[Federal Register Volume 78, Number 101 (Friday, May 24, 2013)]
[Notices]
[Pages 31536-31540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12505]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9816-8]


California State Nonroad Engine Pollution Control Standards; In-
Use Heavy Duty Vehicles (as Applicable to Yard Trucks and Two-Engine 
Sweepers); 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 
accompanying enforcement procedures for in-use nonroad yard trucks and 
auxiliary engines used in two-engine sweepers as found within CARB's 
``Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides 
of Nitrogen and Other Criteria Pollutants from In-Use Heavy-Duty 
Diesel-Fueled Vehicles'' (Truck and Bus Regulation). The yard truck and 
auxiliary engine regulation that EPA is authorizing represents only a 
subset of provisions within the broader Truck and Bus Regulation. The 
California Truck and Bus Regulation establishes requirements for and 
principally applies to ``non-new'' on-road motor vehicles which are not 
the subject of this decision (such regulations are not preempted under 
the Clean Air Act). However, the Truck and Bus Regulation also applies 
to some engines that are subject to preemption, including any nonroad 
engines used to power yard trucks (which are principally used in 
nonroad agricultural operations) and the auxiliary engines used to 
power the broom or vacuum functions on two-engine sweepers. EPA's 
authorization in this Notice of Decision applies only to the yard truck 
and auxiliary engine provisions in the Truck and Bus Regulation.

DATES: Petitions for review must be filed by July 23, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2012-0335. 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-2012-0335 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: David Dickinson, 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) 343-9256. Fax: (202) 343-2800. 
Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. California's Regulation

    By letter dated March 2, 2012, CARB submitted to EPA its 
authorization request (CARB Authorization Request)

[[Page 31537]]

pursuant to section 209(e) of the Clean Air Act (``CAA'' or ``the 
Act''), regarding its regulation of emissions from yard trucks and two-
engine sweepers (Yard Trucks Regulation).\1\ The Yard Trucks 
Regulation, contained within CARB's Truck and Bus Regulation, was 
approved by the CARB Board at a public hearing on December 11, 2008 (by 
Resolution 08-43),\2\ and formally adopted on October 19, 2009. The 
Truck and Bus Regulation is codified at title 13, California Code of 
Regulations, section 2025.\3\ The CARB Board subsequently amended the 
regulation on September 19, 2011 (by Resolution 10-44),\4\ which was 
approved by the California Office of Administrative Law on December 14, 
2011.
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    \1\ CARB Authorization Request at EPA-HQ-OAR-2012-0335-0001.
    \2\ CARB Resolution 08-43 at EPA-HQ-OAR-2012-0335-0021.
    \3\ CARB Final Regulation Order at EPA-HQ-OAR-2012-0335-0005.
    \4\ CARB Resolution 10-44 at EPA-HQ-OAR-2012-0335-0019.
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    With exceptions applicable to certain agricultural vehicles, 
including agricultural yard trucks, and auxiliary engines in two-engine 
sweepers, all agricultural vehicles and the auxiliary engines in two-
engine sweepers must comply with general in-use emission requirements 
depending upon the gross vehicle weight rating (GVWR) and model year of 
the vehicle. The amended regulation does not require that these 
vehicles be equipped with particulate matter (PM) filters but does 
require them to be upgraded to 2010 or later model year engines based 
upon a model year/GVWR compliance schedule. Additional compliance 
flexibilities are provided for heavier, heavy-duty vehicles and for 
smaller fleets. In addition, the Yard Trucks Regulation includes a 
number of other compliance flexibilities (e.g. early compliance 
credits, exemptions for NOX-exempt areas, etc). Special 
provisions apply to low-mileage agricultural vehicles, including 
agricultural yard trucks with nonroad engines and special provisions 
also apply to auxiliary engines used in two-engine sweepers.

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.\5\ For all other nonroad 
engines (including ``non-new'' nonroad engines), States are preempted 
from adopting and enforcing standards and other requirements relating 
to the control of emissions, except that section 209(e)(2) of the Act 
requires EPA, after notice and opportunity for public hearing, to 
authorize California to adopt and enforce such regulations unless EPA 
makes one of three specifically enumerated findings. In addition, other 
states with air quality attainment plans, approved under part D of 
Title I of the Act, may adopt and enforce such regulations if the 
standards, and implementation and enforcement, are identical to 
California's standards.
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    \5\ States are expressly preempted from adopting or attempting 
to enforce any standard or other requirement relating to the control 
of emissions from new nonroad engines which are used in construction 
equipment or vehicles or used in farm equipment or vehicles and 
which are smaller than 175 horsepower. Such express preemption under 
section 209(e)(1) of the Act also applies to new locomotives or new 
engines used in locomotives.
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    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 nonroad engine or vehicle emission 
standards.\6\ EPA revised these regulations in 1997.\7\ As stated in 
the preamble to the 1994 rule, EPA has 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).\8\
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    \6\ 59 FR 36969 (July 20, 1994).
    \7\ See 62 FR 67733 (December 30, 1997) and 40 CFR 1074.105.
    \8\ 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 (DC 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.\9\
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    \9\ 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.'' \10\
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    \10\ 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.\11\ 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.\12\
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    \11\ Id.
    \12\ 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

[[Page 31538]]

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.'' \13\
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    \13\ 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.\14\
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    \14\ 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.' '' \15\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \16\
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    \15\ Id. at 1126.
    \16\ Id.
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D. EPA's Administrative Process in Consideration of California's Yard 
Trucks Regulation

    Upon receipt 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 August 21, 2012.\17\ 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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    \17\ 77 FR 50502 (August 21, 2012).
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    EPA received no comments or testimony in response to EPA's August 
21, 2012 Federal Register notice. EPA offered an opportunity for public 
hearing, related to CARB's authorization request, on September 20, 
2012. No one notified EPA stating a desire to testify at the public 
hearing and therefore no hearing was held. The written comment period 
closed on October 22, 2012.

