[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6500-6506]
[FR Doc No: 2017-01261]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0534; FRL-9958-62-OAR]

California State Nonroad Engine Pollution Control Standards;
Commercial Harbor Craft Regulations; Notice of Decision

AGENCY: Environmental Protection Agency.

ACTION: Notice of decision.

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SUMMARY: The Environmental Protection Agency (``EPA'') is granting the
California Air Resources Board (``CARB'') its request for an
authorization of its amendments to its Commercial Harbor Craft
regulations (``CHC Amendments''). EPA is also confirming that certain
CHC amendments are within the scope of a prior EPA authorization.
CARB's CHC Amendments primarily subject diesel-fueled engines on crew
and supply, barge and dredge vessels to the in-use engine emission
requirements of the original CHC regulations; allow CARB or EPA Tier 2
or higher tier certified off-road (``nonroad'') engines to be used as
auxiliary or propulsion engines in both new and in-use CHC vessels; and
clarify requirements and address certain issues that have arisen during
CARB's implementation of the original CHC regulations. This decision is
issued under the authority of the Clean Air Act (``CAA'' or ``Act'').

DATES: Petitions for review must be filed by March 20, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2014-0534. 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<PHONE_NUMBER>. 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_ADDRESS>the telephone number is
(202) 566-1742, and the fax number is<PHONE_NUMBER>. 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-2014-0534 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,
Transportation Climate Division, Office of Transportation and Air
Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue
(6405J), NW., Washington, DC 20460. Telephone:<PHONE_NUMBER>. Fax:
(202) 343-2800. Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    EPA granted an authorization for California's initial set of CHC
regulations on December 5, 2011.\1\ California's initial CHC
regulations

established emission standards, requirements related to the control of
emissions, and enforcement provisions. The requirements are applicable
to diesel propulsion and auxiliary engines on new and in-use commercial
harbor craft, with some exceptions. Commercial harbor craft include a
variety of different types of vessels, including ferries, excursion
vessels, tugboats, towboats, and commercial and charter fishing boats.
The initial CHC regulations established in-use emission limits for in-
use ferries, excursion vessels, tugboats, and towboats equipped with
federal Tier 0 and Tier 1 propulsion and auxiliary marine engines.
Owners and operators of these vessels were required to upgrade the
engines to meet emission limits equal to or cleaner than federal Tier 2
or Tier 3 marine engine certification standards, according to a
compliance schedule that was also set forth in the regulations. The
compliance schedule was based on the model year of the original engine
(``in-use engine model year''), its hours of operation, and the
vessel's home port location. The CHC regulations apply separately to
new and in-use engines used on harbor craft.\2\
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    \1\ 76 FR 77521 (December 5, 2011).
    \2\ The regulations are codified at title 13, California Code of
Regulations (CCR), section 2229.5 and title 17, CCR section 93118.5.
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    In a letter dated May 28, 2014, CARB submitted to EPA its request
pursuant to section 209(e) of the CAA, regarding authorization of its
amendments to California's CHC regulations to reduce emissions from
diesel engines on commercial harbor craft (``CHC Amendments'').\3\ The
CARB Board approved the CHC Amendments on June 24, 2010 (by Resolution
10-26).\4\
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    \3\ Letter and attached memo from Richard Corey, CARB to Gina
McCarthy, EPA dated May 28, 2014 (``Waiver Support Document''), EPA-
HQ-OAR-2014-0534-0002.
    \4\ CARB Resolution 10-26, June 24, 2010, EPA-HQ-OAR-2014-0534-
0008.
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    The CHC Amendments set forth a variety of in-use requirements,
including extending the applicability of the CHC regulations to in-use
crew and supply, barge, and dredge vessels that are equipped with
federal Tier 0 and Tier 1 propulsion and auxiliary marine engines that
operate within the Regulated California Waters.\5\ The CHC Amendments
also eliminate certain exemptions for CHC engines that had been
registered in CARB's portable equipment registration program (``PERP'')
or permitted by local air pollution districts, and now subject such
engines to the CHC regulations. In addition, the CHC Amendments clarify
and define ``swing engines'' as replacement engines that are maintained
at dockside locations and require such engines to comply with the CHC
regulation's in-use engine requirements. The original CHC regulations
required replacement engines for in-use CHC vessels to be certified to
current EPA model year engines standards. CARB found this requirement
could present difficulties for in-use CHC vessels in certain
situations. Therefore, the CHC Amendments allow an owner or operator to
use a non-current-year certified replacement engine under certain
circumstances. In addition, the CHC Amendments allow the use of
existing engines in a fleet to replace an older engine otherwise
subject to the in-use requirements (the existing engine becomes subject
to the in-use compliance date that applied to the engine being
replaced). The CHC Amendments also expand the compliance extension
options to fleets of three or more vessels.
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    \5\ Regulated California Waters include all California inland
waters, all California estuarine waters, and all waters within a
zone 24 nautical miles seaward of the California coastline, except
for specified areas along the Southern California coastline, Title
17 CCR 93118.5(d)(68). The original CHC regulations required owners
or operators of in-use ferries, excursion vessels, and tugboats
equipped with Tier 0 and Tier 1 propulsion and auxiliary marine
engines to meet equal to or cleaner than federal Tier 2 or Tier 3
new marine engine certification standards in effect for the year
that in-use engine compliance was required. The compliance schedule
was based on the in-use engine model year, hours of operation, and
the vessel's home port location. The amendments establish compliance
schedules applicable to crew and supply vessel engines and a
separate set of compliance schedules applicable to both barge and
dredge vessel engines that are based solely on the in-use engine
model year and annual hours of operation.
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    CARB's CHC Amendments also include requirements that are applicable
to both new and in-use engines. The original CHC regulation provided
that new or in-use diesel propulsion or auxiliary engines for in-use
harbor craft could not be sold, offered for sale, leased, rented, or
acquired unless the engines were certified to at least federal Tier 2
or Tier 3 marine emission standards for a new engine of the same power
rating and displacement in effect at the time of the aforementioned
actions. The amendments now provide compliance flexibility to CHC
owners or operators with the option of using EPA or CARB Tier 2 or
higher tier certified off-road engines provided the engine or vessel
manufacturer has complied with the provisions of 40 CFR 1042.605, which
establishes requirements for marinized land-based engines.

