California State Nonroad Engine Pollution Control Standards; Large Spark-Ignition (LSI) Engines; Notice of Decision, 24411-24416 [2023-08296]
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[FR Doc. 2023–08354 Filed 4–19–23; 8:45 am]
BILLING CODE 6717–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OAR–2021–0327; FRL–8869–02–
OAR]
California State Nonroad Engine
Pollution Control Standards; Large
Spark-Ignition (LSI) Engines; Notice of
Decision
Environmental Protection
Agency.
ACTION: Notice of decision.
AGENCY:
The Environmental Protection
Agency (‘‘EPA’’) is granting the
California Air Resources Board’s
(‘‘CARB’s’’) request for authorization of
California’s 2016 Large Spark Ignition
(‘‘LSI’’) Fleet Amendments to its large
spark-ignition engines fleets regulation
(‘‘2016 LSI Fleet Amendments’’). This
decision is granted under the authority
of the Clean Air Act (‘‘CAA’’).
DATES: Petitions for review must be filed
by June 20, 2023.
ADDRESSES: EPA has established a
docket for this action under Docket ID
EPA–HQ–OAR–2021–0327. 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 electronically
through www.regulations.gov. After
opening the website, enter ‘‘EPA–HQ–
OAR–2021–0327’’ 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
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SUMMARY:
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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 and authorization
Federal Register notices, some of which
are cited in this notice; the page can be
accessed at: https://www.epa.gov/stateand-local-transportation/vehicleemissions-california-waivers-andauthorizations.
FOR FURTHER INFORMATION CONTACT:
Julian M. Davis, Office of Transportation
and Air Quality, U.S. Environmental
Protection Agency, 2565 Plymouth Rd.,
Ann Arbor, MI 48105, Telephone: (734)
214–4029. Email: davis.julian@epa.gov;
or Kayla Steinberg, Office of
Transportation and Air Quality, U.S.
Environmental Protection Agency, 1200
Pennsylvania Ave. NW. Telephone:
(202) 564–7658. Email: steinberg.kayla@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The California Air Resources Board
(CARB) promulgated its first Large
Spark-Ignition (LSI) regulations,
applicable to new LSI engines, in 1999
and they remained unchanged until
CARB’s 2008 Amendments.1 EPA
authorized these first LSI regulations on
May 15, 2006.2 CARB adopted the
initial LSI Fleet Requirements (LSI Fleet
Requirements), applicable to fleet
operators on March 2, 2007. EPA
granted California an authorization for
the initial LSI Fleet Requirements in
2012.3 The LSI Fleet Requirements were
designed to address hydrocarbon (HC)
and nitrogen oxide (NOX) emissions
from existing LSI engines operating in
California and required fleets to meet
certain fleet average emission level
(FAEL) standards. CARB adopted its
2008 LSI Amendments on November 21,
2008. The 2008 LSI Amendments
created two new engine categories
below one-liter displacement, with new,
more stringent exhaust and evaporative
emission standards applicable to new
engines. These amendments also
provided clarification as to when
CARB’s off-road sport or utility
regulations apply to certain LSI
engines.4 CARB adopted its 2010 LSI
1 Title 13, California Code of Regulations (Cal.
Code Regs.), sections 2430 through 2439.
2 71 FR 29621, 29623 (May 15, 2006).
3 EPA granted an authorization for these
regulations at 77 FR 20388 (April 4, 2012).
4 Clean Air Act section 209(e)(2) Authorization
Support Document (Authorization Support
Document), EPA–HQ–OAR–2021–0327–0003, at 1.
Note, ‘‘off-road’’ is the term California uses in the
Health and Safety Code and in Title 13, California
Code of Regulations, and is intended to be
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Amendments on December 17, 2010.
EPA issued an authorization decision
for the 2008 and 2010 amendments in
2015.5 The 2010 LSI Amendments
expanded the ‘‘Limited Hours of Use
Provision’’ to encompass equipment
operated not more than 200 hours per
year subsequent to January 1, 2011, and
extended the preexisting compliance
extension period if CARB has not
verified a retrofit emission control
system, or if one is not commercially
available, from one year to two years.6
At its July 21, 2016, public hearing, the
CARB Board approved for adoption the
2016 LSI Fleet Amendments. By letter
dated March 15, 2021, CARB submitted
a request to EPA for an authorization to
enforce the 2016 LSI Fleet Amendments
and asked that EPA consider its
amendments as accompanying
enforcement procedures for standards
already authorized in EPA’s 2015
decision.7 The 2016 LSI Fleet
Amendments include reporting
requirements (e.g., initial and annual
reports, equipment transfer and sales
reports, and an extension of existing
reporting requirements for fleet
operators subject to FAEL). The 2016
LSI Fleet Amendments also include new
labeling requirements wherein, based on
operator provided information, CARB
will issue the operators a unique
Equipment Identification Number (EIN)
for each item of equipment reported,
and the EIN will become the basis for a
manufacturer’s equipment labels with a
number of associated requirements.8
On August 16, 2021, EPA issued a
notice seeking comment on CARB’s
2016 LSI Fleet Amendments as
accompanying enforcement
procedures.9
II. Principles Governing This Review
A. Clean Air Act Nonroad Engine and
Vehicle Authorizations
CAA section 209(e)(1) prohibits states
and local governments from adopting or
attempting to enforce any standard or
requirement relating to the control of
emissions from certain new nonroad
synonymous and interchangeable with the term
‘‘nonroad’’ as used in the CAA and Federal
regulations.’’ Id. at 1, note 1. In the rest of this
decision, the term ‘‘nonroad’’ will be used.
5 EPA granted a full authorization for the 2008
LSI Amendments and a within-the-scope
confirmation for the 2010 LSI Amendments at 80
FR 76468 (Dec. 9, 2015).
6 See Authorization Support Document, at 2–3.
7 See Authorization Support Document, at 1. See
also 80 FR 76468 for the full authorization of CARB
2008 LSI Amendments and within the scope of
CARB’s 2010 LSI Amendments.
8 See Title 13, Cal. Code Regs., section 2775, for
all large spark-ignition engine fleet requirements.
9 86 FR 45724 (Aug. 16, 2021).
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vehicles or engines.10 The CAA also
preempts states from adopting and
enforcing standards and other
requirements related to the control of
emissions from all other nonroad
engines or vehicles.11 CAA section
209(e)(2)(A), however, requires the
Administrator, after notice and
opportunity for public hearing, to
authorize California to adopt and
enforce standards and other
requirements relating to the control of
emissions from such vehicles or engines
not preempted by CAA section 209(e)(1)
if California determines that California
standards will be, in the aggregate, at
least as protective of public health and
welfare as applicable Federal standards.
However, EPA shall not grant such
authorization if it finds that: (1) The
protectiveness determination of
California is arbitrary and capricious; (2)
California does not need such standards
to meet compelling and extraordinary
conditions; or (3) California standards
and accompanying enforcement
procedures are not consistent with CAA
section 209.12 On July 20, 1994, EPA
promulgated a rule (‘‘the 1994 rule’’)
that sets forth, among other things,
regulations providing the criteria, as
found in CAA section 209(e)(2), which
EPA must consider before granting any
California authorization request for new
nonroad engine or vehicle emission
standards.13 EPA revised these
regulations in 1997.14
10 CAA section 209(e)(1) prohibits states or any
political subdivision from adopting or enforcing
any standard or other requirement relating to the
control of emissions from new engines which are
used in construction equipment or vehicles or used
in farm equipment or vehicles, and which are
smaller than 175 horsepower, or new locomotives
or new engines used in locomotives. See 40 CFR
1074.10(a).
