to State law from carrying out such SIP) 
(see CAA section 110(a)(2)(E)); must be adopted by a State after 
reasonable notice and public hearing (see CAA section 110(l)), and must 
not interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
Act (see CAA section 110(l)).\17\
---------------------------------------------------------------------------

    \17\ CAA section 193, which prohibits any pre-1990 SIP control 
requirement relating to nonattainment pollutants in nonattainment 
areas from being modified unless the SIP is revised to insure 
equivalent or greater emission reductions of such air pollutants, 
does not apply to this rule because it does not include any pre-1990 
SIP control requirements.
---------------------------------------------------------------------------

    In addition, as noted above, CARB and the SCAQMD must implement 
RACM for NOX (among other pollutants) under CAA section 
172(c)(1).

B. Does Rule 2449 meet CAA SIP evaluation criteria?

1. Did the SCAQMD and CARB provide adequate public notice and comment 
periods?
    Under CAA section 110(l), SIP revisions must be adopted by the 
State, and the State must provide for reasonable public notice and 
hearing prior to adoption. In 40 CFR 51.102(d), we specify that 
reasonable public notice in this context refers to at least 30 days. 
The State has submitted evidence of public notice and hearing prior to 
the May 5, 2008 adoption and July 11, 2014 amendment of Rule 2449 by 
the SCAQMD (see attachments to July 18, 2008 letter to Mr. Wayne 
Nastri, EPA Region 9 from Michael H. Scheible, Air Resource Board and 
attachments to September 5, 2014 letter to Mr. Jared Blumenfeld, EPA 
Region 9, from Richard W. Corey, Air Resources Board). Based on the 
evidence provided by the SCAQMD and CARB, we conclude that they have 
provided adequate public notice and comment periods.
2. Do the SCAQMD and CARB have adequate legal authority to implement 
the rule?
    California air districts are authorized to adopt and enforce rules 
by California Health and Safety Code (H&SC) section 40001. CARB is 
authorized to adopt the rules as revisions to the SIP by H&SC section 
39601, 39602, and 41650 through 41652 (see CARB Executive Order S-14-
012).
    In addition, we note that California H&SC sections 43013(a) and 
43018 provide CARB with broad authority to achieve the maximum feasible 
and cost-effective emission reductions from all mobile source 
categories, including both on-road and off-road diesel engines.
    As discussed above, CARB's Off-Road Regulation is subject to CAA 
section 209(e), and on September 20, 2013 the EPA granted CARB's 
request for authorization to enforce its Fleet Requirements, including 
the CARB SOON Program (see 78 FR 58090-58121, September 20, 2013). 
Thus, we find that the SCAQMD and CARB have adequate legal authority to 
adopt and implement Rule 2449.
3. Is the rule enforceable as required under CAA section 110(a)(2)?
    We have evaluated the enforceability of Rule 2449 and the CARB SOON 
Program with respect to applicability and exemptions; standard of 
conduct and compliance dates; sunset provisions; discretionary 
provisions; and test methods, recordkeeping and reporting,\18\ and have 
concluded for the reasons given below that the rule is enforceable for 
the purposes of CAA section 110(a)(2).
---------------------------------------------------------------------------

    \18\ These concepts are discussed in detail in an EPA memorandum 
from J. Craig Potter, EPA Assistant Administrator for Air and 
Radiation, et al., titled ``Review of State Implementation Plans and 
Revisions for Enforceability and Legal Sufficiency,'' dated 
September 23, 1987.
---------------------------------------------------------------------------