A. California's Authorization Request

    California requested that EPA perform two types of review. First,
CARB requested an EPA determination that certain provisions of the CHC
Amendments are within the scope of a prior authorization issued by EPA,
or in the alternative, merit full authorization (``Within-the-Scope
Amendments''). CARB includes as part of the Within-the-Scope
Amendments: The provisions allowing use of EPA or CARB certified off-
road CI engines to comply with the new and in-use requirements for
propulsion and/or auxiliary engines; the amendments that subject CHC
engines registered and permitted by local air pollution districts prior
to January 1, 2009, CHC auxiliary engines registered to CARB's PERP
prior to January 1, 2009, and CHC auxiliary engines not permanently
affixed to the vessel and registered in PERP on or after January 1,
2009 to the CHC Regulation; and the amendments that clarify swing
engines are replacement engines subject to the CHC regulation's in-use
requirements, along with the exemptions for replacement engines in in-
use CHC vessels, the allowance of the use of existing engines to
replace an older engine subject to in-use requirements, and the
expansion of the availability of compliance extensions for CHC vessel
fleets.
    Second, CARB requests full authorization for amendments that
establish new requirements (``Full Authorization Amendments''). The
Full Authorization Amendments pertain to the new provisions
establishing in-use requirements applicable to crew and supply, barge,
and dredge vessels. The amendments extend the applicability of the
previous requirement that specified categories of CHC vessels (ferries,
excursions vessels tugboats, towboats, push boats, and multipurpose
harbor craft) to meet emission limits equal to or cleaner than federal
Tier 2 or Tier 3 new marine engine emission standards, as applicable
and in effect for the year that in-use engine compliance is required
under the compliance schedule set forth within the regulation.

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.\6\ For

all other nonroad engines, states generally are preempted from adopting
and enforcing standards and other requirements relating to the control
of emissions. Section 209(e)(2), however, requires the Administrator,
after notice and opportunity for public hearing, to authorize
California to adopt and enforce standards and other requirements
relating to the control of emissions from such vehicles or engines if
California determines that California standards will be, in the
aggregate, at least as protective of public health and welfare as
applicable Federal standards. However, EPA shall not grant such
authorization if it finds that (1) the determination of California is
arbitrary and capricious; (2) California does not need such California
standards to meet compelling and extraordinary conditions; or (3)
California standards and accompanying enforcement procedures are not
consistent with [CAA section 209].\7\
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    \6\ 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. CAA Sec.  209(e)(1), 42 U.S.C.
7543(e)(1)(A).
    \7\ 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 EPA's 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.
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. 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). See also 78 FR 58090, 58120 (September 20, 2013).
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    On July 20, 1994, EPA promulgated a rule interpreting the three
criteria set forth in section 209(e)(2)(A) that EPA must consider
before granting any California authorization request for nonroad engine
or vehicle emission standards.\8\ EPA revised these regulations in
1997.\9\ As stated in the preamble to the 1994 rule, EPA historically
has interpreted the consistency inquiry under the third criterion,
outlined above and set forth in section 209(e)(2)(A)(iii), to require,
at minimum, that California standards and enforcement procedures be
consistent with section 209(a), section 209(e)(1), and section
209(b)(1)(C) of the Act.\10\
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    \8\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
    \9\ See ``Control of Air Pollution: Emission Standards for New
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts;
Preemption of State Regulation for Nonroad Engine and Vehicle
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997).
The applicable regulations are now found in 40 CFR part 1074,
subpart B, section 1074.105.
    \10\ 59 FR 36969 (July 20, 1994). EPA has interpreted
209(b)(1)(C) in the context of section 209(b) motor vehicle waivers.
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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 under section 209(b)(1)(C). That provision
provides that 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 will be found to be 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,\11\ or (2) the federal and state testing
procedures impose inconsistent certification requirements.\12\
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    \11\ H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).
    \12\ S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).
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    In light of the similar language in sections 209(b) and
209(e)(2)(A), EPA has reviewed California's requests for authorization
of nonroad vehicle or engine standards under section 209(e)(2)(A) using
the same principles that it has historically applied in reviewing
requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards under section 209(b).\13\ These principles
include, among other things, that EPA should limit its inquiry to the
three specific authorization criteria identified in section
209(e)(2)(A),\14\ and that EPA should give substantial deference to the
policy judgments California has made in adopting its regulations. In
previous waiver decisions, EPA has stated that Congress intended EPA's
review of California's decision-making be narrow. EPA has rejected
arguments that are not specified in the statute as grounds for denying
a waiver:
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    \13\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075,
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of
permissible construction in analogizing Sec.  209(e) on nonroad
sources to Sec.  209(a) on motor vehicles.''
    \14\ See EPA's Final 209(e) rulemaking at 59 FR 36969, 36983
(July 20, 1994).