11 See CAA section 209(e)(2), 42 U.S.C. 7543(e).
See 40 CFR 1074.10 (b). Therefore, States and
localities are categorically prohibited from
regulating the control of emissions from new
nonroad vehicles and engines set forth in section
209(e)(1) of the CAA, but for ‘‘all other’’ nonroad
vehicles and engines (including non-new engines
and vehicles otherwise noted in 209(e)(1) and all
other new and non-new nonroad engines and
vehicles) are only preempted.
12 See 40 CFR 1074.105.
13 59 FR 36969 (July 20, 1994).
14 40 CFR 1074.105:
(a) The Administrator will grant the authorization
if California determines that its standards will be,
in the aggregate, at least as protective of public
health and welfare as otherwise applicable federal
standards.
(b) The authorization will not be granted if the
Administrator finds that any of the following are
true:
(1) California’s determination is arbitrary and
capricious.
(2) California does not need such standards to
meet compelling and extraordinary conditions.
(3) The California standards and accompanying
enforcement procedures are not consistent with
section 209 of the Act (42 U.S.C. 7543).
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As stated in the preamble to the 1994
rule, EPA has historically interpreted
CAA section 209(e)(2)(iii) ‘‘consistency’’
inquiry to require that California
standards and enforcement procedures
be consistent with CAA sections 209(a),
209(e)(1), and 209(b)(1)(C) (as EPA has
interpreted that subsection in the
context of CAA section 209(b) motor
vehicle waivers).15 In order to be
consistent with CAA 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
CAA 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 CAA
section 209(b)(1)(C), EPA typically
reviews nonroad authorization requests
under the same ‘‘consistency’’ criteria
that are applied to motor vehicle waiver
requests. Pursuant to CAA section
209(b)(1)(C), the Administrator shall not
grant California a motor vehicle waiver
if he finds that California ‘‘standards
and accompanying enforcement
procedures are not consistent with
section 202(a)’’ of the CAA. Previous
decisions granting waivers and
authorizations have noted that state
standards and enforcement procedures
are inconsistent with CAA 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.16 When considering
whether to grant authorizations for
accompanying enforcement procedures
tied to standards (such as record
keeping and labeling requirements) for
which an authorization has already been
granted, EPA has evaluated: (1) Whether
the enforcement procedures are so lax
that they threaten the validity of
California’s determination that its
standards are as protective of public
health and welfare as applicable Federal
standards, and (2) whether the Federal
(c) In considering any request to authorize
California to adopt or enforce standards or other
requirements relating to the control of emissions
from new nonroad spark-ignition engines smaller
than 50 horsepower, the Administrator will give
appropriate consideration to safety factors
(including the potential increased risk of burn or
fire) associated with compliance with the California
standard.
15 59 FR at 36982–83.
16 Id. See also 78 FR 58090, 58092 (Sept. 20,
2013).
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and California enforcement procedures
are consistent.17
B. Burden of Proof
In MEMA the Court stated that the
Administrator’s role in a CAA 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.’’ 18 The
court in MEMA I considered the
standard of proof under CAA section
209 for the two findings related to
granting a waiver for an ‘‘accompanying
enforcement procedure’’ (as opposed to
the standards themselves): (1)
Protectiveness in the aggregate and (2)
consistency with section 202(a)
findings. The Court instructed that ‘‘the
standard of proof must take account of
the nature of the risk of error involved
in any given decision, and it therefore
varies with the finding involved. We
need not decide how this standard
operates in every waiver decision.’’ 19
The Court upheld the Administrator’s
position that, to deny a waiver, there
must be ‘clear and compelling evidence’
to show that proposed procedures
undermine the protectiveness of
California’s standards.20 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.21 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 standard of proof under
CAA section 209 concerning a waiver
request for ‘‘standards,’’ as compared to
accompanying enforcement procedures,
there is nothing in the opinion to
17 See Motor & Equipment Manufacturers
Association v. Environmental Protection Agency
(MEMA I), 627 F.2d 1095, 1112 (D.C. Cir. 1979).
California certification test procedures need not be
identical to the Federal test procedures to be
‘‘consistent.’’ California procedures would be
inconsistent, however, if manufacturers would be
unable to meet both the state and Federal test
requirements with the same test vehicle in the
course of the same test. See, e.g., 43 FR 32182, (July
25, 1978).
18 MEMA I, 627 F.2d at 1122.
19 Id.
20 Id.
21 Id.
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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.’’ 22
Opponents of the waiver or
authorization bear the burden of
showing that the criteria for a denial of
California’s waiver or authorization
request have been met. As found in
MEMA I, this obligation rests firmly
with opponents of the waiver or
authorization in a CAA section 209
proceeding:
The language of the statute and its
legislative history indicate that California’s
regulations, and California’s determinations
that they 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.23
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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 or
authorization 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.’ ’’ 24 Therefore, the
Administrator’s burden is to act
‘‘reasonably.’’ 25
C. Deference to California
In previous waiver and authorization
decisions, EPA has recognized that the
intent of Congress in creating a limited
review based on specifically listed
criteria was to ensure that the Federal
government did not second-guess state
policy choices. As the Agency explained
in one prior waiver decision: ‘‘It is
worth noting . . . I would feel
constrained to approve a California
approach to the problem which I might
also feel unable to adopt at the federal
22 80
FR 76468, 76471 (December 9, 2015).
at 1121.
24 Id. at 1126.
25 Id.
23 Id.
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level in my own capacity as a regulator
. . . Since a balancing of 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.’’ 26
Similarly, EPA has stated that the text,
structure, and history of the California
waiver provision clearly indicate both a
Congressional intent and appropriate
EPA practice of leaving the decision on
‘‘ambiguous and controversial matters of
public policy’’ to California’s
judgment.27 This interpretation is
supported by relevant discussion in the
House Committee Report for the 1977
Amendments to the CAA. Congress had
the opportunity through the 1977
Amendments to restrict the preexisting
waiver provision but elected instead to
expand California’s flexibility to adopt a
complete program of motor vehicle
emission controls. The report explains
that the amendment is intended to ratify
and strengthen the preexisting
California waiver provision and to
affirm the underlying intent of that
provision, that is, to afford California
the broadest possible discretion in
selecting the best means to protect the
health of its citizens and the public
welfare.28
D. EPA’s Administrative Process in
Consideration of California’s Request
On August 16, 2021, EPA issued a
notice for comment regarding CARB’s
2016 LSI Fleet Amendments. The notice
requested the public provide EPA with
comment on issues relevant to EPA’s
consideration of the accompanying
enforcement procedures established
within the 2016 LSI Fleet Amendments,
specifically whether California’s 2016
LSI Fleet Amendments: (a) undermine
California’s previous determination that
its standards, in the aggregate, are at
least as protective of public health and
welfare as comparable Federal
standards; (b) affect the consistency of
California’s requirements with CAA
section 209; or (c) raise any other new
issues relating to the three authorization
criteria affecting EPA’s previous waiver
or authorization determinations.29
EPA did not receive a request for a
public hearing. As a consequence, EPA
did not hold a public hearing on this
matter. EPA did receive one comment,
26 See, ‘‘California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,’’
40 FR 23102, 23103 (May 28, 1975).
27 Id. at 23103–04.
28 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No.
294, 95th Cong., 1st Sess. 301–02 (1977)).
29 86 FR 45724 (Aug. 16, 2021).
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from the Outdoor Power Equipment
Institute (OPEI), which asked EPA to
deny California’s authorization request
and to revise the Agency’s 1994 rule
implementing CAA section 209(e) to
prevent California from both adopting
and enforcing its state regulations until
after EPA has waived preemption under
CAA section 209. The commenter
requested that EPA deny California’s
request because it believes the State is
enforcing its nonroad emissions
regulations prior to an EPA
authorization. OPEI states that
California’s position is inconsistent with
the due process protections intended
under CAA section 209, including
safeguards for the public such as
California’s requiring a waiver or
authorization to be granted in order to
enforce the state’s emission standards.
