California State Nonroad Engine Pollution Control Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road Compression-Ignition Regulations; Exhaust Emission Certification Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and Vehicles Regulations; Notice of Decision, 76971-76979 [2015-31189]
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Federal Register / Vol. 80, No. 238 / Friday, December 11, 2015 / Notices
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NE., Washington, DC 20426.
Comment Date: 5:00 p.m. Eastern
Time on December 28, 2015.
Dated: December 7, 2015.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2015–31214 Filed 12–10–15; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
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Dated: December 7, 2015.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2015–31211 Filed 12–10–15; 8:45 am]
BILLING CODE 6717–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OAR–2014–0535; FRL 9939–94–
OAR]
California State Nonroad Engine
Pollution Control Standards; Small OffRoad Engines Regulations; Tier 4 OffRoad Compression-Ignition
Regulations; Exhaust Emission
Certification Test Fuel for Off-Road
Spark-Ignition Engines, Equipment,
and Vehicles Regulations; Notice of
Decision
Environmental Protection
Agency.
ACTION: Notice of Decision.
AGENCY:
The Environmental Protection
Agency (EPA) is confirming that the
California Air Resources Board’s
(CARB’s) 2011 amendments to its Small
Off-Road Engines (SORE) regulations
(2011 SORE amendments), Tier 4 OffRoad Compression-Ignition (CI)
regulations (2011 Tier 4 amendments),
and Exhaust Emission Certification Test
Fuel for Off-Road Spark-Ignition (SI)
Engines, Equipment, and Vehicles
regulations (2011 Certification Test Fuel
amendments) are within the scope of
previous EPA authorizations. The 2011
SORE amendments modify California’s
existing SORE test procedures by
aligning California procedures to be
consistent with recent amendments by
EPA to the federal certification and
exhaust emission testing requirements.
SUMMARY:
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The 2011 Tier 4 amendments enhance
the harmonization of CARB’s exhaust
emission requirements for new off-road
CI engines with the corresponding
federal emissions requirements for
nonroad CI engines. The 2011
Certification Test Fuel amendments
modify the certification test fuel
requirements for off-road spark ignition,
gasoline-fueled engines to allow the use
of 10-percent ethanol-blend gasoline
(E10) as a certification fuel. This
decision is issued under the authority of
the Clean Air Act (‘‘CAA’’ or ‘‘Act’’).
Petitions for review must be filed
by February 9, 2016.
DATES:
EPA has established a
docket for this action under Docket ID
EPA–HQ–OAR–2014–0535. 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 https://www.epa.gov/
oar/docket.html. The electronic mail
(email) address for the Air and
Radiation Docket is: a-and-r-Docket@
epa.gov, the telephone number is (202)
566–1742, and the fax number is (202)
566–9744. An electronic version of the
public docket is available through the
federal government’s electronic public
docket and comment system. You may
access EPA dockets at https://
www.regulations.gov. After opening the
www.regulations.gov Web site, enter
EPA–HQ–OAR–2014–0535 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 and
authorization 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
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ADDRESSES:
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accessed at https://www.epa.gov/otaq/
cafr.htm.
FOR FURTHER INFORMATION CONTACT:
Brenton Williams, Attorney-Advisor,
Compliance Division, Office of
Transportation and Air Quality, U.S.
Environmental Protection Agency, 2000
Traverwood Drive, Ann Arbor, MI
48105. Telephone: (734) 214–4341. Fax:
(734) 214–4053. Email: williams.brent@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. 2011 SORE Amendments
CARB includes within its SORE
regulations small off-road engines and
equipment 1 rated at or below 19
kilowatts (kW) (25 horsepower (hp)).
The vast majority of engines covered by
the SORE regulations are SI engines that
are used to power a broad range of
equipment, including lawn mowers, leaf
blowers, generators, and small
industrial equipment. Exhaust and
evaporative emissions from these
engines are a significant source of
hydrocarbons and oxides of nitrogen,
pollutants that contribute to smog
problems in California.
CARB first adopted standards and test
procedures applicable to SORE in 1992.
In 1993, CARB amended these
regulations to delay their
implementation until 1995. EPA
authorized these initial SORE
regulations in 1995.2 California
subsequently amended its regulations in
1994, 1995, and 1996 to clarify
certification and implementation
procedures, exempt military tactical
equipment, and relax emissions
standards for certain engines. EPA
confirmed these three amendment
packages as within the scope of
previous authorizations in 2000.3
In 1998, CARB amended the SORE
regulation to apply to all engines rated
less than 19 kW used in off-road
applications. The 1998 amendments
also revised the regulations to be based
on engine displacement instead of
whether the engine is used in a
handheld or non-handheld application,
delayed implementation of certain
portions of the standards, and adopted
new emission standards for new engines
under 19 kW. EPA confirmed these
amendments to be within the scope of
previous authorizations in 2000.4
In 2004, CARB amended its off-road
CI regulations to match federal
1 The federal term ‘‘nonroad’’ and the California
term ‘‘off-road’’ are used interchangeably.
2 60 FR 37440 (July 20, 1995).
3 65 FR 69763 (November 20, 2000).
4 Id. at 69767.
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standards and exhaust emissions
standards, and adopted evaporative
emissions standards for small off-road
SI engines rated at or below 19 kW. EPA
granted a full authorization for these
amendments in 2006.5 CARB adopted
additional SORE amendments in 2008
which modified the emission credits
program to provide manufacturers with
additional flexibility and permitted the
use of certification fuels with up to ten
volume percent ethanol content,
provided that the same fuel is used for
certification with the EPA. EPA found
these amendments to be within the
scope of previous authorizations in
2015.6
B. 2011 Tier 4 Amendments
The second element of CARB’s
request is amendments to its nonroad
regulations that include CI engines used
in tractors, excavators, dozers, scrapers,
portable generators, transport
refrigeration units, irrigation pumps,
welders, compressors, scrubbers, and
sweepers.7 In 1992, CARB approved a
regulation to control exhaust emissions
from heavy-duty off-road CI engines 175
hp and above.8 EPA granted
authorization in 1995.9 In 2000 CARB
harmonized California’s emission
standards and test procedures to federal
standards that EPA promulgated in 1998
for the same nonroad CI engine
categories (Tier 1 through Tier 3).10 In
2004–2005 CARB generally harmonized
California’s Tier 4 standards to the
federal Tier 4 standards for these same
off-road CI engines that EPA adopted in
2004.11 EPA confirmed that the 2000
amendments to the smallest category of
engines (less than 19 kW) were within
the scope of previous authorizations.12
EPA granted full authorizations for the
2004–2005 amendments as they affected
new off-road CI engines less than 19
kW, and for the 2000 and 2004–2005
amendments as they affected new offroad CI engines for the other two power
categories (19 kW–130 kW and greater
than 130 kW).13
C. 2011 Certification Test Fuel
Amendments
The third element of CARB’s request
is amendments to its Exhaust Emission
Certification Test Fuel for Off-Road SI
5 71
FR 75536 (December 15, 2006).
FR 26041 (May 6, 2015).
7 See EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 4.
8 Id.
9 60 FR 37440 (July 5, 1995).
10 See EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 5.
11 Id.
12 75 FR 8056 (February 23, 2010).
13 Id.
6 80
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Engines, Equipment, and Vehicles
regulations. Prior to these amendments,
California’s SORE and Large Spark
Ignition (LSI) test procedures allowed
gasoline-fueled, SI engines to be tested
for compliance with certification
exhaust standards using either Indolene
or Phase 2 California Reformulated
Gasoline (CaRFG2) 14 as an option to
federally specified test fuels.
Recreational Marine engines were
permitted to use CaRFG2, federal
Indolene, or the fuel specified in Table
3 of Appendix A to 40 CFR part 91,
subpart D. Off Highway Recreational
Vehicles (OHRV) that were categorized
as off-road motorcycles were required to
certify using Indolene. OHRVs that were
categorized as go-karts and specialty
vehicles were allowed to certify using
either Indolene or CaRFG2, and OHRVs
that were categorized as all-terrain
vehicles (ATVs) were primarily required
to use Indolene, but under certain
circumstances were allowed to certify
using CaRFG2.15
The initial SORE regulation and the
1993 amendments to the SORE
regulation allowed manufacturers to
utilize either Indolene or California
Phase 1 fuel as test fuel for
certification.16 EPA granted California a
full authorization for the initial SORE
regulation and the 1993 amendments.17
In 1994 CARB amended the SORE
regulation to provide manufacturers the
option to certify SORE engines using
CaRFG2 that was consistent with the
certification test fuel specified for onroad motor vehicles. EPA confirmed
that the 1994 amendment was within
the scope of the previous
authorizations.18 In 2008, EPA
confirmed that allowing the use of 10percent ethanol-blend of gasoline (E10)
as a certification fuel for SORE was
within the scope of previous
authorizations.19
The initial LSI regulation specified
that the certified gasoline test fuels for
LSI engines were either Indolene or
CaRFG2. EPA granted California a new
14 Phase 1 CaRFG, which was implemented in
1992, eliminated lead from gasoline and set
regulations for deposit control additives and reid
vapor pressure (RVP). Phase 2 CaRFG (CaRFG2),
which was implemented in 1996, set specifications
for sulfur, aromatics, oxygen, benzene, T50, T90,
Olefins, and RVP and established a Predictive
Model. Phase 3 CaRFG (CaRFG3), which was
implemented in 1999, eliminated methyl-tertiarybutyl-ether from California gasoline.
15 See EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 9.
16 Id. at 8.
17 60 FR 37440 (July 20, 1995).
18 65 FR 69763 (November 20, 2000).
19 80 FR 26041 (May 6, 2015).