    The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in California air
quality not commensurate with its costs or is otherwise an arguably
unwise exercise of regulatory power is not legally pertinent to my
decision under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\15\
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    \15\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more
stringent standard expressed here, in 1971, was superseded by the
1977 amendments to section 209, which established that California
must determine that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. In the 1990 amendments to section 209, Congress
established section 209(e) and similar language in section
209(e)(1)(i) pertaining to California's nonroad emission standards
which California must determine to be, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards.

    This principle of narrow EPA review has been upheld by the U.S.
Court of Appeals for the District of Columbia Circuit.\16\ Thus, EPA's
consideration of all the evidence submitted concerning an authorization
decision is circumscribed by its relevance to those questions that may
be considered under section 209(e)(2)(A).
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    \16\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
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B. Within-the-Scope Determinations

    If California amends regulations that were previously authorized by
EPA, California may ask EPA to determine that the amendments are within
the scope of the earlier authorization. A within-the-scope
determination for such amendments is permissible without a full
authorization if three conditions are met. First, the amended
regulations must not undermine California's previous determination that
its standards, in the aggregate, are as protective of public health and
welfare as applicable federal standards. Second, the amended
regulations must not affect consistency with section 209 of the Act,
following the same criteria discussed above in the context of full
authorizations. Third, the amended regulations must not raise any ``new
issues'' affecting EPA's prior authorizations.\17\
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    \17\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July15, 1981).

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C. Deference to California

    In previous waiver and authorization decisions, EPA has recognized
that the intent of Congress in creating a limited review based on the
section 209(b)(1) criteria was to ensure that the federal government
did not second-guess state policy choices. As the agency explained in
one prior waiver decision:

    It is worth noting . . . I would feel constrained to approve a
California approach to the problem which I might also feel unable to
adopt at the federal level in my own capacity as a regulator. The
whole approach of the Clean Air Act is to force the development of
new types of emission control technology where that is needed by
compelling the industry to ``catch up'' to some degree with newly
promulgated standards. Such an approach . . . may be attended with
costs, in the shape of reduced product offering, or price or fuel
economy penalties, and by risks that a wider number of vehicle
classes may not be able to complete their development work in time.
Since a balancing of these risks and costs against the potential
benefits from reduced emissions is a central policy decision for any
regulatory agency under the statutory scheme outlined above, I
believe I am required to give very substantial deference to
California's judgments on this score.\18\
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    \18\ 40 FR 23102, 23103-23104 (May 28, 1975).

    Similarly, EPA has stated that the text, structure, and history of
the California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\19\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
Clean Air Act.\20\ Congress had the opportunity through the 1977
amendments to restrict the preexisting waiver provision, but elected
instead to expand California's flexibility to adopt a complete program
of motor vehicle emission controls. The report explains that the
amendment is intended to ratify and strengthen the preexisting
California waiver provision and to affirm the underlying intent of that
provision, that is, to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare.\21\
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    \19\ Id. at 23104; 58 FR 4166 (January 13, 1993).
    \20\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-302 (1977)).
    \21\ Id.
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D. Burden and Standard of Proof

    As the U.S. Court of Appeals for the D.C. Circuit has made clear in
MEMA I, opponents of a waiver request by California bear the burden of
showing that the statutory criteria for a denial of the request have
been met:

[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.\22\
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    \22\ MEMA I, supra note 17, at 1121.

    The same logic applies to authorization requests. 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.' '' \23\ Therefore, the
Administrator's burden is to act ``reasonably.'' \24\
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    \23\ Id. at 1126.
    \24\ Id. at 1126.
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    With regard to the standard of proof, the court in MEMA I explained
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.\25\
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    \25\ Id. at 1122.

    With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\26\ 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.\27\
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    \26\ Id.
    \27\ 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.
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.'' \28\
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    \28\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
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E. EPA's Administrative Process in Consideration of California's
Commercial Harbor Craft 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 November 24, 2014.\29\ 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. In
addition, EPA requested comment on issues relevant to a within-the-
scope analysis for any CARB amendments that may merit confirmation of
being within the scope of EPA's prior authorization of the CHC
regulation.
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    \29\ 79 FR 69482 (November 24, 2014).
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    EPA did not receive a request for hearing and therefore no hearing
was held. EPA did not receive any written comments. EPA's evaluation is
based on the record, which includes CARB's authorization request and
accompanying documents.