In addition to denying California this
authorization, OPEI requested EPA: (1)
Revisit its 1994 rule and change its
interpretation to bar California from
adopting and enforcing its regulations
prior to EPA issuing a waiver or
authorization; (2) clarify adoption dates,
implementation dates and lead times,
and enforcement terms; and (3) establish
that the effective dates and lead times
for CARB rules requiring an EPA waiver
or authorization must consider the
timing of the waiver submission and
approval process.
III. Discussion
Our analysis of the 2008 LSI
Amendments in the context of the full
authorization criteria is set forth below.
A. California’s Protectiveness
Determination
CAA section 209(e)(2)(A)(i) of the
CAA instructs that EPA cannot grant an
authorization if the Agency finds that
California was arbitrary and capricious
in its determination that its
amendments are, in the aggregate, at
least as protective of public health and
welfare as applicable Federal standards.
In adopting the 2016 LSI Fleet
Amendments, CARB’s Board approved
Resolution 16–10, in which it expressly
declared, ‘‘ ‘the Board hereby
determines, in accordance with the
CAA, section 209(e)(2), that the
amendments adopted herein do not
undermine the Board’s previous
determination that the regulation’s
emission standards, other emission
related requirements, and associated
enforcement procedures are, in the
aggregate, at least as protective of the
public health and welfare as applicable
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federal standards.’ ’’ 30 CARB further
stated that the 2016 LSI Fleet
Amendments ‘‘do not reduce the
stringency of the FAEL standards
established by the initial LSI Fleet
Requirements but will instead enable
CARB to more effectively enforce the
LSI Fleet Requirements.’’ 31 CARB also
pointed out that there are no Federal
standards to regulate engines that have
been placed into service, such as
regulations applicable to fleet operators,
under the CAA and, therefore, there is
no question that California’s standards
are at least as protective as Federal
standards.
EPA requested but did not receive any
comment on whether the 2016 LSI Fleet
Amendment undermine California’s
previous protectiveness determination.
We cannot find that California’s 2016
LSI Fleet Amendments undermine
California’s previous determination that
its standards and accompanying
enforcement procedures, in the
aggregate, are at least as protective of
public health and welfare as applicable
Federal standards. Thus, we cannot
deny CARB’s request for authorization
of its amendments based on this
criterion.
engines. California’s 2016 LSI Fleet
Amendments expressly apply only to
nonroad engines and do not apply to
engines used in motor vehicles as
defined by CAA section 216(2). We did
not receive any comments on
California’s consistency with CAA
section 209(a). Therefore, EPA cannot
deny California’s request on the basis
that California’s 2016 LSI Fleet
Amendments are not consistent with
CAA section 209(a).
B. Consistency With CAA Section 209
Section 209(e)(2)(A)(iii) of the Act
instructs that EPA cannot grant an
authorization if California’s standards
and enforcement procedures are not
consistent with ‘‘this section.’’ The 1994
rule sets forth, among other things,
regulations providing the criteria, as
found in section 209(e)(2), which EPA
must consider before granting any
California authorization request for new
nonroad engine or vehicle emission
standards. EPA has historically
interpreted the section 209(e)(2)(iii)
‘‘consistency’’ inquiry to require, at
minimum, that California standards and
enforcement procedures be consistent
with section 209(a), section 209(e)(1),
and section 209(b)(1)(C) (as EPA has
interpreted that subsection in the
context of section 209(b) motor vehicle
waivers).32 EPA has interpreted this last
subsection in the context of motor
vehicle waivers. Thus, this can be
viewed as a three-pronged test as
evaluated below.
3. Consistency With CAA Section
209(b)(1)(C)
The requirement that California’s
standards be consistent with CAA
section 209(b)(1)(C) effectively requires
consistency with section 202(a). EPA
has interpreted consistency with section
202(a) using a two-pronged test: (1)
Whether there is sufficient lead time to
permit the development of technology
necessary to meet the standards and
other requirements, giving appropriate
consideration to the cost of compliance
in the time frame provided, and (2)
whether the California and Federal test
procedures are sufficiently compatible
to permit manufacturers to meet both
the state and Federal test requirements
with one test vehicle or engine.33 The
scope of EPA’s review of whether
California’s action is consistent with
CAA section 202(a) is narrow. The
determination is limited to whether
those opposed to the authorization have
met their burden of establishing that
California’s standards are
technologically infeasible, or that
California’s test procedures impose
requirements inconsistent with the
Federal test procedures.34
1. Consistency With CAA Section 209(a)
To be consistent with CAA section
209(a), California’s 2016 LSI
Amendments must not apply to new
motor vehicles or new motor vehicle
30 CARB, Resolution 16–10 (quoted in
Authorization Support Document, at 7–8).
31 Id. at 8.
32 59 FR at 36982–83.
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2. Consistency With CAA Section
209(e)(1)
To be consistent with CAA section
209(e)(1), California’s 2016 LSI Fleet
Amendments must not affect new farm
or construction equipment or vehicles
that are below 175 horsepower, or new
locomotives or new engines used in
locomotives. CARB notes that its 2016
LSI Fleet Amendments do not affect
such permanently preempted vehicles
or engines. EPA did not receive any
comments regarding California’s
consistency with section 209(e)(1).
Therefore, EPA cannot deny California’s
request on the basis that California’s
2016 LSI Fleet Amendments are not
consistent with section 209(e)(1).
a. Technological Feasibility
Congress has stated that the
consistency requirement of section
33 See
61 FR 53371, 53372 (Oct. 11, 1996).
34 MEMA I, 627, F.2d at 1126.
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202(a) relates to technological
feasibility.35 CAA section 202(a)(2)
states, in part, that any regulation
promulgated under its authority ‘‘shall
take effect after such period as the
Administrator finds necessary to permit
the development and application of the
requisite technology, giving appropriate
consideration to the cost of compliance
within such period.’’ Section 202(a)
thus requires the Administrator to first
determine whether adequate technology
already exists; or if it does not, whether
there is adequate time to develop and
apply the technology before the
standards go into effect. The latter
scenario also requires the Administrator
to decide whether the cost of developing
and applying the technology within that
time is feasible.
The 2016 LSI Fleet Amendments
include reporting requirements (e.g.,
initial and annual reports, equipment
transfer and sales reports, and an
extension of existing reporting
requirements for fleet operators subject
to fleet average emission limits). The
2016 LSI Fleet Amendments also
include new labeling requirements
wherein, based on operator provided
information, CARB will issue the
operators a unique EIN for each item of
equipment reported and become the
basis of a manufacturer’s equipment
labels with a number of associated
requirements. EPA did not receive any
comments suggesting that CARB’s
accompanying enforcement procedures
are technologically infeasible.
Consequently, based on the record, EPA
cannot deny California authorization of
its 2016 LSI Fleet Amendments based
on technological infeasibility.
b. Consistency With Federal Test
Procedures
California’s 2016 LSI Amendments do
not alter the testing required under the
previously granted LSI Fleet
authorization. California states in its
authorization support document, ‘‘[t]he
2016 LSI Fleet Amendments also do not
raise any issue regarding
incompatibility between California and
Federal test procedures because EPA
has no comparable requirements.36 We
did not receive any comment regarding
inconsistency with Federal test
procedures that would provide EPA a
basis to deny this authorization.
Consequently, based on the record, EPA
cannot deny California an authorization
on the basis of inconsistency with
Federal test procedures.
35 H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301
(1977).
36 Authorization Support Document, at 9.
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C. Other Issues Affecting EPA’s
Evaluation of CAA Section 209(e)
Criteria
EPA has received comment outside
the scope of the three authorization
criteria in section 209(e)(1) of the CAA.
A summary of OPEI’s comment is set
forth above. EPA does not believe OPEI
has provided comments directly related
to the applicable criteria EPA may
consider when reviewing a request from
California for a waiver or authorization.
