[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Notices]
[Pages 20388-20392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8112]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9655-9]


California State Nonroad Engine Pollution Control Standards; 
Large Spark-Ignition (LSI) Engines; New Emission Standards and In-Use 
Fleet Requirements; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: EPA is granting the California Air Resources Board's (CARB's) 
request for authorization of California's emission standards and 
certification and test procedures for large spark-ignition nonroad 
engines and in-use fleet average emission requirements for large- and 
medium-sized fleets. California's LSI in-use fleet requirements are 
applicable to fleets comprised of four or more pieces of equipment 
powered by LSI engines, including forklifts, industrial tow tractors, 
sweepers/scrubbers, and airport ground support equipment.

DATES: Petitions for review must be filed by June 4, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2011-0830. 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: [email protected], 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-2011-0830 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: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. California's LSI Regulations

    By letter dated December 10, 2008, CARB submitted to EPA its 
request pursuant to section 209(e) of the Clean Air Act (``CAA'' or 
``the Act''), regarding its regulation of emissions from new off-road 
large spark-ignition (LSI) engines and its in-use fleet requirements 
for forklifts and other industrial equipment with LSI engines.\1\ The 
LSI regulations are designed to reduce emissions of hydrocarbons (HC) 
and oxides of nitrogen (NOX) from forklifts and other 
industrial equipment powered by LSI engines. CARB approved the LSI 
regulations at a public hearing on May 25, 2006 (by Resolution 06-
11).\2\ After making modifications to the regulation available on 
December 1, 2006, and February 1, 2007 for supplemental public comment, 
CARB's Executive Officer formally adopted the LSI regulations in 
Executive Order R-07-001 on March 2, 2007.\3\ The LSI regulations are 
codified at title 13, California Code of Regulations, sections 2775 
through 2775.2.\4\
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    \1\ California Air Resources Board (``CARB''), ``Request for 
Authorization,'' December 10, 2008, EPA-HQ-OAR-2011-0830-0001.
    \2\ CARB Enclosure 1, ``Resolution 06-11,'' EPA-HQ-OAR-2011-
0830-0002.
    \3\ CARB Enclosure 2, ``Executive Order R-07-001,'' EPA-HQ-OAR-
2011-0830-0003.
    \4\ CARB Enclosure 3, ``Final Regulation Order,'' EPA-HQ-OAR-
2011-0830-0004.
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    Underpinning CARB's LSI regulations is a set of emission standards 
for new off-road LSI engines beginning in 2007. The emission standards 
include: adoption of EPA's 2007 and later model year emission standards 
for the same engines, more stringent standards for the 2010 and later 
model years, optional certification standards, and more rigorous 
certification and test procedures. The LSI regulations also apply to 
operators of large- and medium-sized fleets of forklifts, sweepers/
scrubbers, airport ground support equipment (GSE), and industrial tow 
tractors with engine displacements of greater than one liter. These 
fleets must meet a fleet average in-use emission standard.

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 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

[[Page 20389]]

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.\5\ EPA later revised these regulations in 1997.\6\ 
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).\7\
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    \5\ 59 FR 36969 (July 20, 1994).
    \6\ See 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.
    \7\ See 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.

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.\8\
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    \8\ 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.'' \9\
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    \9\ 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.\10\ 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.\11\
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    \10\ Id.
    \11\ 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.'' \12\
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    \12\ 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 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.\13\
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    \13\ 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.' '' \14\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \15\
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    \14\ Id. at 1126.
    \15\ Id.
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D. EPA's Administrative Process in Consideration of California's LSI 
Regulations

    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 October 31, 2011.\16\ Specifically, we requested 
comment on: (a) Whether CARB's determination that its

[[Page 20390]]

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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    \16\ 76 FR 67184 (October 31, 2011).
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    In response to EPA's October 31, 2011 Federal Register notice, EPA 
received one public comment, from Airlines for America (``A4A''). A4A 
comments that California's LSI regulations as applicable to airport 
ground support equipment is preempted by the Federal Aviation Act and 
the Airline Deregulation Act.

II. Discussion

A. 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's Board made a protectiveness 
determination in Resolution 06-11, finding that California's LSI 
regulations will not cause the California emission standards, in the 
aggregate, to be less protective of public health and welfare than 
applicable federal standards.\17\ CARB presents that California's LSI 
program is at least as stringent as the federal LSI program ``because 
for 2010 and later model-year LSI engines, California's standard for 
HC+NOX at 0.8 g/kW-hr is more stringent than applicable 
federal standard at 2.0 g/kW-hr and California's other LSI engine 
standards are equivalent to federal standards for these model years.'' 
\18\ CARB contends that its protectiveness determination, based on the 
stringency of its program as compared to the federal program, ``clearly 
is not arbitrary and capricious.'' \19\
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    \17\ ``BE IT FURTHER RESOLVED that the Board hereby determines, 
pursuant to section 209(e)(2) of the federal Clean Air Act that the 
emission standards and other requirements related to the control of 
emissions adopted as part of these regulations are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards, that California needs the adopted 
standards to meet compelling and extraordinary conditions, and that 
the adopted standards and accompanying enforcement procedures are 
consistent with the provisions in section 209.'' CARB, Resolution 
06-11, EPA-HQ-OAR-2011-0830-0003.
    \18\ CARB, Request for Authorization at 19.
    \19\ Id.
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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.