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authorization for the initial LSI
regulation on May 15, 2006.20
The initial CARB Marine SI Engine
regulation applicable to 2001 and later
model year outboard SI marine engines
and personal watercraft engines
established test procedures that were
virtually identical to those in the federal
SI Marine Engine regulations. In 2002
CARB adopted regulations establishing
exhaust emission standards and related
certification and test procedures for
2003 and later model year SI inboard
and sterndrive marine engines that
specified the same certification test
fuels as those applicable to outboard
engines and personal water craft.21 EPA
granted California an authorization for
these regulations in 2007.22
EPA granted California a new
authorization for the initial OHRV
regulation, which included initial test
fuel certification requirements, in
1996,23 and confirmed that 1996
amendments to the OHRV regulation
were within the scope of the initial
authorization in 2000.24
D. California’s Authorization Request
By letter dated June 13, 2014, CARB
submitted a request to EPA pursuant to
section 209(e) of the Act for
authorization of its 2011 SORE
amendments, 2011 Tier 4 amendments,
and 2011 Certification Test Fuel
amendments (with all three sets of
amendments collectively known as the
‘‘2011 Amendments’’). CARB sought
EPA’s confirmation that the 2011
Amendments fell within the scope of
EPA’s previous authorizations, or, in the
alternate, a full authorization for those
amendments.
1. 2011 SORE Amendments
CARB approved the 2011 SORE
amendments at issue on December 16,
2011, and adopted them on October 25,
2012.25 The 2011 SORE amendments
became operative on January 10, 2013.26
The 2011 SORE amendments modify
California’s existing SORE test
procedures by aligning California
procedures to be consistent with recent
amendments by EPA to the federal
certification and exhaust emission
testing requirements at 40 CFR parts
20 71
FR 29623 (May 23, 2006).
EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 9.
22 72 FR 14546 (March 28, 2007).
23 61 FR 69093 (December 31, 1996).
24 65 FR 69763 (November 20, 2000).
25 See EPA–HQ–OAR–2014–0535–0008,
‘‘Enclosure 5 CARB Resolution 11–41’’, and EPA–
HQ–OAR–2014–0535–0009, ‘‘Enclosure 6 Executive
Order R–12–005’’.
26 Id.
21 See
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76973
1054 and 1065.27 Part 1054 contains
certification protocols, production-line
testing requirements, credit-generation
allowances, and other related provisions
applicable to federally certified engines.
Since CARB had previously
promulgated California-specific versions
of these provisions for SORE engines,
the 2011 SORE amendments adopted
the language of CFR part 1054, but with
modifications that substitute
California’s specific emission standards,
production-line testing requirements
and credit-allowances for the
corresponding federal provisions.28 Part
1065 specifies the ‘‘state-of-the-art’’
testing equipment, systems, and
processes that must be utilized in
conducting emissions testing of
applicable engines. The 2011 SORE
amendments align California test
procedures for 2013 and later model
year engines with the requirements
specified in Part 1065.29
2. 2011 Tier 4 Amendments
CARB approved the Tier 4
amendments at issue on December 16,
2011, and adopted them on October 25,
2012.30 The 2011 Tier 4 amendments
became operative on January 10, 2013.31
The 2011 Tier 4 amendments enhance
the harmonization of CARB’s exhaust
emission requirements for new off-road
CI engines with the corresponding
federal emissions requirements for
nonroad CI engines set forth in CFR
parts 1039, 1065, and 1068.32 EPA most
recently amended these Parts in 2011.33
The 2011 Tier 4 amendments correct
clerical errors, standardize measurement
specifications, calibrations, and
instrumentation, remove unnecessarily
burdensome reporting requirements,
and provide additional compliance
flexibility options.34 The 2011 Tier 4
amendments also incorporate EPA’s
anti-stockpiling provisions, which help
ensure the realization of projected
emission benefits, and also establish a
new interim Tier 4 combined
hydrocarbon plus oxides of nitrogen
emission standard that has the potential
27 See EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’.
28 Id.at 11.
29 Id.at 11.
30 See EPA–HQ–OAR–2014–0535–0008,
‘‘Enclosure 5 CARB Resolution 11–41’’, and EPA–
HQ–OAR–2014–0535–0009, ‘‘Enclosure 6 Executive
Order R–12–005’’.
31 Id.
32 See EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 12.
33 76 FR 37977 (June 28, 2011).
34 See EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 13–
18.
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to provide additional emission
benefits.35
3. 2011 Certification Test Fuel
Amendments
The 2011 Certification Test Fuel
amendments modify the certification
test fuel requirements for off-road spark
ignition, gasoline-fueled engines to
allow the use of 10-percent ethanolblend of gasoline (E10) as a certification
fuel. The use of the E10 certification
fuel is allowed as an option for
certification exhaust emission testing of
new gasoline-fueled SORE, LSI,
Recreational Marine, and OHRV off-road
categories from the 2013 through 2019
model years, and is mandatory for
certification exhaust emission testing of
these categories beginning with the 2020
model year.36
E. 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.37 For
all other nonroad engines (including
‘‘non-new’’ engines), states generally are
preempted from adopting and enforcing
standards and other requirements
relating to the control of emissions,
except that section 209(e)(2)(A) 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 enumerated findings.
Specifically, EPA must deny
authorization if the Administrator finds
that (1) California’s protectiveness
determination (i.e., that California
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 standards to meet
compelling and extraordinary
conditions, or (3) the California
standards and accompanying
enforcement procedures are not
consistent with section 209 of the Act.
On July 20, 1994, EPA promulgated a
rule interpreting the three criteria set
35 Id.
at 2.
EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 18.
37 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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forth in section 209(e)(2)(A) that EPA
must consider before granting any
California authorization request for
nonroad engine or vehicle emission
standards.38 EPA revised these
regulations in 1997.39 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.40
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, or (2) the federal and
state testing procedures impose
inconsistent certification requirements.
In light of the similar language of
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
38 See ‘‘Air Pollution Control; Preemption of State
Regulation for Nonroad Engine and Vehicle
Standards,’’ 59 FR 36969 (July 20, 1994).
39 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.
40 See supra note 12. EPA has interpreted
209(b)(1)(C) in the context of section 209(b) motor
vehicle waivers.
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reviewing requests for waivers of
preemption for new motor vehicle or
new motor vehicle engine standards
under section 209(b).41 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),42 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:
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.43
This principle of narrow EPA review
has been upheld by the U.S. Court of
Appeals for the District of Columbia
Circuit.44 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).
F. 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
41 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 § 209(e) on nonroad sources to § 209(a)
on motor vehicles.’’
42 See supra note 12, at 36983.
43 ‘‘Waiver of Application of Clean Air Act to
California State Standards,’’ 36 FR 17458 (August
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.
44 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA,
627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’).
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amendments is permissible without a
full authorization review 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.45
G. Deference to California
In previous waiver 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. This
has led EPA to state:
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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.46
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.47
The House Committee Report
explained as part of the 1977
amendments to the Clean Air Act,
where Congress had the opportunity to
restrict the waiver provision, it elected
instead to explain California’s flexibility
to adopt a complete program of motor
45 See ‘‘California State Motor Vehicle Pollution
Control Standards; Amendments Within the Scope
of Previous Waiver of Federal Preemption,’’ 46 FR
36742 (July 15, 1981).
46 40 FR 23103–23104 (May 28, 1975); see also
LEV I Decision Document at 64 (58 FR 4166
(January 13, 1993)).
47 40 FR 23104; 58 FR 4166.
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vehicle emission controls. The
amendment is intended to ratify and
strengthen the California waiver
provision and to affirm the underlying
intent of that provision, i.e., to afford
California the broadest possible
discretion in selecting the best means to
protect the health of its citizens and the
public welfare.48
H. Burden and Standard of Proof
As the U.S. Court of Appeals for the
DC 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.49
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.’ ’’ 50 Therefore, the
Administrator’s burden is to act
‘‘reasonably.’’ 51
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.52
In that decision, the court considered
the standards of proof under section 209
for the two findings related to granting
a waiver for an ‘‘accompanying
enforcement procedure.’’ Those findings
involve: (1) Whether the enforcement
48 MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No.
294, 95 Cong., 1st Sess. 301–02 (1977).
49 MEMA
I, supra note 19, at 1121.
50 Id. at 1126.
51 Id. at 1126.
52 Id. at 1122.
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procedures impact California’s prior
protectiveness determination for the
associated standards, and (2) whether
the procedures are consistent with
section 202(a). The principles set forth
by the court, however, are similarly
applicable to an EPA review of a request
for a waiver of preemption for a
standard. 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.’’ 53
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.54 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.55
With respect to the consistency
finding, the court did not articulate a
standard of proof applicable to all
proceedings, but found that the
opponents of the waiver were unable to
meet their burden of proof even if the
standard were a mere preponderance of
the evidence. Although MEMA I did not
explicitly consider the standards of
proof under section 209 concerning a
waiver request for ‘‘standards,’’ as
compared to a waiver request for
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.’’ 56
I. EPA’s Administrative Process in
Consideration of California’s
Amendment Requests for Authorization
On November 21, 2014, EPA
published a Federal Register notice
announcing its receipt of California’s
53 Id.
54 Id.
55 Id.
56 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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authorization request. In that notice,
EPA invited public comment on the
2011 SORE amendments, the 2011 Tier
4 amendments, and 2011 Certification
Test Fuel amendments (collectively
known as the 2011 Amendments) and
an opportunity to request a public
hearing.57
EPA requested comment on the 2011
Amendments, as follows: (1) Should
California’s amendments be considered
under the within-the-scope analysis, or
should they be considered under the
full authorization criteria?; (2) If those
amendments should be considered as a
within-the-scope request, do they meet
the criteria for EPA to grant a withinthe-scope confirmation?; and (3) If the
amendments should not be considered
under the within-the-scope analysis, or
in the event that EPA determines they
are not within the scope of the previous
authorization, do they meet the criteria
for making a full authorization
determination?
EPA received no written comments.
Additionally, EPA received no requests
for a public hearing. Consequently, EPA
did not hold a public hearing.
II. Discussion
A. California’s 2011 SORE Amendments
The 2011 SORE amendments
incorporate provisions of 40 Code of
Federal Regulations (CFR) Parts 1054
and 1065 into the test procedures
applicable to 2013 and later model year
engines, and incorporate citations to the
newly modified test procedures. The
2011 SORE amendments dealt with
three specific topics: (1) Improved
alignment with 40 CFR part 1054; (2)
improved alignment with 40 CFR part
1065; and (3) amendments to CA-Part
1065 that maintain differences between
California and EPA test procedures.