    First, with respect to applicability, we find Rule 2449 and the 
CARB SOON Program to be sufficiently clear as to which fleet owners and 
which vehicles or engines are subject to the program and the rule (see 
Rule 2449 and 13 CCR section 2449.2(b)). In general, the rule applies 
to owners of vehicles that operate within the SCAQMD and are part of a 
fleet consisting of 40 percent Tier 0 and Tier 1 vehicles with greater 
than 20,000 hp statewide, excluding the hp from engines in two-engine 
vehicles and single engine cranes formerly subject to the Cargo 
Handling Equipment Regulation (see 13 CCR 2449.2(b)(2)).
    Second, we find that Rule 2449 and the CARB SOON Program are 
sufficiently specific so that the persons affected are fairly on notice 
as to what the requirements and related compliance dates are. We have 
described the substantive requirements and compliance dates set forth 
in Rule 2449 in section II.D. of today's proposed rule.
    Third, the requirements of Rule 2449 will sunset at different times 
from 2011 through 2023, depending on when the SCAQMD issues its 
solicitations for funding; however, once a fleet is no longer subject 
to Rule 2449, it will be then be subject to the requirements of the 
Off-Road Regulation.
    Fourth, Rule 2449 contains a provision that allows for discretion 
on the part of CARB's Executive Officer (EO), this provision is limited 
both in scope and application, and is no longer relevant since the date 
to request discretion has passed (see 13 CCR section 2449.2(e)(2), 
allowing a fleet to apply to the EO for an extension from the 
requirements if the rule calculations would require a fleet to turn 
over Tier 2 or better engines before January 1, 2014). As such, we find 
that this provision does not undermine the enforceability of Rule 2449 
or preclude its approval into the SIP.
    Lastly, Rule 2449 identifies appropriate calculation requirements 
and includes adequate recordkeeping and reporting requirements 
sufficient to ensure compliance with the applicable requirements. In 
particular, as described above, once the SCAQMD issues a solicitation, 
each subject fleet owner must submit a report containing detailed 
information about each vehicle and engine in the fleet, each VDECS 
installed on an engine in the fleet, and other information related to 
compliance with the Off-Road Rule (see 13 CCR 2449(d)(1)(A) and 
2449(g). If the fleet average index is greater than the SOON fleet 
average target rate, the fleet owner must apply for SOON funding (13 
CCR 2449.2(d)(1)(B)). If the necessary NOX retrofits, 
repower, or vehicle replacements are available, the application must 
indicate how these retrofits, repowers, or vehicle replacements would 
bring the fleet average index for vehicles that operate within the 
SCAQMD to less than or equal to the SOON fleet average target rate (13 
CCR 2449.2(d)(1)(D)). In addition, the fleet owner must prepare and 
submit a compliance plan laying out the actions it is required to take

[[Page 12641]]

under section 2449.1 and the actions for which it is applying to the 
SCAQMD for funding under section 2449.2 (13 CCR 2449.2(e)(3)).
4. Does the rule interfere with reasonable further progress and 
attainment or any other applicable requirement of the Act?
    As discussed above, the SCAQMD's 2012 AQMP relies on NOX 
reductions from Rule 2449 to attain the one-hour and 1997 eight-hour 
ozone NAAQS. The EPA has approved SCAQMD's commitment to implement the 
SOON Program as part of the SCAQMD's aggregate NOX emissions 
reductions commitment (see 79 FR 29712, 29720 and 29721). Approval of 
Rule 2449 into the SIP will help fulfill this commitment. Thus, the EPA 
believes that approval of Rule 2449 does not interfere with Reasonable 
Further Progress, attainment or any other applicable requirement of the 
Act.
5. Will the State and the SCAQMD have adequate personnel and funding 
for the rule?
    As discussed above, the SCAQMD has approved significant funding for 
the implementation of Rule 2449. The 2012 AQMP states that the SCAQMD 
Board has allocated up to $30 million per year for the program and 
extended the SOON Program to 2023 (see Final 2012 AQMP: Appendix IV-B, 
p. IV-B-31). For ``FY 2015-2016,'' or ``Year 18'' of the Carl Moyer 
Memorial Air Quality Standards Attainment Program, the SCAQMD expects 
to have approximately $5 million of funding available for the SCAQMD 
SOON Program (see DRAFT Technology Committee Agenda #1, prepared for 
BOARD MEETING DATE: March 4, 2016, page 3).
6. Does the rule meet the RACM and BACM requirements under CAA sections 
172(c)(1) and 189?
    Rule 2449 provides for the most stringent in-use off-road diesel 
equipment requirements that we are aware of in the United States, and 
thus, we find that the rule implements both reasonably available and 
best available control measures for this source category. However, as 
discussed above, the EPA generally takes action on a RACM or BACM 
demonstration as part of our action on the State's attainment 
demonstration for the relevant NAAQS. Thus, while we do not know of any 
more stringent requirements for this category at this time, we are also 
not taking any action on how this measure fits within the context of a 
RACM or BACM demonstration for the South Coast area.
7. The EPA's Rule Evaluation Conclusion
    Based on the above discussion, we believe Rule 2449 and the CARB 
SOON Program are consistent with the relevant CAA requirements, 
policies and guidance.

IV. Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the Act, the EPA is proposing 
to fully approve the submitted rule because we believe it fulfills all 
relevant requirements. We will accept comments from the public on this 
proposal until April 11, 2016. Unless we receive convincing new 
information during the comment period, we intend to publish a final 
approval action that will incorporate this rule into the federally 
enforceable SIP.

V. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference SCAQMD Rule 2449. The EPA has made, and will continue to 
make, this document available electronically through 
www.regulations.gov and in hard copy at the appropriate EPA office (see 
the ADDRESSES section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve State choices, 
provided that they meet the criteria of the Act. Accordingly, this 
proposed action merely proposes to approve State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide the EPA with the discretionary authority 
to address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements.

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

    Dated: February 25, 2016.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2016-05278 Filed 3-9-16; 8:45 am]
 BILLING CODE 6560-50-P