II. Discussion

A. Within-the-Scope Analysis

    We initially evaluate California's Within-the-Scope Amendments by
application of our traditional within-the-scope analysis, as CARB
requested. If we determine that CARB's request does not meet the
requirements for a within-the-scope determination, we then evaluate the
request based on a full authorization analysis. In determining whether
amendments can be viewed as

within the scope of previous authorizations, EPA looks at whether
CARB's revisions have been limited to making minor technical amendments
to previously waived regulations or modifying the regulations in order
to provide manufacturers with additional compliance flexibilities
without significantly reducing the overall stringency of the
requirements.
    EPA sought comment on a range of issues, including those applicable
to a within-the-scope analysis as well as those applicable to a full
authorization analysis. No party submitted a comment that California's
Within-the-Scope Amendments require a full authorization analysis.
Given the lack of comments on this issue, and EPA's assessment of the
nature of the amendments, EPA will evaluate California's Within-the-
Scope Amendments by application of our traditional within-the-scope
analysis, as CARB requested.
    EPA can confirm that amended regulations are within the scope of a
previously granted waiver of preemption if three conditions are met.
First, the amended regulations must not undermine California's
determination that its standards, in the aggregate, are as protective
of public health and welfare as applicable federal standards. Second,
the amended regulations must not affect consistency with section 202(a)
of the Act. Third, the amended regulations must not raise any ``new
issues'' affecting EPA's prior authorizations.

B. Full Authorization Analysis

    As noted above, CARB's authorization request also included the Full
Authorization Amendments. EPA must grant an authorization of the Full
Authorization Amendments unless the Administrator finds: (1)
California's determination that its standards will be, in the
aggregate, as protective of public health and welfare as applicable
federal standards is arbitrary and capricious; (2) California does not
need such California standards to meet compelling and extraordinary
conditions; or (3) California's standards and accompanying enforcement
procedures are not consistent with this section.
    EPA's evaluation of the CHC Amendments, including the Within-the-
Scope Amendments and Full Authorization Amendments, is set forth below.
Because of the similarity of the within-the-scope criteria and the full
authorization criteria, a discussion of both sets of the respective
amendments take place within each authorization criterion. To the
extent that the criteria are applied uniquely, or that additional
criteria apply under either the within-the-scope analysis or the full
authorization analysis, such application is also addressed below.

C. California's Protectiveness Determination

    Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an
authorization if the agency finds that CARB 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 10-26, finding that ``the California
emission standards and other requirements related to the control of
emissions in the amended regulation are, in the aggregate, at least as
protective of public health and welfare than applicable federal
standards.'' \30\ CARB asserts that EPA has no basis to find that the
CARB Board's determination is arbitrary or capricious.\31\ CARB points
out that because the California and federal emission standards and test
procedures for off-road CI engines are essentially aligned, and because
California and federal off-road CI emission standards are generally
more stringent than the equivalent federal marine engine emission
standards, that EPA has no basis to find that the option to use the
off-road CI engines would cause the CHC Amendments to be less
protective.\32\ With respect to in-use engines, CARB maintains there is
no question that the option of using EPA or CARB Tier 2 or higher tier
certified off-road CI engines to meet the CHC regulation's in-use
requirements are more stringent than applicable federal regulations,
given that EPA is not authorized to regulate in-use off-road
engines.\33\ In addition, CARB notes that the Within-the-Scope
Amendments do not undermine the protectiveness determination made by
EPA in granting the initially authorized CHC regulation. As explained
above, CARB adopted the Within-the-Scope Amendments to accommodate
implementation and compliance issues that have arisen under the
original CHC regulations. Given that EPA has no authority to regulate
in-use engines, CARB notes that it is indisputable that its in-use
provisions are more stringent than non-existent ``applicable'' federal
requirements.
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    \30\ CARB Resolution 10-26, EPA-HQ-OAR-201-0534-0008.
    \31\ CARB Support Document at 7-8.
    \32\ Id. at 11. In addition, EPA's existing regulations for new
marine diesel engines also allow the use of certified off-road land-
based engines in marine vessels.
    \33\ Id. at 12.
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    After evaluating the materials submitted by CARB, and since EPA has
not adopted any standards or requirements for in-use CHC engines and
based on the lack of any comments submitted to the record, I cannot
find that California's Within-the-Scope Amendments undermine
California's previous determination that its standards, in the
aggregate, are at least as protective of public health and welfare as
applicable federal standards. Thus I cannot deny CARB's within-the-
scope request based on this criterion. Similarly, with regard to the
Full Authorization Amendments I cannot make a finding that CARB's
protectiveness determination is arbitrary and capricious and thus I
cannot deny CARB's Full Authorization Amendments based on this
criterion.