CARB asserts that the 2011 SORE
amendments do not affect the stringency
of the exhaust emission standards and
associated test procedures for SORE
engines.
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1. Improved Alignment With Part 1054
Part 1054 contains certification
protocols, production-line testing
requirements, credit-generation
allowances, and other related provisions
applicable to federally certified engines.
Since CARB had already promulgated
California-specific versions of these
57 See ‘‘California State Nonroad Engine Pollution
Control Standards; Small Off-Road Engines
Regulations; Tier 4 Off-Road Compression-Ignition
Regulations; Exhaust Emission Certification Test
Fuel for Off-Road Spark-Ignition Engines,
Equipment, and Vehicles Regulations; Request for
Within-the-Scope and Full Authorization;
Opportunity for Public Hearing and Comment,’’ 79
FR 69465 (November 21, 2014).
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provisions for SORE engines, the 2011
SORE amendments adopted language
similar to Part 1054, but with
modifications that substitute
California’s specific emission standards,
production-line testing requirements
and credit-generations allowances for
the corresponding federal provisions.58
2. Improved Alignment With Part 1065
Part 1065 specifies the ‘‘state-of-theart’’ testing equipment, systems, and
processes that must be utilized in
conducting emissions testing of
applicable engines. The 2011 SORE
amendments largely align the test
procedures applicable to 2013 and later
model year engines with the
requirements specified in Part 1065, and
will therefore prevent the need for
manufacturers to conduct separate
emissions tests for certifying engines
with EPA and CARB.59 Additionally,
CARB states that a majority of engine
manufacturers had already upgraded
their test equipment in order to be
compliant with Part 1065, and not
aligning California and federal test
procedures would mean that the use of
the existing California test procedures
would become increasingly impractical
for manufacturers, independent testing
facilities, and CARB.60 CARB adopted
Part 1065 into the SORE test procedures
except for the modifications discussed
below.
3. Amendments to CA-Part 1065 that
Maintain Differences between California
and EPA Test Procedures
The 2011 SORE amendments
maintain California-specific
requirements applicable to new 2013
and later model year SORE engines in
the following areas: Allowance for
supplemental engine cooling,
measurement of particulate matter (PM)
emissions from two-stroke engines, and
exhaust emission certification test fuel
requirements (discussed later in the
decision).61 CARB believes that the
existing California provisions in the
SORE test procedures regarding
supplemental cooling are more
representative of in-use conditions than
the corresponding federal provision,
and are needed to maintain the
stringency of California’s existing test
procedures. The California provisions
require that manufacturers justify the
need for and the use of any auxiliary
fans used to provide supplemental
cooling, and further require that
58 See EPA–HQ–OAR–2014–0535–0003, ‘‘2013–
13–14 Auth Support Document SORE 2011’’ at 11.
59 Id. at 11.
60 Id.
61 Id. at 12.
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manufacturers demonstrate that the
supplemental cooling is representative
of in-use engine operation. CARB’s
SORE emission standards include a PM
emissions standard for two-stroke
engines while EPA’s small nonroad
engine standards do not.62 California’s
existing regulations provide
manufacturers the option of
demonstrating compliance with the PM
standard for two-stroke engines by using
measured hydrocarbon emissions as a
surrogate in lieu of determining actual
PM emission levels.63 CARB determined
that extending this option was
warranted as it provides manufacturers
flexibility in conducting the testing
required for demonstrating emissions
compliance, without affecting the
stringency of the current PM emission
standards.
B. California’s 2011 Tier 4 Amendments
The 2011 Tier 4 amendments enhance
the harmonization of CARB’s exhaust
emission requirements for new off-road
CI engines with the corresponding
federal emissions requirements for
nonroad CI engines in 40 CFR parts
1039, 1065, and 1068, as most recently
amended by EPA in 2011.64 CARB states
that the amendments correct clerical
errors, standardize measurement
specifications, calibrations, and
instrumentation, remove unnecessarily
burdensome reporting requirements,
and provide additional compliance
flexibility options without sacrificing air
quality benefits.65 The 2011 Tier 4
amendments dealt with three specific
areas: (1) Modifications to Tier 4 offroad CI exhaust emission standards; (2)
updated test procedures; and (3)
amendments that maintain needed
differences between California and EPA
Nonroad CI programs.
1. Modifications to Tier 4 Off-Road CI
Exhaust Emission Standards
The 2011 Tier 4 amendments aligned
with the federal alternate combined
oxides of nitrogen and non-methane
hydrocarbons (ALT NOX + NMHC)
standards and the corresponding family
emission limit (FEL) caps for Tier 4
engines ranging from 56 kW through
560 kW.66 The amendments corrected
clerical errors that unintentionally
limited the years of applicability for
several alternative FEL caps erroneously
identified in the regulations and test
procedures. The California Tier 4 OffRoad CI regulation and the federal Tier
62 Id.
63 Id.
64 Id.
at 13.
65 Id.
66 Id.
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4 nonroad CI regulation allowed engine
manufacturers to continue producing a
small number of Tier 3 off-road CI
engines using emission credits after the
Tier 4 standards began.67 However, both
the original EPA and California
regulations inadvertently hindered
manufacturers from using these
certification allowances because the
Tier 4 averaging programs did not allow
manufacturers to show compliance with
the existing 0.19 g/kW-hr NMHC
standard using credits. To correct this,
the 2011 Tier 4 amendments establish
new Tier 4 alternative combined NOX +
NMHC standards for off-road CI engines
that align with the amendments to
EPA’s nonroad CI regulation in 2007,
which similarly provides manufacturers
the option to use credits to show
compliance with the new alternative
NOX + NMHC standards for engines
ranging from 56 kW through 560 kW.68
The 2011 Tier 4 amendments also revise
the start dates for the ALT 20% NOX
FEL caps to correct an inconsistency in
a regulatory table regarding the period
of applicability for certifying engines to
the ALT 20% NOX FEL caps that stated
the period was only one or two years to
the correct four-year period.69
2. Updated Test Procedures
The 2011 Tier 4 amendments
primarily revise California’s Tier 4 offroad CI engine test procedures to align
them with the modifications to the
corresponding federal nonroad CI
engine test procedures that have been
enacted by EPA since 2005 to improve
the accuracy and precision of the
measurement and reporting of emissions
data. The new California off-road CI
engine test procedures are comprised of
three separate documents that largely
incorporate provisions of the federal test
procedures contained in 40 CFR parts
1039, 1065, and 1068, but that also
incorporate several California-specific
modifications.70
The 2011 Tier 4 amendments
incorporate EPA’s June 28, 2011
modifications to Part 1039 into the new
test procedure entitled ‘‘California
Exhaust Emission Standards and Test
Procedures for New 2011 and Later Tier
4 Off-Road Compression Ignition
Engines, Part I–D’’. Included among the
alignments are modification of the
criterion for selecting engine families
regarding engine cylinder arrangement
(§ 1039.230(b)(7)), removal of
unnecessary and/or redundant labeling
and notification instructions regarding
the equipment manufacturer flexibility
program (§ 1039.625), correction of
clerical errors that inadvertently
elevated the minimum standard for
equipment flexibility engines beyond
that originally intended
(§ 1039.625(e)(3)), and clarification
regarding the rounding of Averaging,
Banking, and Trading credits
(§ 1039.705(b)).71
The 2011 Tier 4 amendments deleted
CARB’s existing CA-Part 1065-based test
procedures and created a brand-new
version in Part I–E based solely on
CARB’s modifications to EPA’s 40 CFR
1065 as it existed on June 28, 2011.72
The California alignments with 40 CFR
1065 included in the 2011 Tier 4
amendments are provisions for using
and calculating an optional declared
speed value (§ 1065.510(f)(3)(i)), and
provisions regarding the standardization
of calculating exhaust restriction set
points (§ 1065.130(h)).73
The 2011 Tier 4 amendments
incorporate EPA’s modifications to 40
CFR part 1068 into the new test
procedure entitled ‘‘California Exhaust
Emission Standards and Test
Procedures for New 2011 and Later Tier
4 Off-Road Compression Ignition
Engines, Part I–F’’. The 2011 Tier 4
amendments included alignments
regarding allowance for distributors to
replace incorrect labels prior to sale of
the engine to an ultimate purchaser
(§ 1068.101(b)(7)(i)(D)), incorporation of
provisions related to the duration and
applicability of Executive Orders
(§ 1068.103(c)), incorporation and
clarification of anti-stockpiling
provisions (§ 1068.103 and 105),
revisions to the label content for
replacement engines (§ 1068.240),
clarification of the provisions for
shipping engines independently of
required after treatment and for
delegated final assembly (§ 1068.260
and 261), clarification that defect
reporting applies only to regulated
pollutants and revision of thresholds for
filing reports (§ 1068.501), and
incorporation of the federal definition
for ‘‘Date of Manufacture’’
(§ 1068.801).74
The 2011 Tier 4 amendments also
included a new section that establishes
an anti-stockpiling provision that is
consistent with recently added federal
provisions in 40 CFR 1068.103 and
1068.105 which address intentional
over-production of engines prior to a
year in which a change in the emissions
standards occur.75 The new section
makes clear that manufacturers cannot
deviate from normal production and
inventory practices to circumvent the
regulations.76
3. Amendments That Maintain Needed
Differences Between California and EPA
Nonroad CI Programs
The 2011 Tier 4 amendments also
maintain differences from the federal
provisions that are needed to support
California’s unique air quality programs.