OPEI has not met its burden of proof to
demonstrate that the basis for denying
an authorization under section 209(e)(1)
has been met.
In previous decisions on waivers and
authorizations, EPA has stated that
Congress intended EPA’s review of
California’s decision-making to be
narrow. This has led EPA to reject
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 air
quality not commensurate with its cost 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.37
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EPA has noted that the statute lists three
specific grounds for rejecting an
authorization request.38 This has led
EPA to reject arguments that are outside
the scope of the three statutory criteria
when considering whether to grant or
deny a waiver request.39
EPA believes OPEI’s challenge to
California’s exercise of California’s
enforcement procedures is misplaced in
this request for an authorization.
Consideration of a request for
authorization is limited to the criteria
outlined in CAA section 209(e)(2)(A),
i.e., whether: (1) California’s
determination is arbitrary and
capricious, (2) California does not need
such standards to meet compelling and
extraordinary conditions,40 or (3)
37 78 FR 2111, 2115 (Jan. 9, 2013). See also 36 FR
17458 (Aug. 31, 1971). Note that the more stringent
standard expressed here, in 1971, was superseded
by the 1977 Amendments to CAA 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.
38 Id.
39 87 FR 14342 (March 14, 2022).
40 As noted above, EPA’s review of waiver
requests for accompanying enforcement procedures
does not include a review of the second waiver
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California standards and accompanying
enforcement procedures are not
consistent with section 209 of the CAA.
OPEI does not argue that the 2016 LSI
Fleet Amendments and its
accompanying enforcement procedures
affect EPA’s prior authorization decision
or alters California’s previous grant of
an EPA authorization. An evaluation of
the issues related to whether California
is improperly enforcing its regulations
before a waiver or authorization is
issued by EPA is not among the criteria
listed under CAA section 209(e)(1). EPA
may only deny an authorization based
on the criteria in CAA section 209(e)(1)
and any issues raised regarding the
improper enforcement by California of
its regulations prior to receiving a
waiver or authorization is not one of
those criteria. Therefore, given OPEI
does not raise new issues affecting
EPA’s evaluation of CAA section
209(e)(1) criteria, and the issues raised
by OPEI in its comments may not be
used as a basis of denying California
this authorization.
Similarly, OPEI’s comments seeking
revision of EPA’s authorization
regulations are misplaced. EPA did not
reopen those regulations in this
proceeding, and therefore those
comments are beyond the scope of this
action.
EPA notes, without reopening our
regulations, that the regulations
implementing CAA section 209(e)(2) are
at 40 CFR part 1074, subpart B.41 We
also note that the ‘‘lead time’’ associated
with the evaluation of California’s
regulations under CAA section
209(e)(2)(A)(iii) is measured from when
California adopts its regulations.42 Once
EPA authorizes CARB’s authorization
request, which includes an assessment
of CAA section 209(e)(2)(A)(iii), then
CARB is no longer subject to the
preemption in CAA section 209 and
may enforce its regulations under its
state law authorities.
IV. Decision
After evaluating California’s 2016 LSI
Fleet Amendments, CARB’s
submissions, and the lack of any
relevant adverse comment, EPA is
granting an authorization to California
for its 2016 LSI Fleet Amendments.
prong. In any event, no adverse comment was
submitted to suggest CARB’s regulations did not
meet this criterion and EPA cannot deny the waiver
request on this basis.
41 40 CFR 1074.101(a) provides that California
must request authorization from the Administrator
of EPA to enforce its adopted standards. See also
95 FR 3699 (July 20, 1994).
42 59 FR 3969, 36981–36983 (July 20, 1994).
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24415
V. Judicial Review
Section 307(b)(1) of the CAA governs
judicial review of final actions by the
EPA. This section provides, in part, that
petitions for review must be filed in the
United States Court of Appeals for the
District of Columbia Circuit: (i) when
the agency action consists of ‘‘nationally
applicable regulations promulgated, or
final actions taken, by the
Administrator,’’ or (ii) when such action
is locally or regionally applicable, but
‘‘such action is based on a
determination of nationwide scope or
effect and if in taking such action the
Administrator finds and publishes that
such action is based on such a
determination.’’ For locally or regionally
applicable final actions, the CAA
reserves to the EPA complete discretion
whether to invoke the exception in (ii).
To the extent a court finds this final
action to be locally or regionally
applicable, the Administrator is
exercising the complete discretion
afforded to him under the CAA to make
and publish a finding that this action is
based on a determination of
‘‘nationwide scope or effect’’ within the
meaning of CAA section 307(b)(1) for
several reasons.43 This final action
grants an authorization for amendments
to California’s LSI Fleet regulations that
were previously authorized by EPA. As
such, this final action will affect fleet
operators located within and outside
California that are subject to the
reporting and labeling requirements in
those regulations while operating their
equipment within California.
Furthermore, the LSI Fleet
regulations, and the amendments to
those regulations that are the subject of
today’s action, the 2016 LSI Fleet
Amendments, are part of California’s
nonroad emissions program that,
together with its on-highway emissions
program, are regulatory programs that
EPA may waive under CAA section 209.
As required by statute, in evaluating the
authorization criteria in this action, EPA
considers not only the 2016 LSI Fleet
Amendments in isolation, but in the
context of the entire California program.
See CAA section 209(e)(2)(A) (requiring
that the protectiveness finding be made
for California’s standards ‘‘in the
aggregate’’). Moreover, EPA generally
applies a consistent statutory
interpretation and analytical framework
43 In deciding whether to invoke the exception by
making and publishing a finding that this final
action is based on a determination of nationwide
scope or effect, the Administrator has also taken
into account a number of policy considerations,
including his judgment balancing the benefit of
obtaining the D.C. Circuit’s authoritative centralized
review versus allowing development of the issue in
other contexts and the best use of Agency resources.
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in evaluating and deciding various
authorization and waiver requests under
CAA section 209. EPA also relies on the
extensive body of D.C. Circuit case law
developed by that court since 1979 as it
has reviewed and decided judicial
challenges to these actions. As such,
judicial review of any challenge to this
action in the D.C. Circuit will centralize
review of national issues in that court
and advance other Congressional
principles underlying this CAA
provision of avoiding piecemeal
litigation, furthering judicial economy,
and eliminating the risk of inconsistent
judgments.
For these reasons, the Administrator
is exercising the complete discretion
afforded to him by the CAA and hereby
finds that this final action is based on
a determination of nationwide scope or
effect for purposes of CAA section
307(b)(1) and is hereby publishing that
finding in the Federal Register. Under
section 307(b)(1) of the CAA, petitions
for judicial review of this action must be
filed in the United States Court of
Appeals for the District of Columbia
Circuit by June 20, 2023.
VI. 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).
Michael S. Regan,
Administrator.
[FR Doc. 2023–08296 Filed 4–19–23; 8:45 am]
BILLING CODE 6560–50–P
ddrumheller on DSK120RN23PROD with NOTICES1
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPPT–2023–0061; FRL–10581–
03–OCSPP]
Certain New Chemicals; Receipt and
Status Information for March 2023
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
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20:01 Apr 19, 2023
Jkt 259001
EPA is required under the
Toxic Substances Control Act (TSCA),
as amended by the Frank R. Lautenberg
Chemical Safety for the 21st Century
Act, to make information publicly
available and to publish information in
the Federal Register pertaining to
submissions under TSCA Section 5,
including notice of receipt of a
Premanufacture notice (PMN),
Significant New Use Notice (SNUN), or
Microbial Commercial Activity Notice
(MCAN), including an amended notice
or test information; an exemption
application (Biotech exemption); an
application for a test marketing
exemption (TME), both pending and/or
concluded; a notice of commencement
(NOC) of manufacture (including
import) for new chemical substances;
and a periodic status report on new
chemical substances that are currently
under EPA review or have recently
concluded review. This document
covers the period from 3/1/2023 to 3/31/
2023.