B. 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.\20\ 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 06-11, CARB affirmed its 
longstanding position that California continues to need its own motor 
vehicle and engine program to meet its serious air pollution problems. 
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.'' \21\ 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 LSI 
regulations under section 209(e)(2)(ii).
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    \20\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \21\ 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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C. 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).
1. Consistency With Section 209(a)
    To be consistent with section 209(a) of the Clean Air Act, 
California's LSI regulations must not apply to new motor vehicles or 
new motor vehicle engines. California's LSI regulations expressly apply 
only to off-road vehicles and do not apply to engines used in motor 
vehicles as defined by section 216(2) of the Clean Air Act.\22\ No 
commenter presented otherwise. Therefore, EPA cannot deny California's 
request on the basis that California's LSI regulations are not 
consistent with section 209(a).
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    \22\ CARB, Request for Authorization at 20.
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2. Consistency With Section 209(e)(1)
    To be consistent with section 209(e)(1) of the Clean Air Act, 
California's LSI regulations must not affect new farming or 
construction vehicles or engines that are below 175 horsepower, or new 
locomotives or their engines. CARB presents that the Board ``ensured 
consistency with section 209(e)(1) by specifically excluding new off-
road engines under 175 horsepower primarily used in farm and 
construction vehicles and equipment from the definition of off-road LSI 
engines.'' \23\ No commenter presented otherwise. Therefore, EPA cannot 
deny California's request on the basis that California's LSI 
regulations are not consistent with section 209(e)(1).
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    \23\ Id.
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3. 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

[[Page 20391]]

impose requirements inconsistent with the federal test procedures.\24\
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    \24\ MEMA I, 627, F.2d at 1126.
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a. Technological Feasibility
    Congress has stated that the consistency requirement of section 
202(a) relates to technological feasibility.\25\ 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.\26\ For example, 
a previous EPA waiver decision considered California's standards and 
enforcement procedures to be consistent with section 202(a) because 
adequate technology existed as well as adequate lead-time to implement 
that technology.\27\ Subsequently, Congress has stated that, generally, 
EPA's construction of the waiver provision has been consistent with 
congressional intent.\28\
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    \25\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \26\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
    \27\ 41 FR 44209 (October 7, 1976).
    \28\ 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 LSI 
regulations is currently available, and that it has provided sufficient 
lead-time, giving consideration to cost of compliance.\29\ CARB points 
to EPA's own analysis in the federal rule for these same engines, but 
also separately concluded that fleet owners will be able to absorb or 
pass compliance costs to their customers. CARB's LSI fleet requirements 
progressively increase in stringency from year-to-year, and allow a 
variety of compliance options, including combinations of retrofits that 
have already been verified, lower-emission purchases, and zero emission 
purchases. Capital costs of these options range from $30 to $5,000, and 
may be exceeded by resultant lowered fuel use and lessened maintenance. 
CARB also points out that fleet requirements apply selectively, provide 
several exemptions, and that compliance extensions may be granted.
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    \29\ CARB, Request for Authorization at 24-28.
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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.
b. 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.\30\ CARB 
presents that the LSI fleet requirements raise no issue regarding test 
procedure consistency because there are no analogous federal test 
procedures for LSI retrofit technologies.\31\ CARB also points out that 
its retrofit verification program is a voluntary program available to 
retrofit device manufacturers, and not directly required of fleet 
owners.
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    \30\ See, e.g., 43 FR 32182 (July 25, 1978).
    \31\ CARB, Request for Authorization at 28.
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    EPA received no comments suggesting that CARB's LSI regulations 
pose 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. Other Issues

    Airlines for America (``A4A'') has provided comments opposing EPA's 
grant of authorization for California's LSI regulations. The reasons 
A4A provides in its comments are outside the scope of EPA's scope of 
review of California authorization requests under section 209(e)(2). 
A4A claims that California's LSI rules are preempted by the Federal 
Aviation Act and the Airline Deregulation Act. As EPA has stated on 
numerous occasions, EPA's review of California regulations under 
section 209 is not a broad review of the reasonableness of the 
regulations or its compatibility with all other laws. Sections 209(b) 
and 209(e) of the Clean Air Act limit our authority to deny California 
requests for waivers and authorizations to the three criteria listed 
therein. As a result, EPA has consistently refrained from denying 
California's requests for waivers and authorizations based on any other 
criteria.\32\ In instances where the U.S. Court of Appeals has reviewed 
EPA decisions declining to deny waiver requests based on criteria not 
found in section 209(b), the Court has upheld and agreed with EPA's 
determination.\33\ A4A's comment raises issues of federal preemption 
that are not included within the criteria listed under sections 209(b) 
and 209(e).\34\ Therefore, in considering whether to grant 
authorization for California's LSI regulations under section 209(e), 
EPA cannot deny California's request for authorization based on the 
issues raised by A4A.
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    \32\ See, e.g., 74 FR 32744, 32783 (July 8, 2009).
    \33\ See Motor and Equipment Manufacturers Ass'n v. Nichols, 142 
F.3d 449, 462-63, 466-67 (D.C. Cir. 1998), Motor and Equipment 
Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20 (D.C. Cir. 
1979).
    \34\ A4A may raise these issues in a direct challenge to 
California's regulations in other forums, but these issues are not 
relevant to EPA's limited review under section 209.
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E. Authorization Determination for California's LSI Regulations

    After a review of the information submitted by CARB and A4A, EPA 
finds that those opposing California's request have not met the burden 
of demonstrating that authorization for California's LSI regulations 
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 LSI regulations should be granted.

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 LSI regulations, CARB's 
submissions, and the public comments from A4A, EPA is granting an 
authorization to California for its LSI regulations.
    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 June 4, 2012. Judicial review of this final 
action may not be obtained in subsequent enforcement proceedings, 
pursuant to section 307(b)(2) of the Act.

[[Page 20392]]

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: March 29, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-8112 Filed 4-3-12; 8:45 am]
BILLING CODE 6560-50-P