These differences primarily consist of
documentation requirements. CARB
states that none of the differences
present any technical obstacles for offroad engine manufacturers.77 The
differences include: enhanced emissions
control labeling beyond that required on
federal labels to include information
such as the certification power category
or an explicit designation of the
emissions tier to which the engine
conforms; removing the prior assurance
to manufacturers that preliminary
approvals of certification will not
usually be reversed absent the discovery
of new information contrary to the
findings that resulted in the preliminary
approval; not exempting a small number
of replacement engines from engine
labeling requirements; and not
incorporating EPA’s amended
definitions of ‘‘engine,’’ which define an
engine to be an engine block with an
installed crankshaft and ‘‘partially
complete engine’’ as defined in 40 CFR
1068.30 and 1068.240.78
C. California’s 2011 Certification Test
Fuel Amendments
The 2011 Certification Test Fuel
amendments modify the certification
test fuel requirements for off-road SI,
gasoline-fueled engines to allow the use
of 10-percent ethanol-blend of gasoline
(E10) as a certification fuel.79 The use of
the E10 certification test fuel is allowed
as an option for certification exhaust
emission testing of new gasoline-fueled
LSI, SORE, OHRV, and Recreational
Marine off-road categories from the 2013
through the 2019 model years, and is
mandatory for certification exhaust
emission testing of these categories
beginning with the 2020 model year.80
The 2011 Certification Test Fuel
amendments also provide
manufacturers the option of using other
renewable fuel blends that have been
certified by CARB as yielding test
75 Id.
76 Id.
67 Id.
71 Id.
68 Id.
72 Id.
69 Id.
at 14.
77 Id.
at 17.
at 17, 18.
79 Id. at 18.
80 Id.
78 Id.
73 Id.
70 Id.
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74 Id.
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results equivalent to, or more stringent
than those resulting from E10, and
which are appropriate for the
certification of small off-road engines
beginning with the 2013 model year.81
The amendments maintain test fuel
consistency between on-road motor
vehicles and most of the off-road
categories and establish complete
consistency between the off-road
categories’ certification test fuels and
commercially available fuels.82
D. Within-the-Scope Analysis
California requested that the
Administrator confirm that the 2011
Amendments detailed above are within
the scope of previously granted
authorizations.83 California asserted that
all three sets of 2011 amendments met
all three within-the-scope criteria, i.e.
that the amendments: (1) Do not
undermine the original protectiveness
determination underlying California’s
regulations; (2) do not affect the
consistency of the regulations with
section 202(a); and (3) do not raise any
new issues affecting the prior
authorizations.84 We received no
adverse comments or evidence
suggesting a within-the-scope analysis is
inappropriate, or that any of the three
sets of 2011 amendments fail to meet
any of the three criteria for within-thescope confirmation.
In regard to the first within-the-scope
criterion, CARB found that the 2011
Amendments did not cause the
California emissions standards, in the
aggregate, to be less protective of public
health and welfare than applicable
federal standards. California asserts
their protectiveness determination is not
arbitrary or capricious, and that the
elements of the 2011 Amendments do
not affect the stringency of the
previously authorized SORE or Tier 4
Off-Road CI emission standards and
associated test procedures, or the other
regulations and test procedures affected
by these amendments (LSI, Recreational
Marine, and OHRV).85 CARB asserts
81 Id.
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82 Id.
83 This request excluded the amendment that
establishes the Tier 4 alternative NOx + NMHC
standards for off-road CI engines because this
amendment will only be utilized by manufacturers
that have accumulated emission credits. Such
standards do not constitute mandatory compliance
requirements, but instead provide a compliance
alternative and do not require authorization. See
Motor and Equipment Mfrs. Ass’n, Inc. v.
Environmental Protection Agency (MEMA II), 627
F.2d 1128, 1132 (D.C. Cir. 1979)(a regulatory
compliance option is only a mandate that can result
in a denial of a waiver if the regulation does not
specify another technically feasible compliance
option.)
84 Id. at 21.
85 Id.
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that, therefore, the subject regulations
and test procedures continue to be at
least as protective of public health and
welfare as the federal nonroad
emissions standards and test
procedures.
Based on the record before us and in
the absence of any evidence to the
contrary, we cannot find that
California’s protectiveness
determination regarding the
implementation of 2011 Amendments is
arbitrary or capricious.
In regard to the second within-thescope criterion, the 2011 Amendments
do not attempt to regulate new motor
vehicles or motor vehicles engines and
so are consistent with section 209(a).
They likewise did not attempt to
regulate any of the permanently
preempted engines or vehicles, and so
are consistent with section 209(e)(1).
Finally, they did not cause any
technological feasibility issues for
manufacturers or cause inconsistency
between state and federal test
procedures, per section 209(b)(1)(C). No
manufacturer raised technical feasibility
or lead time concerns regarding the
2011 Amendments.86 Additionally, the
2011 Amendments are later than EPA’s
corresponding amendments to the
federal nonroad regulations and
associated test procedures. Given these
facts, EPA cannot find that the 2011
Amendments are not technically
feasible or do not provide sufficient lead
time.87 CARB enacted the 2011
Amendments at the behest of
manufacturers who had already
implemented modifications to their
emissions facilities that are required by
EPA’s corresponding amendments to the
federal nonroad regulations. No
technical feasibility or lead time
concerns were raised regarding the
elements of the 2011 Certification Test
Fuel amendments either.88 These
amendments establish complete
consistency between the certification
and the commercially available fuels for
off-road engines subject to California’s
SORE, LSI, Recreational Marine, and
OHRV regulations.89 Manufacturers of
off-road spark-ignition, gasoline-fueled
engines have needed to account for the
usage of E10 in their engines since
December 31, 2009, and those engines
have been capable of being emissions
tested using E10 by that date, which
precedes the 2020 model-year
requirement to use E10 by ten years.90
86 Id.
at 22.
87 Id.
The 2011 Amendments present no
issue of incompatibility between
California and federal test procedures,
as they essentially harmonize
California’s test procedures associated
with the SORE, Off-Road CI Engine, LSI,
Recreational Marine, and OHRV
regulations with the corresponding
federal test procedures. The
corresponding federal regulations for
such engines have already designated
E10 as a test fuel for exhaust emissions
testing, so the amendments do not
impose inconsistent certification
requirements so as to make
manufacturers unable to meet both
California and federal requirements
with one test vehicle or engine.91
In regard to the third within-the-scope
criterion, California stated that it is not
aware of any new issues presented by
the 2011 Amendments that affect the
previously granted authorizations for
the SORE, Off-Road CI Engine, LSI,
Recreational Marine, or OHRV
regulations, and EPA has received no
evidence to the contrary.92 We therefore
do not find any new issues raised by the
amendments.
Having received no contrary evidence
regarding these amendments, we find
that California has met the three criteria
for a within-the-scope authorization
approval, and the 2011 Amendments are
confirmed as within the scope of
previous EPA authorizations of
California’s SORE, Off-Road CI Engine,
LSI, Recreational Marine, or OHRV
regulations.
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 the 2011 amendments
to CARB’s SORE regulations, Tier 4 OffRoad CI regulations, and Exhaust
Emission Certification Test Fuel for OffRoad Spark-Ignition Engines,
Equipment, and Vehicles regulations
described above and CARB’s
submissions for EPA review, EPA is
taking the following actions.
First, EPA confirms that California’s
2011 amendments modifying its SORE
regulations is within the scope of prior
authorizations. Second, EPA confirms
that California’s amendment modifying
its Tier 4 Off-Road CI regulations is
within the scope of prior authorizations.
Third, EPA confirms that California’s
amendment modifying its Exhaust
Emission Certification Test Fuel for OffRoad Spark-Ignition Engines,
88 Id.
89 Id.
at 23.
91 Id.
90 Id.
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Federal Register / Vol. 80, No. 238 / Friday, December 11, 2015 / Notices
Equipment, and Vehicles regulations is
within the scope of prior authorizations.
This decision will affect persons in
California and those 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 February 9, 2016.
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: December 1, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air
and Radiation.
jstallworth on DSK7TPTVN1PROD with NOTICES
[FR Doc. 2015–31189 Filed 12–10–15; 8:45 am]
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Jkt 238001
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9939–86–OARM]
Request for Nominations to the
National Advisory Council for
Environmental Policy and Technology
(NACEPT)
Environmental Protection
Agency (EPA).
ACTION: Notice; request for nominations.
AGENCY:
The Environmental Protection
Agency (EPA) invites nominations to fill
vacancies on its National Advisory
Council for Environmental Policy and
Technology (NACEPT). The Agency
seeks nominees from a diverse range of
qualified candidates representing the
following sectors: Academia; state,
local, and tribal governments; business
and industry; and, non-governmental
organizations. Potential vacancies are
anticipated to be filled in April, 2016.
Sources in addition to this Federal
Register notice may be utilized in the
solicitation of nominees.
DATES: Nomination packages must be
emailed or postmarked no later than
January 15, 2016.
ADDRESSES: Nomination packages may
be mailed to: Eugene Green, Designated
Federal Officer, Office of Diversity,
Advisory Committee Management, and
Outreach, U.S. Environmental
Protection Agency (1601M), 1200
Pennsylvania Avenue NW., Washington,
DC 20460.
FOR FURTHER INFORMATION CONTACT:
Eugene Green, Designated Federal
Officer, U.S. EPA; telephone (202) 564–
2432; fax (202) 564–8129; email
green.eugene@epa.gov.
SUPPLEMENTARY INFORMATION:
Background: The National Advisory
Council for Environmental Policy and
Technology (NACEPT) is a federal
advisory committee chartered under the
Federal Advisory Committee Act
(FACA), Public Law 92–463. EPA
established NACEPT in 1988 to provide
advice to the EPA Administrator on a
broad range of environmental policy,
management and technology issues.
Members serve as representatives from
academia, industry, non-governmental
organizations, and state, local, and tribal
governments. Members are appointed by
the EPA Administrator for two year
terms. The Council usually meets 2–3
times annually face-to-face or via video/
teleconference and the average
workload for the members is
approximately 10 to 15 hours per
month. Members serve on the Council
in a voluntary capacity. However, EPA
provides reimbursement for travel and
SUMMARY:
PO 00000
Frm 00054
Fmt 4703
Sfmt 4703
76979
incidental expenses associated with
official government business. EPA is
seeking nominations from candidates
representing all sectors noted above.