DATES: Comments identified by the
specific case number provided in this
document must be received on or before
May 22, 2023.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPPT–2023–0061,
through the Federal eRulemaking Portal
at https://www.regulations.gov. Follow
the online instructions for submitting
comments. Do not submit electronically
any information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Additional
instructions on commenting and visiting
the docket, along with more information
about dockets generally, is available at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Jim
Rahai, Project Management and
Operations Division (MC 7407M), Office
of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460–0001; telephone number: (202)
564–8593; email address: rahai.jim@
epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. What action is the Agency taking?
This document provides the receipt
and status reports for the period from 3/
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Fmt 4703
Sfmt 4703
01/2023 to 3/31/2023. The Agency is
providing notice of receipt of PMNs,
SNUNs, and MCANs (including
amended notices and test information);
an exemption application under 40 CFR
part 725 (Biotech exemption); TMEs,
both pending and/or concluded; NOCs
to manufacture a new chemical
substance; and a periodic status report
on new chemical substances that are
currently under EPA review or have
recently concluded review.
EPA is also providing information on
its website about cases reviewed under
the amended TSCA, including the
section 5 PMN/SNUN/MCAN and
exemption notices received, the date of
receipt, the final EPA determination on
the notice, and the effective date of
EPA’s determination for PMN/SNUN/
MCAN notices on its website at: https://
www.epa.gov/reviewing-new-chemicalsunder-toxic-substances-control-act-tsca/
status-pre-manufacture-notices. This
information is updated on a weekly
basis.
B. What is the Agency’s authority for
taking this action?
Under the Toxic Substances Control
Act (TSCA), 15 U.S.C. 2601 et seq., a
chemical substance may be either an
‘‘existing’’ chemical substance or a
‘‘new’’ chemical substance. Any
chemical substance that is not on EPA’s
TSCA Inventory of Chemical Substances
(TSCA Inventory) is classified as a ‘‘new
chemical substance,’’ while a chemical
substance that is listed on the TSCA
Inventory is classified as an ‘‘existing
chemical substance.’’ (See TSCA section
3(11).) For more information about the
TSCA Inventory please go to: https://
www.epa.gov/inventory.
Any person who intends to
manufacture (including import) a new
chemical substance for a non-exempt
commercial purpose, or to manufacture
or process a chemical substance in a
non-exempt manner for a use that EPA
has determined is a significant new use,
is required by TSCA section 5 to
provide EPA with a PMN, MCAN, or
SNUN, as appropriate, before initiating
the activity. EPA will review the notice,
make a risk determination on the
chemical substance or significant new
use, and take appropriate action as
described in TSCA section 5(a)(3).
TSCA section 5(h)(1) authorizes EPA
to allow persons, upon application and
under appropriate restrictions, to
manufacture or process a new chemical
substance, or a chemical substance
subject to a significant new use rule
(SNUR) issued under TSCA section
5(a)(2), for ‘‘test marketing’’ purposes,
upon a showing that the manufacture,
processing, distribution in commerce,
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]]>Agencies
[Federal Register Volume 88, Number 76 (Thursday, April 20, 2023)]
[Notices]
[Pages 24411-24416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08296]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2021-0327; FRL-8869-02-OAR]
California State Nonroad Engine Pollution Control Standards;
Large Spark-Ignition (LSI) Engines; Notice of Decision
AGENCY: Environmental Protection Agency.
ACTION: Notice of decision.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (``EPA'') is granting the
California Air Resources Board's (``CARB's'') request for authorization
of California's 2016 Large Spark Ignition (``LSI'') Fleet Amendments to
its large spark-ignition engines fleets regulation (``2016 LSI Fleet
Amendments''). This decision is granted under the authority of the
Clean Air Act (``CAA'').
DATES: Petitions for review must be filed by June 20, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2021-0327. 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
electronically through www.regulations.gov. After opening the website,
enter ``EPA-HQ-OAR-2021-0327'' 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 and authorization Federal Register notices, some
of which are cited in this notice; the page can be accessed at: https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations.
FOR FURTHER INFORMATION CONTACT: Julian M. Davis, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
2565 Plymouth Rd., Ann Arbor, MI 48105, Telephone: (734) 214-4029.
Email: [email protected]; or Kayla Steinberg, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
1200 Pennsylvania Ave. NW. Telephone: (202) 564-7658. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The California Air Resources Board (CARB) promulgated its first
Large Spark-Ignition (LSI) regulations, applicable to new LSI engines,
in 1999 and they remained unchanged until CARB's 2008 Amendments.\1\
EPA authorized these first LSI regulations on May 15, 2006.\2\ CARB
adopted the initial LSI Fleet Requirements (LSI Fleet Requirements),
applicable to fleet operators on March 2, 2007. EPA granted California
an authorization for the initial LSI Fleet Requirements in 2012.\3\ The
LSI Fleet Requirements were designed to address hydrocarbon (HC) and
nitrogen oxide (NOX) emissions from existing LSI engines
operating in California and required fleets to meet certain fleet
average emission level (FAEL) standards. CARB adopted its 2008 LSI
Amendments on November 21, 2008. The 2008 LSI Amendments created two
new engine categories below one-liter displacement, with new, more
stringent exhaust and evaporative emission standards applicable to new
engines. These amendments also provided clarification as to when CARB's
off-road sport or utility regulations apply to certain LSI engines.\4\
CARB adopted its 2010 LSI Amendments on December 17, 2010. EPA issued
an authorization decision for the 2008 and 2010 amendments in 2015.\5\
The 2010 LSI Amendments expanded the ``Limited Hours of Use Provision''
to encompass equipment operated not more than 200 hours per year
subsequent to January 1, 2011, and extended the preexisting compliance
extension period if CARB has not verified a retrofit emission control
system, or if one is not commercially available, from one year to two
years.\6\ At its July 21, 2016, public hearing, the CARB Board approved
for adoption the 2016 LSI Fleet Amendments. By letter dated March 15,
2021, CARB submitted a request to EPA for an authorization to enforce
the 2016 LSI Fleet Amendments and asked that EPA consider its
amendments as accompanying enforcement procedures for standards already
authorized in EPA's 2015 decision.\7\ The 2016 LSI Fleet Amendments
include reporting requirements (e.g., initial and annual reports,
equipment transfer and sales reports, and an extension of existing
reporting requirements for fleet operators subject to FAEL). The 2016
LSI Fleet Amendments also include new labeling requirements wherein,
based on operator provided information, CARB will issue the operators a
unique Equipment Identification Number (EIN) for each item of equipment
reported, and the EIN will become the basis for a manufacturer's
equipment labels with a number of associated requirements.\8\
---------------------------------------------------------------------------
\1\ Title 13, California Code of Regulations (Cal. Code Regs.),
sections 2430 through 2439.
\2\ 71 FR 29621, 29623 (May 15, 2006).
\3\ EPA granted an authorization for these regulations at 77 FR
20388 (April 4, 2012).
\4\ Clean Air Act section 209(e)(2) Authorization Support
Document (Authorization Support Document), EPA-HQ-OAR-2021-0327-
0003, at 1. Note, ``off-road'' is the term California uses in the
Health and Safety Code and in Title 13, California Code of
Regulations, and is intended to be synonymous and interchangeable
with the term ``nonroad'' as used in the CAA and Federal
regulations.'' Id. at 1, note 1. In the rest of this decision, the
term ``nonroad'' will be used.
\5\ EPA granted a full authorization for the 2008 LSI Amendments
and a within-the-scope confirmation for the 2010 LSI Amendments at
80 FR 76468 (Dec. 9, 2015).
\6\ See Authorization Support Document, at 2-3.
\7\ See Authorization Support Document, at 1. See also 80 FR
76468 for the full authorization of CARB 2008 LSI Amendments and
within the scope of CARB's 2010 LSI Amendments.