D. 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.''
EPA's inquiry under this second criterion (found both in paragraph
209(b)(1)(B) and 209(e)(2)(A)(ii)) has been to determine whether
California needs its own mobile source pollution program (i.e. set of
standards) for the relevant class or category of vehicles or engines
(e.g., on-highway mobile source or nonroad mobile source) to meet
compelling and extraordinary conditions, and not whether the specific
standards that are the subject of the authorization or waiver request
are necessary to meet such conditions.\34\
---------------------------------------------------------------------------

    \34\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887-18890
(May 3, 1984).
---------------------------------------------------------------------------

    California has asserted its longstanding position that the State
continues to need its own nonroad engine program to meet serious air
pollution problems.\35\ CARB notes that ``California, and particularly
the South Coast and San Joaquin Valley Air Basins, continue to
experience some of the worst air quality in the nation and continue to
be in non-attainment with national ambient air quality standards for
PM2.5 and ozone. The unique geographical and climatic
conditions, and the tremendous growth in on and off-road vehicle
population and use that moved Congress to authorize California to
establish separate on-road motor vehicle standards in 1967 and off-road

engine standards in 1990 still exists today.\36\
---------------------------------------------------------------------------

    \35\ See Waiver Support Document at p. 18.
    \36\ Id. See 74 FR 32744, 32762-32763 (July 8, 2009); 79 FR
6584, 6588-6590 (February 4, 2014).
---------------------------------------------------------------------------

    There has been no evidence submitted to indicate that California's
compelling and extraordinary conditions do not continue to exist.
California, including the South Coast and the San Joaquin Valley air
basins, continues to experience some of the worst air quality in the
nation and continues to be in non-attainment with national ambient air
quality standards for fine particulate matter (PM2.5) and
ozone.\37\ In addition, EPA is not aware of any other information that
would suggest that California no longer needs its nonroad emission
program.
---------------------------------------------------------------------------

    \37\ 74 FR 32744, 32762-63 (July 8, 2009), 76 FR 77515, 77518
(December 13, 2011), 81 FR 95982 (December 29, 2016). EPA
continually evaluates the air quality conditions in the United
States, including California. California continues to experience
some of the worst air quality in the country and continues to be in
nonattainment with National Ambient Air Quality Standards for fine
particulate matter and ozone, see ``Notice of Availability of the
Environmental Protection Agency's Preliminary Interstate Ozone
Transport Modeling Data for the 2015 Ozone National Ambient Air
Quality Standard (NAAQS)'' at EPA-HQ-OAR-2016-0751.
---------------------------------------------------------------------------

    Therefore, based on the record of this request and absence of
comments or other information to the contrary, I cannot find that
California does not continue to need such state standards, including
the CHC regulations, to address the ``compelling and extraordinary
conditions'' underlying the state's air pollution problems. I have
determined that I cannot deny California authorization for its Full
Authorization Amendments under section 209(e)(2)(A)(ii). As noted
above, EPA's within-the-scope analysis (that is applicable to the
Within-the-Scope Amendments) does not require an assessment of section
209(e)(2)(A)(ii).

E. Consistency With Section 209 of the Clean Air Act

    Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot
grant an authorization if California's standards and enforcement
procedures are not consistent with ``this section.'' As described
above, EPA's section 209(e) rule states that the Administrator shall
not grant authorization to California if she finds (among other tests)
that the ``California standards and accompanying enforcement procedures
are not consistent with section 209.'' EPA has interpreted this
requirement to mean that California standards and accompanying
enforcement procedures (under both the full authorization and the
within-the-scope analysis) must be consistent with at least sections
209(a), 209(e)(1), and 209(b)(1)(C), as EPA has interpreted this last
subsection in the context of motor vehicle waivers. Thus, this can be
viewed as a three-pronged test.
1. Consistency With Section 209(a) and 209(e)(1)
    To be consistent with section 209(a) of the Clean Air Act,
California's commercial harbor craft regulations must not apply to new
motor vehicles or new motor vehicle engines. California's commercial
harbor craft regulations apply to nonroad marine vessels and engines,
not on-highway motor vehicles or engines. CARB states that the new
vessel requirements regulate new diesel engines, and apply only to
nonroad engines that are neither new motor vehicles nor new motor
vehicle engines. No commenter presented otherwise; therefore, I cannot
deny California's request on the basis that California's commercial
harbor craft regulations are not consistent with section 209(a).
    To be consistent with section 209(e)(1) of the Clean Air Act,
California's commercial harbor craft regulations must not affect new
farming or construction vehicles or engines that are below 175
horsepower, or new locomotives or their engines. CARB represents that
commercial harbor craft engines are not used in locomotives and are not
primarily used in farm and construction equipment vehicles. No
commenter presented otherwise and EPA is otherwise not aware of any
information to the contrary; therefore, I cannot deny California's
request on the basis that California's commercial harbor craft
requirements are not consistent with section 209(e)(1).
2. 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 time. California's accompanying enforcement
procedures would also be inconsistent with section 202(a) if the
federal and California test procedures were not consistent. 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 procedure.\38\
---------------------------------------------------------------------------

    \38\ MEMA I, 627, F.2d at 1126.
---------------------------------------------------------------------------

    Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\39\ 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.\40\
---------------------------------------------------------------------------

    \39\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \40\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182,
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
---------------------------------------------------------------------------