Within these sectors, EPA is seeking
nominees with a strong background in
citizen science, crowd source
monitoring and technologies,
community sustainability,
environmental justice and economic
initiatives, ecology and biodiversity,
public health, social science, and
environmental policy and management.
Nominees will be considered
according to the mandates of the Federal
Advisory Committee Act (FACA), which
requires committees to maintain
diversity across a broad range of
constituencies, sectors, groups, and
geographical locations. EPA values and
welcomes diversity. In an effort to
obtain nominations of diverse
candidates, EPA encourages
nominations from women and men of
all racial and ethnic groups, as well as
persons with disabilities. Please note
that interested candidates may selfnominate.
The following criteria will be used to
evaluate nominees:
—Professional knowledge of
environmental policy, management,
and technology issues, particularly
issues dealing with all facets of
citizen science.
—Demonstrated ability to assess and
analyze environmental challenges
with objectivity and integrity.
—Middle/Senior-level leadership
experience that fills a current need on
the Council.
—Excellent interpersonal, oral and
written communication skills, and
consensus-building skills.
—Ability to volunteer approximately 10
to 15 hours per month to the
Council’s activities, including
participation in face-to-face meetings,
video/teleconference meetings and
preparation of documents for the
Council’s reports and advice letters.
EPA’s policy is that, unless otherwise
prescribed by statute, members
generally are appointed to two year
terms.
Prospective candidates interested in
being considered for an appointment to
serve on the Council, should submit the
following items to process your
nomination package: Nomination
packages must include a brief statement
of interest, resume, or curriculum vitae,
and a short biography (no more than
two paragraphs) describing your
professional and educational
qualifications, including a list of
relevant activities and any current or
previous service on advisory
E:\FR\FM\11DEN1.SGM
11DEN1
]]>Agencies
[Federal Register Volume 80, Number 238 (Friday, December 11, 2015)]
[Notices]
[Pages 76971-76979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31189]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2014-0535; FRL 9939-94-OAR]
California State Nonroad Engine Pollution Control Standards;
Small Off-Road Engines Regulations; Tier 4 Off-Road Compression-
Ignition Regulations; Exhaust Emission Certification Test Fuel for Off-
Road Spark-Ignition Engines, Equipment, and Vehicles Regulations;
Notice of Decision
AGENCY: Environmental Protection Agency.
ACTION: Notice of Decision.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is confirming that
the California Air Resources Board's (CARB's) 2011 amendments to its
Small Off-Road Engines (SORE) regulations (2011 SORE amendments), Tier
4 Off-Road Compression-Ignition (CI) regulations (2011 Tier 4
amendments), and Exhaust Emission Certification Test Fuel for Off-Road
Spark-Ignition (SI) Engines, Equipment, and Vehicles regulations (2011
Certification Test Fuel amendments) are within the scope of previous
EPA authorizations. The 2011 SORE amendments modify California's
existing SORE test procedures by aligning California procedures to be
consistent with recent amendments by EPA to the federal certification
and exhaust emission testing requirements.
[[Page 76972]]
The 2011 Tier 4 amendments enhance the harmonization of CARB's exhaust
emission requirements for new off-road CI engines with the
corresponding federal emissions requirements for nonroad CI engines.
The 2011 Certification Test Fuel amendments modify the certification
test fuel requirements for off-road spark ignition, gasoline-fueled
engines to allow the use of 10-percent ethanol-blend gasoline (E10) as
a certification fuel. This decision is issued under the authority of
the Clean Air Act (``CAA'' or ``Act'').
DATES: Petitions for review must be filed by February 9, 2016.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2014-0535. 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 https://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and
Radiation Docket is: a-and-r-Docket@epa.gov, the telephone number is
(202) 566-1742, and the fax number is (202) 566-9744. An electronic
version of the public docket is available through the federal
government's electronic public docket and comment system. You may
access EPA dockets at https://www.regulations.gov. After opening the
www.regulations.gov Web site, enter EPA-HQ-OAR-2014-0535 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 and authorization 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 https://www.epa.gov/otaq/cafr.htm.
FOR FURTHER INFORMATION CONTACT: Brenton Williams, Attorney-Advisor,
Compliance Division, Office of Transportation and Air Quality, U.S.
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105. Telephone: (734) 214-4341. Fax: (734) 214-4053. Email:
williams.brent@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. 2011 SORE Amendments
CARB includes within its SORE regulations small off-road engines
and equipment \1\ rated at or below 19 kilowatts (kW) (25 horsepower
(hp)). The vast majority of engines covered by the SORE regulations are
SI engines that are used to power a broad range of equipment, including
lawn mowers, leaf blowers, generators, and small industrial equipment.
Exhaust and evaporative emissions from these engines are a significant
source of hydrocarbons and oxides of nitrogen, pollutants that
contribute to smog problems in California.
---------------------------------------------------------------------------
\1\ The federal term ``nonroad'' and the California term ``off-
road'' are used interchangeably.
---------------------------------------------------------------------------
CARB first adopted standards and test procedures applicable to SORE
in 1992. In 1993, CARB amended these regulations to delay their
implementation until 1995. EPA authorized these initial SORE
regulations in 1995.\2\ California subsequently amended its regulations
in 1994, 1995, and 1996 to clarify certification and implementation
procedures, exempt military tactical equipment, and relax emissions
standards for certain engines. EPA confirmed these three amendment
packages as within the scope of previous authorizations in 2000.\3\
---------------------------------------------------------------------------
\2\ 60 FR 37440 (July 20, 1995).
\3\ 65 FR 69763 (November 20, 2000).
---------------------------------------------------------------------------
In 1998, CARB amended the SORE regulation to apply to all engines
rated less than 19 kW used in off-road applications. The 1998
amendments also revised the regulations to be based on engine
displacement instead of whether the engine is used in a handheld or
non-handheld application, delayed implementation of certain portions of
the standards, and adopted new emission standards for new engines under
19 kW. EPA confirmed these amendments to be within the scope of
previous authorizations in 2000.\4\
---------------------------------------------------------------------------
\4\ Id. at 69767.
---------------------------------------------------------------------------
In 2004, CARB amended its off-road CI regulations to match federal
standards and exhaust emissions standards, and adopted evaporative
emissions standards for small off-road SI engines rated at or below 19
kW. EPA granted a full authorization for these amendments in 2006.\5\
CARB adopted additional SORE amendments in 2008 which modified the
emission credits program to provide manufacturers with additional
flexibility and permitted the use of certification fuels with up to ten
volume percent ethanol content, provided that the same fuel is used for
certification with the EPA. EPA found these amendments to be within the
scope of previous authorizations in 2015.\6\
---------------------------------------------------------------------------
\5\ 71 FR 75536 (December 15, 2006).
\6\ 80 FR 26041 (May 6, 2015).
---------------------------------------------------------------------------
B. 2011 Tier 4 Amendments
The second element of CARB's request is amendments to its nonroad
regulations that include CI engines used in tractors, excavators,
dozers, scrapers, portable generators, transport refrigeration units,
irrigation pumps, welders, compressors, scrubbers, and sweepers.\7\ In
1992, CARB approved a regulation to control exhaust emissions from
heavy-duty off-road CI engines 175 hp and above.\8\ EPA granted
authorization in 1995.\9\ In 2000 CARB harmonized California's emission
standards and test procedures to federal standards that EPA promulgated
in 1998 for the same nonroad CI engine categories (Tier 1 through Tier
3).\10\ In 2004-2005 CARB generally harmonized California's Tier 4
standards to the federal Tier 4 standards for these same off-road CI
engines that EPA adopted in 2004.\11\ EPA confirmed that the 2000
amendments to the smallest category of engines (less than 19 kW) were
within the scope of previous authorizations.\12\ EPA granted full
authorizations for the 2004-2005 amendments as they affected new off-
road CI engines less than 19 kW, and for the 2000 and 2004-2005
amendments as they affected new off-road CI engines for the other two
power categories (19 kW-130 kW and greater than 130 kW).\13\
---------------------------------------------------------------------------
\7\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 4.
\8\ Id.
\9\ 60 FR 37440 (July 5, 1995).
\10\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 5.
\11\ Id.
\12\ 75 FR 8056 (February 23, 2010).
\13\ Id.
---------------------------------------------------------------------------
C. 2011 Certification Test Fuel Amendments
The third element of CARB's request is amendments to its Exhaust
Emission Certification Test Fuel for Off-Road SI
[[Page 76973]]
Engines, Equipment, and Vehicles regulations. Prior to these
amendments, California's SORE and Large Spark Ignition (LSI) test
procedures allowed gasoline-fueled, SI engines to be tested for
compliance with certification exhaust standards using either Indolene
or Phase 2 California Reformulated Gasoline (CaRFG2) \14\ as an option
to federally specified test fuels. Recreational Marine engines were
permitted to use CaRFG2, federal Indolene, or the fuel specified in
Table 3 of Appendix A to 40 CFR part 91, subpart D. Off Highway
Recreational Vehicles (OHRV) that were categorized as off-road
motorcycles were required to certify using Indolene. OHRVs that were
categorized as go-karts and specialty vehicles were allowed to certify
using either Indolene or CaRFG2, and OHRVs that were categorized as
all-terrain vehicles (ATVs) were primarily required to use Indolene,
but under certain circumstances were allowed to certify using
CaRFG2.\15\
---------------------------------------------------------------------------
\14\ Phase 1 CaRFG, which was implemented in 1992, eliminated
lead from gasoline and set regulations for deposit control additives
and reid vapor pressure (RVP). Phase 2 CaRFG (CaRFG2), which was
implemented in 1996, set specifications for sulfur, aromatics,
oxygen, benzene, T50, T90, Olefins, and RVP and established a
Predictive Model. Phase 3 CaRFG (CaRFG3), which was implemented in
1999, eliminated methyl-tertiary-butyl-ether from California
gasoline.
\15\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 9.