\8\ See Title 13, Cal. Code Regs., section 2775, for all large
spark-ignition engine fleet requirements.
---------------------------------------------------------------------------
On August 16, 2021, EPA issued a notice seeking comment on CARB's
2016 LSI Fleet Amendments as accompanying enforcement procedures.\9\
---------------------------------------------------------------------------
\9\ 86 FR 45724 (Aug. 16, 2021).
---------------------------------------------------------------------------
II. Principles Governing This Review
A. Clean Air Act Nonroad Engine and Vehicle Authorizations
CAA section 209(e)(1) prohibits states and local governments from
adopting or attempting to enforce any standard or requirement relating
to the control of emissions from certain new nonroad
[[Page 24412]]
vehicles or engines.\10\ The CAA also preempts states from adopting and
enforcing standards and other requirements related to the control of
emissions from all other nonroad engines or vehicles.\11\ CAA section
209(e)(2)(A), however, requires the Administrator, after notice and
opportunity for public hearing, to authorize California to adopt and
enforce standards and other requirements relating to the control of
emissions from such vehicles or engines not preempted by CAA section
209(e)(1) if California determines that California standards will be,
in the aggregate, at least as protective of public health and welfare
as applicable Federal standards. However, EPA shall not grant such
authorization if it finds that: (1) The protectiveness determination of
California is arbitrary and capricious; (2) California does not need
such standards to meet compelling and extraordinary conditions; or (3)
California standards and accompanying enforcement procedures are not
consistent with CAA section 209.\12\ On July 20, 1994, EPA promulgated
a rule (``the 1994 rule'') that sets forth, among other things,
regulations providing the criteria, as found in CAA section 209(e)(2),
which EPA must consider before granting any California authorization
request for new nonroad engine or vehicle emission standards.\13\ EPA
revised these regulations in 1997.\14\
---------------------------------------------------------------------------
\10\ CAA section 209(e)(1) prohibits states or any political
subdivision from adopting or enforcing any standard or other
requirement relating to the control of emissions from new engines
which are used in construction equipment or vehicles or used in farm
equipment or vehicles, and which are smaller than 175 horsepower, or
new locomotives or new engines used in locomotives. See 40 CFR
1074.10(a).
\11\ See CAA section 209(e)(2), 42 U.S.C. 7543(e). See 40 CFR
1074.10 (b). Therefore, States and localities are categorically
prohibited from regulating the control of emissions from new nonroad
vehicles and engines set forth in section 209(e)(1) of the CAA, but
for ``all other'' nonroad vehicles and engines (including non-new
engines and vehicles otherwise noted in 209(e)(1) and all other new
and non-new nonroad engines and vehicles) are only preempted.
\12\ See 40 CFR 1074.105.
\13\ 59 FR 36969 (July 20, 1994).
\14\ 40 CFR 1074.105:
(a) The Administrator will grant the authorization if California
determines that its standards will be, in the aggregate, at least as
protective of public health and welfare as otherwise applicable
federal standards.
(b) The authorization will not be granted if the Administrator
finds that any of the following are true:
(1) California's determination is arbitrary and capricious.
(2) California does not need such standards to meet compelling
and extraordinary conditions.
(3) The California standards and accompanying enforcement
procedures are not consistent with section 209 of the Act (42 U.S.C.
7543).
(c) In considering any request to authorize California to adopt
or enforce standards or other requirements relating to the control
of emissions from new nonroad spark-ignition engines smaller than 50
horsepower, the Administrator will give appropriate consideration to
safety factors (including the potential increased risk of burn or
fire) associated with compliance with the California standard.
---------------------------------------------------------------------------
As stated in the preamble to the 1994 rule, EPA has historically
interpreted CAA section 209(e)(2)(iii) ``consistency'' inquiry to
require that California standards and enforcement procedures be
consistent with CAA sections 209(a), 209(e)(1), and 209(b)(1)(C) (as
EPA has interpreted that subsection in the context of CAA section
209(b) motor vehicle waivers).\15\ In order to be consistent with CAA
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 CAA 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 CAA section 209(b)(1)(C), EPA
typically reviews nonroad authorization requests under the same
``consistency'' criteria that are applied to motor vehicle waiver
requests. Pursuant to CAA section 209(b)(1)(C), the Administrator shall
not grant California a motor vehicle waiver if he finds that California
``standards and accompanying enforcement procedures are not consistent
with section 202(a)'' of the CAA. Previous decisions granting waivers
and authorizations have noted that state standards and enforcement
procedures are inconsistent with CAA 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.\16\ When considering
whether to grant authorizations for accompanying enforcement procedures
tied to standards (such as record keeping and labeling requirements)
for which an authorization has already been granted, EPA has evaluated:
(1) Whether the enforcement procedures are so lax that they threaten
the validity of California's determination that its standards are as
protective of public health and welfare as applicable Federal
standards, and (2) whether the Federal and California enforcement
procedures are consistent.\17\
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\15\ 59 FR at 36982-83.
\16\ Id. See also 78 FR 58090, 58092 (Sept. 20, 2013).
\17\ See Motor & Equipment Manufacturers Association v.
Environmental Protection Agency (MEMA I), 627 F.2d 1095, 1112 (D.C.
Cir. 1979). California certification test procedures need not be
identical to the Federal test procedures to be ``consistent.''
California procedures would be inconsistent, however, if
manufacturers would be unable to meet both the state and Federal
test requirements with the same test vehicle in the course of the
same test. See, e.g., 43 FR 32182, (July 25, 1978).
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B. Burden of Proof
In MEMA the Court stated that the Administrator's role in a CAA
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.'' \18\ The court in MEMA I considered the standard of proof
under CAA section 209 for the two findings related to granting a waiver
for an ``accompanying enforcement procedure'' (as opposed to the
standards themselves): (1) Protectiveness in the aggregate and (2)
consistency with section 202(a) findings. The Court instructed that
``the standard of proof must take account of the nature of the risk of
error involved in any given decision, and it therefore varies with the
finding involved. We need not decide how this standard operates in
every waiver decision.'' \19\ The Court upheld the Administrator's
position that, to deny a waiver, there must be `clear and compelling
evidence' to show that proposed procedures undermine the protectiveness
of California's standards.\20\ 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.\21\ 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.
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\18\ MEMA I, 627 F.2d at 1122.
\19\ Id.
\20\ Id.
\21\ Id.
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Although MEMA I did not explicitly consider the standard of proof
under CAA section 209 concerning a waiver request for ``standards,'' as
compared to accompanying enforcement procedures, there is nothing in
the opinion to
[[Page 24413]]
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.'' \22\ Opponents of the waiver or
authorization bear the burden of showing that the criteria for a denial
of California's waiver or authorization request have been met. As found
in MEMA I, this obligation rests firmly with opponents of the waiver or
authorization in a CAA section 209 proceeding:
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\22\ 80 FR 76468, 76471 (December 9, 2015).
The language of the statute and its legislative history indicate
that California's regulations, and California's determinations that
they 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.\23\
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\23\ Id. 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 or authorization 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.' ''
\24\ Therefore, the Administrator's burden is to act ``reasonably.''
\25\
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\24\ Id. at 1126.
\25\ Id.