    As described above, the Full Authorization Amendments require in-
use Tier 0 and Tier 1 propulsion and auxiliary marine engines on crew
and supply, barge, and dredge vessels to meet emission limits equal to
or cleaner than federal Tier 2 or Tier 3 new marine engine
certification standards in effect for the year that in-use engine
compliance is required (based on the model year of the in-use engine
and annual hours of operation). Vessel owners are provided the same
compliance options that were available to owners of Tier 0 and Tier 1
marine engines in the initial CHC regulations: (1) Replacing an in-use
engine with a new marine engine certified to applicable Tier 2 or Tier
3 marine standards, (2) demonstrating that the in-use marine engine
already meets the most stringent Tier 2 or Tier 3 marine standards in
effect for new engines of similar power rating and displacement, (e.g.,
utilizing engine rebuild kits or aftertreatment technologies), (3)
demonstrating that an in-use marine engine has not and will not operate
more than a specified number of hours per calendar year (300 hours for
crew and supply vessel engines or 80 hours for barge and dredge vessel
engines), or (4) using the flexibility provided through the exemptions
and compliance extensions of the regulation. CARB

notes ``In granting California the authorization for the original CHC
regulation, EPA stated that `no party objected to CARB's demonstration
that [compliance] technologies are in existence and are being used in
actual operation,' and also found no issue of incompatibility between
California and federal test procedures.'' \41\ CARB also notes that the
CHC Amendments now provide owners or operators the additional
compliance flexibility option of using CARB or EPA Tier 2 or higher
tier certified off-road CI engines to meet the requirements for
auxiliary or propulsion engines, so owners or operators may also elect
to comply with the amended in-use requirements by replacing an in-use
engine with a new off-road engine, or by demonstrating that an existing
in-use engine meets CARB or EPA Tier 2 or Tier 3 off-road CI engines
standards (e.g., through utilization of engine rebuild kits or
aftertreatment technologies).
---------------------------------------------------------------------------

    \41\ Waiver Support Document at 19 (citing EPA's authorization
at 76 FR 77521, 77527 (December 13, 2011).
---------------------------------------------------------------------------

    CARB maintains that the Within-the-Scope Amendments present no
issue regarding technical feasibility or inconsistent test procedures
as the amendments only maintain or relax the stringency of the original
CHC regulation's in-use requirements.
    EPA did not receive any comments suggesting that California's
commercial harbor craft regulations are technologically infeasible.
    Therefore, based on the record before us, I cannot find that the
CHC Amendments are technologically infeasible or otherwise inconsistent
with section 202(a). Therefore, I cannot deny CARB's authorization
request for the Full Authorization Amendments and likewise cannot deny
the within-the-scope request for the Within-the-Scope Amendments based
on the section 202(a) criterion.

F. New Issues

    EPA has stated in the past that if California promulgates
amendments that raise new issues affecting previously granted waivers
or authorizations, we would not confirm that those amendments are
within the scope of previous authorizations.\42\ I do not believe that
the Within-the-Scope Amendments raise any new issues with respect to
our prior granting of the authorization. Moreover, EPA did not receive
any comments that CARB's CHC Amendments raised new issues affecting the
previously granted authorization. Therefore, I cannot find that CARB's
Within-the-Scope Amendments raise new issues and consequently cannot
deny CARB's request based on this criterion.
---------------------------------------------------------------------------

    \42\ See, e.g., 78 FR 38970 (June 28, 2013), 75 FR 8056
(February 23, 2010), and 70 FR 22034 (April 28, 2005).
---------------------------------------------------------------------------

III. Decision

    After evaluating California's CHC Amendments and CARB's submissions
for EPA review as described above, I am taking the following actions.
First, I am granting an authorization for the Full Authorization
Amendments. Second, I confirm that the Within-the-Scope Amendments are
within-the scope of EPA's previous authorization.
    This decision will affect not only persons in California, but also
manufacturers and/or owners/operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(e)(2)(A) authorization
has been granted if certain criteria are met, this decision would also
affect those states and those persons in such states. See CAA section
209(e)(2)(B). For these reasons, EPA determines and finds that this is
a final action of national applicability, and also a final action of
nationwide scope or effect 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 March 20, 2017. 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: January 11, 2017.
Gina McCarthy,
Administrator.
[FR Doc. 2017-01261 Filed 1-18-17; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Notices]
[Pages 75367-75368]
[FR Doc No: 2023-24198]

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

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2023-0002-N-26]

Proposed Agency Information Collection Activities; Comment
Request

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Notice of information collection; request for comment.

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

SUMMARY: Under the Paperwork Reduction Act of 1995 (PRA) and its
implementing regulations, FRA seeks approval of the Information
Collection Request (ICR) summarized below. Before submitting this ICR
to the Office of Management and Budget (OMB) for approval, FRA is
soliciting public comment on specific aspects of the activities
identified in the ICR.

DATES: Interested persons are invited to submit comments on or before
January 2, 2024.

ADDRESSES: Written comments and recommendations for the proposed ICR
should be submitted on regulations.gov to the docket, Docket No. FRA-
2023-0002. All comments received will be posted without change to the
docket, including any personal information provided. Please refer to
the assigned OMB control number (2130-0566) in any correspondence
submitted. FRA will summarize comments received in a subsequent 30-day
notice and include them in its information collection submission to
OMB.