---------------------------------------------------------------------------
The initial SORE regulation and the 1993 amendments to the SORE
regulation allowed manufacturers to utilize either Indolene or
California Phase 1 fuel as test fuel for certification.\16\ EPA granted
California a full authorization for the initial SORE regulation and the
1993 amendments.\17\ In 1994 CARB amended the SORE regulation to
provide manufacturers the option to certify SORE engines using CaRFG2
that was consistent with the certification test fuel specified for on-
road motor vehicles. EPA confirmed that the 1994 amendment was within
the scope of the previous authorizations.\18\ In 2008, EPA confirmed
that allowing the use of 10-percent ethanol-blend of gasoline (E10) as
a certification fuel for SORE was within the scope of previous
authorizations.\19\
---------------------------------------------------------------------------
\16\ Id. at 8.
\17\ 60 FR 37440 (July 20, 1995).
\18\ 65 FR 69763 (November 20, 2000).
\19\ 80 FR 26041 (May 6, 2015).
---------------------------------------------------------------------------
The initial LSI regulation specified that the certified gasoline
test fuels for LSI engines were either Indolene or CaRFG2. EPA granted
California a new authorization for the initial LSI regulation on May
15, 2006.\20\
---------------------------------------------------------------------------
\20\ 71 FR 29623 (May 23, 2006).
---------------------------------------------------------------------------
The initial CARB Marine SI Engine regulation applicable to 2001 and
later model year outboard SI marine engines and personal watercraft
engines established test procedures that were virtually identical to
those in the federal SI Marine Engine regulations. In 2002 CARB adopted
regulations establishing exhaust emission standards and related
certification and test procedures for 2003 and later model year SI
inboard and sterndrive marine engines that specified the same
certification test fuels as those applicable to outboard engines and
personal water craft.\21\ EPA granted California an authorization for
these regulations in 2007.\22\
---------------------------------------------------------------------------
\21\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 9.
\22\ 72 FR 14546 (March 28, 2007).
---------------------------------------------------------------------------
EPA granted California a new authorization for the initial OHRV
regulation, which included initial test fuel certification
requirements, in 1996,\23\ and confirmed that 1996 amendments to the
OHRV regulation were within the scope of the initial authorization in
2000.\24\
---------------------------------------------------------------------------
\23\ 61 FR 69093 (December 31, 1996).
\24\ 65 FR 69763 (November 20, 2000).
---------------------------------------------------------------------------
D. California's Authorization Request
By letter dated June 13, 2014, CARB submitted a request to EPA
pursuant to section 209(e) of the Act for authorization of its 2011
SORE amendments, 2011 Tier 4 amendments, and 2011 Certification Test
Fuel amendments (with all three sets of amendments collectively known
as the ``2011 Amendments''). CARB sought EPA's confirmation that the
2011 Amendments fell within the scope of EPA's previous authorizations,
or, in the alternate, a full authorization for those amendments.
1. 2011 SORE Amendments
CARB approved the 2011 SORE amendments at issue on December 16,
2011, and adopted them on October 25, 2012.\25\ The 2011 SORE
amendments became operative on January 10, 2013.\26\ The 2011 SORE
amendments modify California's existing SORE test procedures by
aligning California procedures to be consistent with recent amendments
by EPA to the federal certification and exhaust emission testing
requirements at 40 CFR parts 1054 and 1065.\27\ Part 1054 contains
certification protocols, production-line testing requirements, credit-
generation allowances, and other related provisions applicable to
federally certified engines. Since CARB had previously promulgated
California-specific versions of these provisions for SORE engines, the
2011 SORE amendments adopted the language of CFR part 1054, but with
modifications that substitute California's specific emission standards,
production-line testing requirements and credit-allowances for the
corresponding federal provisions.\28\ Part 1065 specifies the ``state-
of-the-art'' testing equipment, systems, and processes that must be
utilized in conducting emissions testing of applicable engines. The
2011 SORE amendments align California test procedures for 2013 and
later model year engines with the requirements specified in Part
1065.\29\
---------------------------------------------------------------------------
\25\ See EPA-HQ-OAR-2014-0535-0008, ``Enclosure 5 CARB
Resolution 11-41'', and EPA-HQ-OAR-2014-0535-0009, ``Enclosure 6
Executive Order R-12-005''.
\26\ Id.
\27\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011''.
\28\ Id.at 11.
\29\ Id.at 11.
---------------------------------------------------------------------------
2. 2011 Tier 4 Amendments
CARB approved the Tier 4 amendments at issue on December 16, 2011,
and adopted them on October 25, 2012.\30\ The 2011 Tier 4 amendments
became operative on January 10, 2013.\31\ The 2011 Tier 4 amendments
enhance the harmonization of CARB's exhaust emission requirements for
new off-road CI engines with the corresponding federal emissions
requirements for nonroad CI engines set forth in CFR parts 1039, 1065,
and 1068.\32\ EPA most recently amended these Parts in 2011.\33\ The
2011 Tier 4 amendments correct clerical errors, standardize measurement
specifications, calibrations, and instrumentation, remove unnecessarily
burdensome reporting requirements, and provide additional compliance
flexibility options.\34\ The 2011 Tier 4 amendments also incorporate
EPA's anti-stockpiling provisions, which help ensure the realization of
projected emission benefits, and also establish a new interim Tier 4
combined hydrocarbon plus oxides of nitrogen emission standard that has
the potential
[[Page 76974]]
to provide additional emission benefits.\35\
---------------------------------------------------------------------------
\30\ See EPA-HQ-OAR-2014-0535-0008, ``Enclosure 5 CARB
Resolution 11-41'', and EPA-HQ-OAR-2014-0535-0009, ``Enclosure 6
Executive Order R-12-005''.
\31\ Id.
\32\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 12.
\33\ 76 FR 37977 (June 28, 2011).
\34\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 13-18.
\35\ Id. at 2.
---------------------------------------------------------------------------
3. 2011 Certification Test Fuel Amendments
The 2011 Certification Test Fuel amendments modify the
certification test fuel requirements for off-road spark ignition,
gasoline-fueled engines to allow the use of 10-percent ethanol-blend of
gasoline (E10) as a certification fuel. The use of the E10
certification fuel is allowed as an option for certification exhaust
emission testing of new gasoline-fueled SORE, LSI, Recreational Marine,
and OHRV off-road categories from the 2013 through 2019 model years,
and is mandatory for certification exhaust emission testing of these
categories beginning with the 2020 model year.\36\
---------------------------------------------------------------------------
\36\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 18.
---------------------------------------------------------------------------
E. 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.\37\ For all other nonroad
engines (including ``non-new'' engines), states generally are preempted
from adopting and enforcing standards and other requirements relating
to the control of emissions, except that section 209(e)(2)(A) 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 enumerated findings. Specifically, EPA must deny
authorization if the Administrator finds that (1) California's
protectiveness determination (i.e., that California 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 standards to meet compelling and
extraordinary conditions, or (3) the California standards and
accompanying enforcement procedures are not consistent with section 209
of the Act.
---------------------------------------------------------------------------
\37\ 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.
---------------------------------------------------------------------------
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.\38\ EPA revised these regulations in
1997.\39\ 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.\40\
---------------------------------------------------------------------------
\38\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
\39\ 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.
\40\ See supra note 12. EPA has interpreted 209(b)(1)(C) in the
context of section 209(b) motor vehicle waivers.
---------------------------------------------------------------------------
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, or (2) the federal and state testing
procedures impose inconsistent certification requirements.
In light of the similar language of 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).\41\ 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),\42\ 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:
---------------------------------------------------------------------------
\41\ 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.''
\42\ See supra note 12, at 36983.
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.\43\
---------------------------------------------------------------------------
\43\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (August 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.\44\ 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).
---------------------------------------------------------------------------
\44\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
---------------------------------------------------------------------------
F. 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
[[Page 76975]]
amendments is permissible without a full authorization review 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.\45\
---------------------------------------------------------------------------
\45\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
---------------------------------------------------------------------------
G. Deference to California
In previous waiver 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. This has led EPA to state:
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.\46\
---------------------------------------------------------------------------
\46\ 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision
Document at 64 (58 FR 4166 (January 13, 1993)).
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.\47\
---------------------------------------------------------------------------
\47\ 40 FR 23104; 58 FR 4166.
---------------------------------------------------------------------------
The House Committee Report explained as part of the 1977 amendments
to the Clean Air Act, where Congress had the opportunity to restrict
the waiver provision, it elected instead to explain California's
flexibility to adopt a complete program of motor vehicle emission
controls. The amendment is intended to ratify and strengthen the
California waiver provision and to affirm the underlying intent of that
provision, i.e., to afford California the broadest possible discretion
in selecting the best means to protect the health of its citizens and
the public welfare.\48\
---------------------------------------------------------------------------
\48\ MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 294, 95
Cong., 1st Sess. 301-02 (1977).
---------------------------------------------------------------------------
H. Burden and Standard of Proof
As the U.S. Court of Appeals for the DC 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.\49\
\49\ MEMA I, supra note 19, 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.' '' \50\ Therefore, the
Administrator's burden is to act ``reasonably.'' \51\
---------------------------------------------------------------------------
\50\ Id. at 1126.
\51\ Id. at 1126.
---------------------------------------------------------------------------
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.\52\
---------------------------------------------------------------------------
\52\ Id. at 1122.
In that decision, the court considered the standards of proof under
section 209 for the two findings related to granting a waiver for an
``accompanying enforcement procedure.'' Those findings involve: (1)
Whether the enforcement procedures impact California's prior
protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with section 202(a). The
principles set forth by the court, however, are similarly applicable to
an EPA review of a request for a waiver of preemption for a standard.
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.'' \53\
---------------------------------------------------------------------------
\53\ Id.
---------------------------------------------------------------------------
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.\54\ 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.\55\
---------------------------------------------------------------------------
\54\ Id.
\55\ Id.
---------------------------------------------------------------------------
With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all proceedings, but found
that the opponents of the waiver were unable to meet their burden of
proof even if the standard were a mere preponderance of the evidence.