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C. Deference to California
In previous waiver and authorization decisions, EPA has recognized
that the intent of Congress in creating a limited review based on
specifically listed criteria was to ensure that the Federal government
did not second-guess state policy choices. As the Agency explained in
one prior waiver decision: ``It is worth noting . . . I would feel
constrained to approve a California approach to the problem which I
might also feel unable to adopt at the federal level in my own capacity
as a regulator . . . Since a balancing of 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.'' \26\ Similarly, EPA has stated
that the text, structure, and history of the California waiver
provision clearly indicate both a Congressional intent and appropriate
EPA practice of leaving the decision on ``ambiguous and controversial
matters of public policy'' to California's judgment.\27\ This
interpretation is supported by relevant discussion in the House
Committee Report for the 1977 Amendments to the CAA. Congress had the
opportunity through the 1977 Amendments to restrict the preexisting
waiver provision but elected instead to expand California's flexibility
to adopt a complete program of motor vehicle emission controls. The
report explains that the amendment is intended to ratify and strengthen
the preexisting California waiver provision and to affirm the
underlying intent of that provision, that is, to afford California the
broadest possible discretion in selecting the best means to protect the
health of its citizens and the public welfare.\28\
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\26\ See, ``California State Motor Vehicle Pollution Control
Standards; Waiver of Federal Preemption,'' 40 FR 23102, 23103 (May
28, 1975).
\27\ Id. at 23103-04.
\28\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-02 (1977)).
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D. EPA's Administrative Process in Consideration of California's
Request
On August 16, 2021, EPA issued a notice for comment regarding
CARB's 2016 LSI Fleet Amendments. The notice requested the public
provide EPA with comment on issues relevant to EPA's consideration of
the accompanying enforcement procedures established within the 2016 LSI
Fleet Amendments, specifically whether California's 2016 LSI Fleet
Amendments: (a) undermine California's previous determination that its
standards, in the aggregate, are at least as protective of public
health and welfare as comparable Federal standards; (b) affect the
consistency of California's requirements with CAA section 209; or (c)
raise any other new issues relating to the three authorization criteria
affecting EPA's previous waiver or authorization determinations.\29\
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\29\ 86 FR 45724 (Aug. 16, 2021).
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EPA did not receive a request for a public hearing. As a
consequence, EPA did not hold a public hearing on this matter. EPA did
receive one comment, from the Outdoor Power Equipment Institute (OPEI),
which asked EPA to deny California's authorization request and to
revise the Agency's 1994 rule implementing CAA section 209(e) to
prevent California from both adopting and enforcing its state
regulations until after EPA has waived preemption under CAA section
209. The commenter requested that EPA deny California's request because
it believes the State is enforcing its nonroad emissions regulations
prior to an EPA authorization. OPEI states that California's position
is inconsistent with the due process protections intended under CAA
section 209, including safeguards for the public such as California's
requiring a waiver or authorization to be granted in order to enforce
the state's emission standards. In addition to denying California this
authorization, OPEI requested EPA: (1) Revisit its 1994 rule and change
its interpretation to bar California from adopting and enforcing its
regulations prior to EPA issuing a waiver or authorization; (2) clarify
adoption dates, implementation dates and lead times, and enforcement
terms; and (3) establish that the effective dates and lead times for
CARB rules requiring an EPA waiver or authorization must consider the
timing of the waiver submission and approval process.
III. Discussion
Our analysis of the 2008 LSI Amendments in the context of the full
authorization criteria is set forth below.
A. California's Protectiveness Determination
CAA section 209(e)(2)(A)(i) of the CAA instructs that EPA cannot
grant an authorization if the Agency finds that California was
arbitrary and capricious in its determination that its amendments are,
in the aggregate, at least as protective of public health and welfare
as applicable Federal standards. In adopting the 2016 LSI Fleet
Amendments, CARB's Board approved Resolution 16-10, in which it
expressly declared, `` `the Board hereby determines, in accordance with
the CAA, section 209(e)(2), that the amendments adopted herein do not
undermine the Board's previous determination that the regulation's
emission standards, other emission related requirements, and associated
enforcement procedures are, in the aggregate, at least as protective of
the public health and welfare as applicable
[[Page 24414]]
federal standards.' '' \30\ CARB further stated that the 2016 LSI Fleet
Amendments ``do not reduce the stringency of the FAEL standards
established by the initial LSI Fleet Requirements but will instead
enable CARB to more effectively enforce the LSI Fleet Requirements.''
\31\ CARB also pointed out that there are no Federal standards to
regulate engines that have been placed into service, such as
regulations applicable to fleet operators, under the CAA and,
therefore, there is no question that California's standards are at
least as protective as Federal standards.
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\30\ CARB, Resolution 16-10 (quoted in Authorization Support
Document, at 7-8).
\31\ Id. at 8.
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EPA requested but did not receive any comment on whether the 2016
LSI Fleet Amendment undermine California's previous protectiveness
determination. We cannot find that California's 2016 LSI Fleet
Amendments undermine California's previous determination that its
standards and accompanying enforcement procedures, in the aggregate,
are at least as protective of public health and welfare as applicable
Federal standards. Thus, we cannot deny CARB's request for
authorization of its amendments based on this criterion.
B. Consistency With CAA Section 209
Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot
grant an authorization if California's standards and enforcement
procedures are not consistent with ``this section.'' The 1994 rule sets
forth, among other things, regulations providing the criteria, as found
in section 209(e)(2), which EPA must consider before granting any
California authorization request for new nonroad engine or vehicle
emission standards. EPA has historically interpreted the section
209(e)(2)(iii) ``consistency'' inquiry to require, at minimum, that
California standards and enforcement procedures be consistent with
section 209(a), section 209(e)(1), and section 209(b)(1)(C) (as EPA has
interpreted that subsection in the context of section 209(b) motor
vehicle waivers).\32\ EPA has interpreted this last subsection in the
context of motor vehicle waivers. Thus, this can be viewed as a three-
pronged test as evaluated below.
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\32\ 59 FR at 36982-83.
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1. Consistency With CAA Section 209(a)
To be consistent with CAA section 209(a), California's 2016 LSI
Amendments must not apply to new motor vehicles or new motor vehicle
engines. California's 2016 LSI Fleet Amendments expressly apply only to
nonroad engines and do not apply to engines used in motor vehicles as
defined by CAA section 216(2). We did not receive any comments on
California's consistency with CAA section 209(a). Therefore, EPA cannot
deny California's request on the basis that California's 2016 LSI Fleet
Amendments are not consistent with CAA section 209(a).
2. Consistency With CAA Section 209(e)(1)
To be consistent with CAA section 209(e)(1), California's 2016 LSI
Fleet Amendments must not affect new farm or construction equipment or
vehicles that are below 175 horsepower, or new locomotives or new
engines used in locomotives. CARB notes that its 2016 LSI Fleet
Amendments do not affect such permanently preempted vehicles or
engines. EPA did not receive any comments regarding California's
consistency with section 209(e)(1). Therefore, EPA cannot deny
California's request on the basis that California's 2016 LSI Fleet
Amendments are not consistent with section 209(e)(1).
3. Consistency With CAA Section 209(b)(1)(C)
The requirement that California's standards be consistent with CAA
section 209(b)(1)(C) effectively requires consistency with section
202(a). EPA has interpreted consistency with section 202(a) using a
two-pronged test: (1) Whether there is sufficient lead time to permit
the development of technology necessary to meet the standards and other
requirements, giving appropriate consideration to the cost of
compliance in the time frame provided, and (2) whether the California
and Federal test procedures are sufficiently compatible to permit
manufacturers to meet both the state and Federal test requirements with
one test vehicle or engine.\33\ The scope of EPA's review of whether
California's action is consistent with CAA section 202(a) is narrow.
The determination is limited to whether those opposed to the
authorization have met their burden of establishing that California's
standards are technologically infeasible, or that California's test
procedures impose requirements inconsistent with the Federal test
procedures.\34\
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\33\ See 61 FR 53371, 53372 (Oct. 11, 1996).
\34\ MEMA I, 627, F.2d at 1126.
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a. Technological Feasibility
Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\35\ CAA section 202(a)(2)
states, in part, that any regulation promulgated under its authority
``shall take effect after such period as the Administrator finds
necessary to permit the development and application of the requisite
technology, giving appropriate consideration to the cost of compliance
within such period.'' Section 202(a) thus requires the Administrator to
first determine whether adequate technology already exists; or if it
does not, whether there is adequate time to develop and apply the
technology before the standards go into effect. The latter scenario
also requires the Administrator to decide whether the cost of
developing and applying the technology within that time is feasible.