FOR FURTHER INFORMATION CONTACT: Ms. Arlette Mussington, Information
Collection Clearance Officer, at email: [email protected] or
telephone:<PHONE_NUMBER> or Ms. Joanne Swafford, Information
Collection Clearance Officer, at email: [email protected] or
telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The PRA, 44 U.S.C. 3501-3520, and its
implementing regulations, 5 CFR part 1320, require Federal agencies to
provide 60-days' notice to the public to allow comment on information
collection activities before seeking OMB approval of the activities.
See 44 U.S.C. 3506, 3507; 5 CFR 1320.8 through 1320.12. Specifically,
FRA invites interested parties to comment on the following ICR
regarding: (1) whether the information collection activities are
necessary for FRA to properly execute its functions, including whether
the activities will have practical utility; (2) the accuracy of FRA's
estimates of the burden of the information collection activities,
including the validity of the methodology and assumptions used to
determine the estimates; (3) ways for FRA to enhance the quality,
utility, and clarity of the information being collected; and (4) ways
for FRA to minimize the burden of information collection activities on
the public, including the use of automated collection techniques or
other forms of information technology. See 44 U.S.C. 3506(c)(2)(A); 5
CFR 1320.8(d)(1).
    FRA believes that soliciting public comment may reduce the
administrative and paperwork burdens associated with the collection of
information that Federal regulations mandate. In summary, comments
received will advance three objectives: (1) reduce reporting burdens;
(2) organize information collection requirements in a ``user-friendly''
format to improve the use of such information; and (3) accurately
assess the resources expended to retrieve and produce information
requested. See 44 U.S.C. 3501.
    The summary below describes the ICR that FRA will submit for OMB
clearance as the PRA requires:
    Title: Reflectorization of Rail Freight Rolling Stock.
    OMB Control Number: 2130-0566.
    Abstract: FRA issued this regulation to mandate the
reflectorization of freight rolling stock (using retroreflective
material on freight cars and locomotives) to enhance the visibility of
trains to reduce the number and severity of accidents at highway-rail
grade crossings where visibility was a contributing factor.\1\ FRA uses
the information collected to verify that the person responsible for the
car reporting mark is notified after the required visual inspection
when the freight equipment has less than 80 percent of the required
retroreflective sheeting present, undamaged, or unobscured.
---------------------------------------------------------------------------

    \1\ See 70 FR 144, Jan. 3, 2005.
---------------------------------------------------------------------------

    Moreover, FRA uses the information collected to verify that the
required locomotive records of retroreflective sheeting defects found,
after inspection, are kept in the locomotive cab or in a railroad
accessible electronic database that FRA can access upon request.
Finally, FRA uses the information collected to confirm that railroads/
car owners meet the prescribed standards for the inspection and
maintenance of the required retroreflective material.
    In this 60-day notice, FRA makes no adjustments to the previously
approved burden hours and responses in the Office of Information and
Regulatory Affairs (OIRA) inventory.\2\
---------------------------------------------------------------------------

    \2\ Changes to the total cost equivalent in U.S. dollars, a
category not included in the OIRA inventory, are due to updated
statistics from the 2022 Surface Transportation Board (STB) Full
Year Wage A&B data series.
---------------------------------------------------------------------------

    Type of Request: Extension without change of a currently approved
collection.
    Affected Public: Businesses.
    Form(s): N/A.
    Respondent Universe: 783 railroads and freight car owners.
    Frequency of Submission: On occasion/monthly.
    Reporting Burden:

----------------------------------------------------------------------------------------------------------------
                                                                                Total cost
         CFR section              Respondent      Total annual     Average time    Total annual    equivalent in
                                   universe        responses       per response    burden hours     U.S dollar
                                                (A)............  (B)............     (C = A * B)   (D = C * wage
                                                                                rates) \3\
----------------------------------------------------------------------------------------------------------------
224.7--Waivers...............  783 railroads &  10 petitions...  8 hours........           80.00       $6,874.40
                                freight car
                                owners.
224.15(b)--Special approval    2 manufacturers  2 petitions....  40 hours.......           80.00        6,874.40
 procedures--Petitions for
 special approval of
 alternative standard.
                              ----------------------------------------------------------------------------------
    --(d)(3) Hearing on the     FRA anticipates that there will be zero hearings during this 3-year ICR period.
     petition in accordance
     with the procedures
     provided in Sec.
     211.25.
                              ----------------------------------------------------------------------------------
    --(e) Disposition of                  This requirement is exempted from PRA under 5 CFR 1320.4(2).
     petitions.
                              ----------------------------------------------------------------------------------
224.101--General requirements      The estimated paperwork burden for this requirement is covered under Sec.
                                                                     224.15.
                              ----------------------------------------------------------------------------------
224.103(d)--Characteristics    The requirements for this part are included as part of the standard manufacturing
 retroreflective sheeting--                                         process.
 Certification.
                              ----------------------------------------------------------------------------------
224.103(e)--Characteristics        The estimated paperwork burden for this requirement is covered under Sec.
 retroreflective sheeting--                                          224.15.
 Alternative standards.
                              ----------------------------------------------------------------------------------
224.109(a)--Inspection,        Association of   33,380           5 minutes......        2,781.67      186,677.87
 repair, and replacement--      American         notifications.
 Railroad freight cars--        Railroads/300
 Railroads notification to      car shops.
 person responsible for
 reporting mark after visual
 inspection for presence and
 condition when freight car
 on either side has less than
 80% reflective sheeting of
 the damaged, obscured, or
 missing sheeting.
    --(b) Locomotive record    783 railroads &  2,609 records..  5 minutes......          217.42       14,591.06
     of freight                 freight car
     retroreflective sheeting   owners.
     defects found after
     inspection kept in
     locomotive cab or in
     railroad accessible
     electronic database that
     FRA can access upon
     request.
                                                                                -------------------------------
        Total \4\............  783 railroads &  36,001           N/A............           3,159         215,017
                                freight car      responses.
                                owners.
----------------------------------------------------------------------------------------------------------------