Although MEMA I did not explicitly consider the standards of proof
under section 209 concerning a waiver request for ``standards,'' as
compared to a waiver request for 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.''
\56\
---------------------------------------------------------------------------
\56\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
---------------------------------------------------------------------------
I. EPA's Administrative Process in Consideration of California's
Amendment Requests for Authorization
On November 21, 2014, EPA published a Federal Register notice
announcing its receipt of California's
[[Page 76976]]
authorization request. In that notice, EPA invited public comment on
the 2011 SORE amendments, the 2011 Tier 4 amendments, and 2011
Certification Test Fuel amendments (collectively known as the 2011
Amendments) and an opportunity to request a public hearing.\57\
---------------------------------------------------------------------------
\57\ See ``California State Nonroad Engine Pollution Control
Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road
Compression-Ignition Regulations; Exhaust Emission Certification
Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and
Vehicles Regulations; Request for Within-the-Scope and Full
Authorization; Opportunity for Public Hearing and Comment,'' 79 FR
69465 (November 21, 2014).
---------------------------------------------------------------------------
EPA requested comment on the 2011 Amendments, as follows: (1)
Should California's amendments be considered under the within-the-scope
analysis, or should they be considered under the full authorization
criteria?; (2) If those amendments should be considered as a within-
the-scope request, do they meet the criteria for EPA to grant a within-
the-scope confirmation?; and (3) If the amendments should not be
considered under the within-the-scope analysis, or in the event that
EPA determines they are not within the scope of the previous
authorization, do they meet the criteria for making a full
authorization determination?
EPA received no written comments. Additionally, EPA received no
requests for a public hearing. Consequently, EPA did not hold a public
hearing.
II. Discussion
A. California's 2011 SORE Amendments
The 2011 SORE amendments incorporate provisions of 40 Code of
Federal Regulations (CFR) Parts 1054 and 1065 into the test procedures
applicable to 2013 and later model year engines, and incorporate
citations to the newly modified test procedures. The 2011 SORE
amendments dealt with three specific topics: (1) Improved alignment
with 40 CFR part 1054; (2) improved alignment with 40 CFR part 1065;
and (3) amendments to CA-Part 1065 that maintain differences between
California and EPA test procedures. CARB asserts that the 2011 SORE
amendments do not affect the stringency of the exhaust emission
standards and associated test procedures for SORE engines.
1. Improved Alignment With Part 1054
Part 1054 contains certification protocols, production-line testing
requirements, credit-generation allowances, and other related
provisions applicable to federally certified engines. Since CARB had
already promulgated California-specific versions of these provisions
for SORE engines, the 2011 SORE amendments adopted language similar to
Part 1054, but with modifications that substitute California's specific
emission standards, production-line testing requirements and credit-
generations allowances for the corresponding federal provisions.\58\
---------------------------------------------------------------------------
\58\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support
Document SORE 2011'' at 11.
---------------------------------------------------------------------------
2. Improved Alignment With Part 1065
Part 1065 specifies the ``state-of-the-art'' testing equipment,
systems, and processes that must be utilized in conducting emissions
testing of applicable engines. The 2011 SORE amendments largely align
the test procedures applicable to 2013 and later model year engines
with the requirements specified in Part 1065, and will therefore
prevent the need for manufacturers to conduct separate emissions tests
for certifying engines with EPA and CARB.\59\ Additionally, CARB states
that a majority of engine manufacturers had already upgraded their test
equipment in order to be compliant with Part 1065, and not aligning
California and federal test procedures would mean that the use of the
existing California test procedures would become increasingly
impractical for manufacturers, independent testing facilities, and
CARB.\60\ CARB adopted Part 1065 into the SORE test procedures except
for the modifications discussed below.
---------------------------------------------------------------------------
\59\ Id. at 11.
\60\ Id.
---------------------------------------------------------------------------
3. Amendments to CA-Part 1065 that Maintain Differences between
California and EPA Test Procedures
The 2011 SORE amendments maintain California-specific requirements
applicable to new 2013 and later model year SORE engines in the
following areas: Allowance for supplemental engine cooling, measurement
of particulate matter (PM) emissions from two-stroke engines, and
exhaust emission certification test fuel requirements (discussed later
in the decision).\61\ CARB believes that the existing California
provisions in the SORE test procedures regarding supplemental cooling
are more representative of in-use conditions than the corresponding
federal provision, and are needed to maintain the stringency of
California's existing test procedures. The California provisions
require that manufacturers justify the need for and the use of any
auxiliary fans used to provide supplemental cooling, and further
require that manufacturers demonstrate that the supplemental cooling is
representative of in-use engine operation. CARB's SORE emission
standards include a PM emissions standard for two-stroke engines while
EPA's small nonroad engine standards do not.\62\ California's existing
regulations provide manufacturers the option of demonstrating
compliance with the PM standard for two-stroke engines by using
measured hydrocarbon emissions as a surrogate in lieu of determining
actual PM emission levels.\63\ CARB determined that extending this
option was warranted as it provides manufacturers flexibility in
conducting the testing required for demonstrating emissions compliance,
without affecting the stringency of the current PM emission standards.
---------------------------------------------------------------------------
\61\ Id. at 12.
\62\ Id.
\63\ Id.
---------------------------------------------------------------------------
B. California's 2011 Tier 4 Amendments
The 2011 Tier 4 amendments enhance the harmonization of CARB's
exhaust emission requirements for new off-road CI engines with the
corresponding federal emissions requirements for nonroad CI engines in
40 CFR parts 1039, 1065, and 1068, as most recently amended by EPA in
2011.\64\ CARB states that the amendments correct clerical errors,
standardize measurement specifications, calibrations, and
instrumentation, remove unnecessarily burdensome reporting
requirements, and provide additional compliance flexibility options
without sacrificing air quality benefits.\65\ The 2011 Tier 4
amendments dealt with three specific areas: (1) Modifications to Tier 4
off-road CI exhaust emission standards; (2) updated test procedures;
and (3) amendments that maintain needed differences between California
and EPA Nonroad CI programs.
---------------------------------------------------------------------------
\64\ Id. at 13.
\65\ Id.
---------------------------------------------------------------------------
1. Modifications to Tier 4 Off-Road CI Exhaust Emission Standards
The 2011 Tier 4 amendments aligned with the federal alternate
combined oxides of nitrogen and non-methane hydrocarbons (ALT
NOX + NMHC) standards and the corresponding family emission
limit (FEL) caps for Tier 4 engines ranging from 56 kW through 560
kW.\66\ The amendments corrected clerical errors that unintentionally
limited the years of applicability for several alternative FEL caps
erroneously identified in the regulations and test procedures. The
California Tier 4 Off-Road CI regulation and the federal Tier
[[Page 76977]]
4 nonroad CI regulation allowed engine manufacturers to continue
producing a small number of Tier 3 off-road CI engines using emission
credits after the Tier 4 standards began.\67\ However, both the
original EPA and California regulations inadvertently hindered
manufacturers from using these certification allowances because the
Tier 4 averaging programs did not allow manufacturers to show
compliance with the existing 0.19 g/kW-hr NMHC standard using credits.
To correct this, the 2011 Tier 4 amendments establish new Tier 4
alternative combined NOX + NMHC standards for off-road CI
engines that align with the amendments to EPA's nonroad CI regulation
in 2007, which similarly provides manufacturers the option to use
credits to show compliance with the new alternative NOX +
NMHC standards for engines ranging from 56 kW through 560 kW.\68\ The
2011 Tier 4 amendments also revise the start dates for the ALT 20%
NOX FEL caps to correct an inconsistency in a regulatory
table regarding the period of applicability for certifying engines to
the ALT 20% NOX FEL caps that stated the period was only one
or two years to the correct four-year period.\69\
---------------------------------------------------------------------------
\66\ Id.
\67\ Id.
\68\ Id.
\69\ Id. at 14.
---------------------------------------------------------------------------
2. Updated Test Procedures
The 2011 Tier 4 amendments primarily revise California's Tier 4
off-road CI engine test procedures to align them with the modifications
to the corresponding federal nonroad CI engine test procedures that
have been enacted by EPA since 2005 to improve the accuracy and
precision of the measurement and reporting of emissions data. The new
California off-road CI engine test procedures are comprised of three
separate documents that largely incorporate provisions of the federal
test procedures contained in 40 CFR parts 1039, 1065, and 1068, but
that also incorporate several California-specific modifications.\70\
---------------------------------------------------------------------------
\70\ Id.
---------------------------------------------------------------------------
The 2011 Tier 4 amendments incorporate EPA's June 28, 2011
modifications to Part 1039 into the new test procedure entitled
``California Exhaust Emission Standards and Test Procedures for New
2011 and Later Tier 4 Off-Road Compression Ignition Engines, Part I-
D''. Included among the alignments are modification of the criterion
for selecting engine families regarding engine cylinder arrangement
(Sec. 1039.230(b)(7)), removal of unnecessary and/or redundant
labeling and notification instructions regarding the equipment
manufacturer flexibility program (Sec. 1039.625), correction of
clerical errors that inadvertently elevated the minimum standard for
equipment flexibility engines beyond that originally intended (Sec.
1039.625(e)(3)), and clarification regarding the rounding of Averaging,
Banking, and Trading credits (Sec. 1039.705(b)).\71\
---------------------------------------------------------------------------
\71\ Id. at 15.
---------------------------------------------------------------------------
The 2011 Tier 4 amendments deleted CARB's existing CA-Part 1065-
based test procedures and created a brand-new version in Part I-E based
solely on CARB's modifications to EPA's 40 CFR 1065 as it existed on
June 28, 2011.\72\ The California alignments with 40 CFR 1065 included
in the 2011 Tier 4 amendments are provisions for using and calculating
an optional declared speed value (Sec. 1065.510(f)(3)(i)), and
provisions regarding the standardization of calculating exhaust
restriction set points (Sec. 1065.130(h)).\73\
---------------------------------------------------------------------------
\72\ Id.
\73\ Id.