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\35\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
---------------------------------------------------------------------------
The 2016 LSI Fleet Amendments include reporting requirements (e.g.,
initial and annual reports, equipment transfer and sales reports, and
an extension of existing reporting requirements for fleet operators
subject to fleet average emission limits). The 2016 LSI Fleet
Amendments also include new labeling requirements wherein, based on
operator provided information, CARB will issue the operators a unique
EIN for each item of equipment reported and become the basis of a
manufacturer's equipment labels with a number of associated
requirements. EPA did not receive any comments suggesting that CARB's
accompanying enforcement procedures are technologically infeasible.
Consequently, based on the record, EPA cannot deny California
authorization of its 2016 LSI Fleet Amendments based on technological
infeasibility.
b. Consistency With Federal Test Procedures
California's 2016 LSI Amendments do not alter the testing required
under the previously granted LSI Fleet authorization. California states
in its authorization support document, ``[t]he 2016 LSI Fleet
Amendments also do not raise any issue regarding incompatibility
between California and Federal test procedures because EPA has no
comparable requirements.\36\ We did not receive any comment regarding
inconsistency with Federal test procedures that would provide EPA a
basis to deny this authorization. Consequently, based on the record,
EPA cannot deny California an authorization on the basis of
inconsistency with Federal test procedures.
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\36\ Authorization Support Document, at 9.
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[[Page 24415]]
C. Other Issues Affecting EPA's Evaluation of CAA Section 209(e)
Criteria
EPA has received comment outside the scope of the three
authorization criteria in section 209(e)(1) of the CAA. A summary of
OPEI's comment is set forth above. EPA does not believe OPEI has
provided comments directly related to the applicable criteria EPA may
consider when reviewing a request from California for a waiver or
authorization. OPEI has not met its burden of proof to demonstrate that
the basis for denying an authorization under section 209(e)(1) has been
met.
In previous decisions on waivers and authorizations, EPA has stated
that Congress intended EPA's review of California's decision-making to
be narrow. This has led EPA to reject 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 air quality not
commensurate with its cost 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.\37\
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\37\ 78 FR 2111, 2115 (Jan. 9, 2013). See also 36 FR 17458 (Aug.
31, 1971). Note that the more stringent standard expressed here, in
1971, was superseded by the 1977 Amendments to CAA 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.
EPA has noted that the statute lists three specific grounds for
rejecting an authorization request.\38\ This has led EPA to reject
arguments that are outside the scope of the three statutory criteria
when considering whether to grant or deny a waiver request.\39\
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\38\ Id.
\39\ 87 FR 14342 (March 14, 2022).
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EPA believes OPEI's challenge to California's exercise of
California's enforcement procedures is misplaced in this request for an
authorization. Consideration of a request for authorization is limited
to the criteria outlined in CAA section 209(e)(2)(A), i.e., whether:
(1) California's determination is arbitrary and capricious, (2)
California does not need such standards to meet compelling and
extraordinary conditions,\40\ or (3) California standards and
accompanying enforcement procedures are not consistent with section 209
of the CAA. OPEI does not argue that the 2016 LSI Fleet Amendments and
its accompanying enforcement procedures affect EPA's prior
authorization decision or alters California's previous grant of an EPA
authorization. An evaluation of the issues related to whether
California is improperly enforcing its regulations before a waiver or
authorization is issued by EPA is not among the criteria listed under
CAA section 209(e)(1). EPA may only deny an authorization based on the
criteria in CAA section 209(e)(1) and any issues raised regarding the
improper enforcement by California of its regulations prior to
receiving a waiver or authorization is not one of those criteria.
Therefore, given OPEI does not raise new issues affecting EPA's
evaluation of CAA section 209(e)(1) criteria, and the issues raised by
OPEI in its comments may not be used as a basis of denying California
this authorization.
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\40\ As noted above, EPA's review of waiver requests for
accompanying enforcement procedures does not include a review of the
second waiver prong. In any event, no adverse comment was submitted
to suggest CARB's regulations did not meet this criterion and EPA
cannot deny the waiver request on this basis.
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Similarly, OPEI's comments seeking revision of EPA's authorization
regulations are misplaced. EPA did not reopen those regulations in this
proceeding, and therefore those comments are beyond the scope of this
action.
EPA notes, without reopening our regulations, that the regulations
implementing CAA section 209(e)(2) are at 40 CFR part 1074, subpart
B.\41\ We also note that the ``lead time'' associated with the
evaluation of California's regulations under CAA section
209(e)(2)(A)(iii) is measured from when California adopts its
regulations.\42\ Once EPA authorizes CARB's authorization request,
which includes an assessment of CAA section 209(e)(2)(A)(iii), then
CARB is no longer subject to the preemption in CAA section 209 and may
enforce its regulations under its state law authorities.
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\41\ 40 CFR 1074.101(a) provides that California must request
authorization from the Administrator of EPA to enforce its adopted
standards. See also 95 FR 3699 (July 20, 1994).
\42\ 59 FR 3969, 36981-36983 (July 20, 1994).
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IV. Decision
After evaluating California's 2016 LSI Fleet Amendments, CARB's
submissions, and the lack of any relevant adverse comment, EPA is
granting an authorization to California for its 2016 LSI Fleet
Amendments.
V. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the United States Court of Appeals for the
District of Columbia Circuit: (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, but ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' For locally or regionally applicable final actions,
the CAA reserves to the EPA complete discretion whether to invoke the
exception in (ii).
To the extent a court finds this final action to be locally or
regionally applicable, the Administrator is exercising the complete
discretion afforded to him under the CAA to make and publish a finding
that this action is based on a determination of ``nationwide scope or
effect'' within the meaning of CAA section 307(b)(1) for several
reasons.\43\ This final action grants an authorization for amendments
to California's LSI Fleet regulations that were previously authorized
by EPA. As such, this final action will affect fleet operators located
within and outside California that are subject to the reporting and
labeling requirements in those regulations while operating their
equipment within California.
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\43\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of Agency resources.
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Furthermore, the LSI Fleet regulations, and the amendments to those
regulations that are the subject of today's action, the 2016 LSI Fleet
Amendments, are part of California's nonroad emissions program that,
together with its on-highway emissions program, are regulatory programs
that EPA may waive under CAA section 209. As required by statute, in
evaluating the authorization criteria in this action, EPA considers not
only the 2016 LSI Fleet Amendments in isolation, but in the context of
the entire California program. See CAA section 209(e)(2)(A) (requiring
that the protectiveness finding be made for California's standards ``in
the aggregate''). Moreover, EPA generally applies a consistent
statutory interpretation and analytical framework
[[Page 24416]]
in evaluating and deciding various authorization and waiver requests
under CAA section 209. EPA also relies on the extensive body of D.C.
Circuit case law developed by that court since 1979 as it has reviewed
and decided judicial challenges to these actions. As such, judicial
review of any challenge to this action in the D.C. Circuit will
centralize review of national issues in that court and advance other
Congressional principles underlying this CAA provision of avoiding
piecemeal litigation, furthering judicial economy, and eliminating the
risk of inconsistent judgments.
For these reasons, the Administrator is exercising the complete
discretion afforded to him by the CAA and hereby finds that this final
action is based on a determination of nationwide scope or effect for
purposes of CAA section 307(b)(1) and is hereby publishing that finding
in the Federal Register. Under section 307(b)(1) of the CAA, petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the District of Columbia Circuit by June 20, 2023.
VI. 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).
Michael S. Regan,
Administrator.
[FR Doc. 2023-08296 Filed 4-19-23; 8:45 am]
BILLING CODE 6560-50-P