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 08-43, finding that its amendments will not 
cause its nonroad engine emission standards, in the aggregate, to be 
less protective of public health and welfare than applicable federal 
standards.\18\ CARB presents that there is no basis for EPA to find 
that the Board's determination is arbitrary and capricious since 
California is the only governmental jurisdiction in the nation 
entrusted with authority to adopt its own emission compliance 
requirements for in-use nonroad vehicles and engines. CARB envisions 
that nonroad yard truck fleets (and two-engine sweepers) will comply 
with the emission compliance requirements by modernizing their fleets 
through purchasing newer vehicles and engines and installing retrofit 
PM filters that will achieve emission reductions equal to or greater 
than the reductions that can be achieved under federal new engine 
emission standards.\19\
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    \18\ CARB Resolution 08-43; see also CARB Resolution 10-44.
    \19\ CARB Authorization Request at 9.
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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 more 
than 40 years CARB has repeatedly demonstrated the need for its mobile 
source emissions program to address compelling and extraordinary 
conditions in California. In its Resolution 08-43, CARB affirmed its 
longstanding position that California continues to need its own motor 
vehicle and engine program to meet its serious air pollution 
problems.\21\ 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.'' \22\ 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 Yard Trucks Regulation 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\ CARB Resolution 08-43 and CARB Resolution 10-44.
    \22\ 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).

[[Page 31539]]

1. Consistency With Section 209(a)
    To be consistent with section 209(a) of the Clean Air Act, 
California's Yard Trucks Regulation must not apply to new motor 
vehicles or new motor vehicle engines. California's Yard Trucks 
Regulation expressly applies only to in-use off-road yard trucks and 
auxiliary engines in two-engine sweepers and does not apply to new 
engines used in motor vehicles as defined by section 216(2) of the 
Clean Air Act.\23\ No commenter presented otherwise. Based on the 
evidence in the record, EPA cannot deny California's request on the 
basis that California's Yard Trucks Regulation is not consistent with 
section 209(a).
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    \23\ CARB Authorization Request at 11-13.
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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 Yard Trucks Regulation must not affect new farming or 
construction vehicles or engines that are below 175 horsepower (hp), or 
new locomotives or their engines. CARB presents that the regulation 
specifically does not apply to locomotives and it further does not 
apply to new farm and construction equipment with engines less than 175 
horsepower hp.\24\ In addition, CARB notes that its regulation does not 
immediately attempt to regulate new farm and construction equipment and 
that under any compliance pathway a fleet is not required to take any 
action on a vehicle less than 7 years old. CARB maintains that its in-
use regulations are consistent with the definition of new in EPA's 
section 209(e) rule. No commenter presented otherwise. Based on the 
evidence in the record, EPA cannot deny California's request on the 
basis that California's Yard Trucks Regulation is not consistent with 
section 209(e)(1).
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    \24\ 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 such that the same engine 
could not meet both the federal requirements and the California 
requirements. 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.\25\
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    \25\ 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.\26\ 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.\27\ 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.\28\ Subsequently, Congress has stated that, generally, 
EPA's construction of the waiver provision has been consistent with 
congressional intent.\29\
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    \26\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \27\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
    \28\ 41 FR 44209 (October 7, 1976).
    \29\ 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 Yard 
Trucks Regulation is currently available, and that it has provided 
sufficient lead-time, giving consideration to cost of compliance.\30\ 
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.
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    \30\ CARB Authorization Request at 13-18.
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    EPA did not receive any comments suggesting that CARB's standards 
and test procedures are technologically infeasible. Based on the 
evidence in 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.\31\ CARB 
presents that the Yard Trucks Regulation raises no issue regarding test 
procedure consistency because there are no additional test procedures 
for engine manufacturers or fleet owners to meet beyond federal and 
state certification testing for new engines.\32\ 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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    \31\ See, e.g., 43 FR 32182 (July 25, 1978).
    \32\ CARB Authorization Request at 18, See 49 CFR parts 89 and 
1039 and title 13, CCR, sections 2400 through 2427 and 2700 et seq.
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    EPA received no comments suggesting that CARB's Yard Trucks 
Regulation pose any test procedure consistency problem. Based on the 
evidence in 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. Authorization Determination for California's Yard Trucks Regulation

    After a review of the information submitted by CARB and the record 
for this authorization request, EPA finds that no basis exists to 
demonstrate that authorization for California's Yard Trucks Regulation 
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 Yard Trucks Regulation 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

[[Page 31540]]

Authorization Request, and the public record for this matter, EPA is 
granting an authorization to California for its Yard Trucks Regulation.
    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 July 23, 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: May 16, 2013.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2013-12505 Filed 5-23-13; 8:45 am]
BILLING CODE 6560-50-P