---------------------------------------------------------------------------
The 2011 Tier 4 amendments incorporate EPA's modifications to 40
CFR part 1068 into the new test procedure entitled ``California Exhaust
Emission Standards and Test Procedures for New 2011 and Later Tier 4
Off-Road Compression Ignition Engines, Part I-F''. The 2011 Tier 4
amendments included alignments regarding allowance for distributors to
replace incorrect labels prior to sale of the engine to an ultimate
purchaser (Sec. 1068.101(b)(7)(i)(D)), incorporation of provisions
related to the duration and applicability of Executive Orders (Sec.
1068.103(c)), incorporation and clarification of anti-stockpiling
provisions (Sec. 1068.103 and 105), revisions to the label content for
replacement engines (Sec. 1068.240), clarification of the provisions
for shipping engines independently of required after treatment and for
delegated final assembly (Sec. 1068.260 and 261), clarification that
defect reporting applies only to regulated pollutants and revision of
thresholds for filing reports (Sec. 1068.501), and incorporation of
the federal definition for ``Date of Manufacture'' (Sec.
1068.801).\74\
---------------------------------------------------------------------------
\74\ Id. at 16.
---------------------------------------------------------------------------
The 2011 Tier 4 amendments also included a new section that
establishes an anti-stockpiling provision that is consistent with
recently added federal provisions in 40 CFR 1068.103 and 1068.105 which
address intentional over-production of engines prior to a year in which
a change in the emissions standards occur.\75\ The new section makes
clear that manufacturers cannot deviate from normal production and
inventory practices to circumvent the regulations.\76\
---------------------------------------------------------------------------
\75\ Id.
\76\ Id.
---------------------------------------------------------------------------
3. Amendments That Maintain Needed Differences Between California and
EPA Nonroad CI Programs
The 2011 Tier 4 amendments also maintain differences from the
federal provisions that are needed to support California's unique air
quality programs. These differences primarily consist of documentation
requirements. CARB states that none of the differences present any
technical obstacles for off-road engine manufacturers.\77\ The
differences include: enhanced emissions control labeling beyond that
required on federal labels to include information such as the
certification power category or an explicit designation of the
emissions tier to which the engine conforms; removing the prior
assurance to manufacturers that preliminary approvals of certification
will not usually be reversed absent the discovery of new information
contrary to the findings that resulted in the preliminary approval; not
exempting a small number of replacement engines from engine labeling
requirements; and not incorporating EPA's amended definitions of
``engine,'' which define an engine to be an engine block with an
installed crankshaft and ``partially complete engine'' as defined in 40
CFR 1068.30 and 1068.240.\78\
---------------------------------------------------------------------------
\77\ Id. at 17.
\78\ Id. at 17, 18.
---------------------------------------------------------------------------
C. California's 2011 Certification Test Fuel Amendments
The 2011 Certification Test Fuel amendments modify the
certification test fuel requirements for off-road SI, gasoline-fueled
engines to allow the use of 10-percent ethanol-blend of gasoline (E10)
as a certification fuel.\79\ The use of the E10 certification test fuel
is allowed as an option for certification exhaust emission testing of
new gasoline-fueled LSI, SORE, OHRV, and Recreational Marine off-road
categories from the 2013 through the 2019 model years, and is mandatory
for certification exhaust emission testing of these categories
beginning with the 2020 model year.\80\ The 2011 Certification Test
Fuel amendments also provide manufacturers the option of using other
renewable fuel blends that have been certified by CARB as yielding test
[[Page 76978]]
results equivalent to, or more stringent than those resulting from E10,
and which are appropriate for the certification of small off-road
engines beginning with the 2013 model year.\81\ The amendments maintain
test fuel consistency between on-road motor vehicles and most of the
off-road categories and establish complete consistency between the off-
road categories' certification test fuels and commercially available
fuels.\82\
---------------------------------------------------------------------------
\79\ Id. at 18.
\80\ Id.
\81\ Id.
\82\ Id.
---------------------------------------------------------------------------
D. Within-the-Scope Analysis
California requested that the Administrator confirm that the 2011
Amendments detailed above are within the scope of previously granted
authorizations.\83\ California asserted that all three sets of 2011
amendments met all three within-the-scope criteria, i.e. that the
amendments: (1) Do not undermine the original protectiveness
determination underlying California's regulations; (2) do not affect
the consistency of the regulations with section 202(a); and (3) do not
raise any new issues affecting the prior authorizations.\84\ We
received no adverse comments or evidence suggesting a within-the-scope
analysis is inappropriate, or that any of the three sets of 2011
amendments fail to meet any of the three criteria for within-the-scope
confirmation.
---------------------------------------------------------------------------
\83\ This request excluded the amendment that establishes the
Tier 4 alternative NOx + NMHC standards for off-road CI engines
because this amendment will only be utilized by manufacturers that
have accumulated emission credits. Such standards do not constitute
mandatory compliance requirements, but instead provide a compliance
alternative and do not require authorization. See Motor and
Equipment Mfrs. Ass'n, Inc. v. Environmental Protection Agency (MEMA
II), 627 F.2d 1128, 1132 (D.C. Cir. 1979)(a regulatory compliance
option is only a mandate that can result in a denial of a waiver if
the regulation does not specify another technically feasible
compliance option.)
\84\ Id. at 21.
---------------------------------------------------------------------------
In regard to the first within-the-scope criterion, CARB found that
the 2011 Amendments did not cause the California emissions standards,
in the aggregate, to be less protective of public health and welfare
than applicable federal standards. California asserts their
protectiveness determination is not arbitrary or capricious, and that
the elements of the 2011 Amendments do not affect the stringency of the
previously authorized SORE or Tier 4 Off-Road CI emission standards and
associated test procedures, or the other regulations and test
procedures affected by these amendments (LSI, Recreational Marine, and
OHRV).\85\ CARB asserts that, therefore, the subject regulations and
test procedures continue to be at least as protective of public health
and welfare as the federal nonroad emissions standards and test
procedures.
---------------------------------------------------------------------------
\85\ Id.
---------------------------------------------------------------------------
Based on the record before us and in the absence of any evidence to
the contrary, we cannot find that California's protectiveness
determination regarding the implementation of 2011 Amendments is
arbitrary or capricious.
In regard to the second within-the-scope criterion, the 2011
Amendments do not attempt to regulate new motor vehicles or motor
vehicles engines and so are consistent with section 209(a). They
likewise did not attempt to regulate any of the permanently preempted
engines or vehicles, and so are consistent with section 209(e)(1).
Finally, they did not cause any technological feasibility issues for
manufacturers or cause inconsistency between state and federal test
procedures, per section 209(b)(1)(C). No manufacturer raised technical
feasibility or lead time concerns regarding the 2011 Amendments.\86\
Additionally, the 2011 Amendments are later than EPA's corresponding
amendments to the federal nonroad regulations and associated test
procedures. Given these facts, EPA cannot find that the 2011 Amendments
are not technically feasible or do not provide sufficient lead
time.\87\ CARB enacted the 2011 Amendments at the behest of
manufacturers who had already implemented modifications to their
emissions facilities that are required by EPA's corresponding
amendments to the federal nonroad regulations. No technical feasibility
or lead time concerns were raised regarding the elements of the 2011
Certification Test Fuel amendments either.\88\ These amendments
establish complete consistency between the certification and the
commercially available fuels for off-road engines subject to
California's SORE, LSI, Recreational Marine, and OHRV regulations.\89\
Manufacturers of off-road spark-ignition, gasoline-fueled engines have
needed to account for the usage of E10 in their engines since December
31, 2009, and those engines have been capable of being emissions tested
using E10 by that date, which precedes the 2020 model-year requirement
to use E10 by ten years.\90\
---------------------------------------------------------------------------
\86\ Id. at 22.
\87\ Id.
\88\ Id.
\89\ Id. at 23.
\90\ Id.
---------------------------------------------------------------------------
The 2011 Amendments present no issue of incompatibility between
California and federal test procedures, as they essentially harmonize
California's test procedures associated with the SORE, Off-Road CI
Engine, LSI, Recreational Marine, and OHRV regulations with the
corresponding federal test procedures. The corresponding federal
regulations for such engines have already designated E10 as a test fuel
for exhaust emissions testing, so the amendments do not impose
inconsistent certification requirements so as to make manufacturers
unable to meet both California and federal requirements with one test
vehicle or engine.\91\
---------------------------------------------------------------------------
\91\ Id.
---------------------------------------------------------------------------
In regard to the third within-the-scope criterion, California
stated that it is not aware of any new issues presented by the 2011
Amendments that affect the previously granted authorizations for the
SORE, Off-Road CI Engine, LSI, Recreational Marine, or OHRV
regulations, and EPA has received no evidence to the contrary.\92\ We
therefore do not find any new issues raised by the amendments.
---------------------------------------------------------------------------
\92\ Id.
---------------------------------------------------------------------------
Having received no contrary evidence regarding these amendments, we
find that California has met the three criteria for a within-the-scope
authorization approval, and the 2011 Amendments are confirmed as within
the scope of previous EPA authorizations of California's SORE, Off-Road
CI Engine, LSI, Recreational Marine, or OHRV regulations.
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 the 2011 amendments to CARB's SORE
regulations, Tier 4 Off-Road CI regulations, and Exhaust Emission
Certification Test Fuel for Off-Road Spark-Ignition Engines, Equipment,
and Vehicles regulations described above and CARB's submissions for EPA
review, EPA is taking the following actions.
First, EPA confirms that California's 2011 amendments modifying its
SORE regulations is within the scope of prior authorizations. Second,
EPA confirms that California's amendment modifying its Tier 4 Off-Road
CI regulations is within the scope of prior authorizations. Third, EPA
confirms that California's amendment modifying its Exhaust Emission
Certification Test Fuel for Off-Road Spark-Ignition Engines,
[[Page 76979]]
Equipment, and Vehicles regulations is within the scope of prior
authorizations.
This decision will affect persons in California and those
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 February 9, 2016. 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: December 1, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-31189 Filed 12-10-15; 8:45 am]
BILLING CODE 6560-50-P