    Total Estimated Annual Responses: 36,001.
---------------------------------------------------------------------------

    \3\ The dollar equivalent cost is derived from the 2022 STB Full
Year Wage A&B data series using the employee group 200:
(Professional & Administrative), hourly wage rate of $49.10, and
group 400 (Maintenance of Equipment & Stores). The total burden wage
rate, (Straight time plus 75%), used in the table is $85.93 ($49.10
x 1.75 = $85.93), except for sections 224.109(a) and 224.109(b)
which used $67.11 ($38.35 x 1.75 = $67.11).
    \4\ Totals may not add due to rounding.
---------------------------------------------------------------------------

    Total Estimated Annual Burden: 3,159.
    Total Estimated Annual Burden Hour Dollar Cost Equivalent:
$215,017.
    FRA informs all interested parties that it may not conduct or
sponsor, and a respondent is not required to respond to, a collection
of information that does not display a currently valid OMB control
number.

    Authority: 44 U.S.C. 3501-3520.

Christopher S. Van Nostrand,
Acting Deputy Chief Counsel.
[FR Doc. 2023-24198 Filed 11-1-23; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register Volume 76, Number 36 (Wednesday, February 23, 2011)]
[Rules and Regulations]
[Pages 9967-9968]
[FR Doc No: 2011-3943]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2010-0815; Airspace Docket No. 10-ANE-107]

Removal and Amendment of Class E Airspace, Oxford, CT

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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

SUMMARY: This action removes Class E surface airspace as an extension
to Class D airspace, and amends Class E airspace extending upward from
700 feet at Oxford, CT. Decommissioning of the Waterbury Non-
Directional Beacon (NDB) at the Waterbury-Oxford airport has made this
action necessary for the safety and management of Instrument Flight
Rules (IFR) operations at the airport.

DATES: Effective 0901 UTC, May 5, 2011. The Director of the Federal
Register approves this incorporation by reference action under title 1,
Code of Federal Regulations, part 51, subject to the annual revision of
FAA order 7400.9 and publication of conforming amendments.

FOR FURTHER INFORMATION CONTACT: Richard Horrocks, Operations Support
Group, Eastern Service Center, Federal Aviation Administration, P.O.
Box 20636, Atlanta, Georgia 30320; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

History

    On August 26, 2010, the FAA published in the Federal Register a
notice of proposed rulemaking to remove and amend Class E airspace at
Waterbury-Oxford Airport, Oxford, CT (75 FR 52484). Interested parties
were invited to participate in this rulemaking effort by submitting
written comments on the proposal to the FAA. No comments were received.
Class E airspace designations are published in Paragraph 6004 and 6005,
respectively, of FAA order 7400.9U, signed August 18, 2010, and
effective September 15, 2010, which is incorporated by reference in 14
CFR 71.1. The Class E airspace designations listed in this document
will be published subsequently in the Order.

The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR)
part 71 removes the Class E surface airspace as an extension to Class D
airspace and amends the description of the Class E airspace extending
upward 700 feet above the surface at Oxford-Waterbury Airport, Oxford,
CT. The Waterbury NDB has been decommissioned and reference to the
navigation aid is being removed from the airspace description for the
safety and management of IFR operations at Waterbury-Oxford Airport.
    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current. It
therefore, (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this proposed rule, when promulgated, would not have a
significant economic impact on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This proposed rulemaking is promulgated under the authority
described in subtitle VII, part, A, subpart I, section 40103. Under
that section, the FAA is charged with prescribing regulations to assign
the use of airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This proposed regulation is within the scope
of that authority as it would amend controlled airspace at Waterbury-
Oxford Airport, Oxford, CT.

Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (Air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND CLASS E AIRSPACE
AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for part 71 continues to read as follows:

    Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation
Administration Order 7400.9U, Airspace Designations and Reporting
Points, signed August 18, 2010, effective September 15, 2010, is
amended as follows:

Paragraph 6004 Class E Airspace Areas Designated as an Extension to
a Class D Surface Area

* * * * *

ANE CT E4 Oxford, CT [REMOVED]

* * * * *

Paragraph 6005 Class E Airspace Areas Extending Upward from 700
Feet or More Above the Surface of the Earth.

* * * * *

ANE CT E5 Oxford, CT [AMENDED]

Waterbury-Oxford Airport, CT
    (Lat. 41[deg]28'43'' N., long. 73[deg]08'07'' W.)

That airspace extending upward from 700 feet above the surface
within an 8-mile radius of the Waterbury-Oxford Airport.

    Issued in College Park, Georgia, on February 11, 2011.
Mark D. Ward,
Manager, Operations Support Group, Eastern Service Center, Air Traffic
Organization.
[FR Doc. 2011-3943 Filed 2-22-11; 8:45 am]
BILLING CODE 4910-13-P