[Federal Register Volume 75, Number 35 (Tuesday, February 23, 2010)]
[Notices]
[Pages 8056-8061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3237]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9114-1]


California State Nonroad Engine Pollution Control Standards; 
California New Nonroad Compression Ignition Engines; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision Granting Authorization of California's New 
Nonroad Compression Ignition Engine Emission Standards

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SUMMARY: The Environmental Protection Agency (EPA) today, pursuant to 
section 209(e) of the Clean Air Act (Act), 42 U.S.C. 7543(e), is 
granting California its request for an authorization of its emission 
standards and accompanying test procedures for new nonroad compression 
ignition (CI) engines. EPA is also confirming that one sub-set of 
California's amended regulations does fall within-the-scope of an 
authorization that EPA previously granted.

ADDRESSES: Materials relevant to this decision are contained in Docket 
No. EPA-HQ-OAR-2008-0670. The docket is located at The Air Docket, Room 
3334, 1301 Constitution Avenue, NW., Washington, DC 20460, and may be 
viewed between 8 a.m. and 5:30 p.m., Monday through Friday. The 
telephone is (202) 566-1742. A reasonable fee may be charged by EPA for 
copying docket material.
    Additionally, an electronic version of the public docket is 
available through the Federal Government's electronic public docket and 
comment system. You may access EPA dockets at http://www.regulations.gov. After opening the http://www.regulations.gov Web 
site, enter EPA-HQ-OAR-2008-0670 in ``Search Documents'' to view 
documents in the record of CARB's nonroad compression ignition 
authorization request. 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.

FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Compliance and 
Innovative Strategies Division, United States Environmental Protection 
Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. 
Telephone: (202) 343-9949. E-mail Address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

    By this decision, issued pursuant to section 209(e) of the Clean 
Air Act (the ``Act''), 42 U.S.C. 7543(e), the Environmental Protection 
Agency (``EPA'') has determined that the California Air Resources 
Board's (``CARB's'') regulations and amendments regarding new nonroad 
compression ignition (``CI'') engine emission standards and testing 
procedures, that were adopted in 2000 and 2004-05, warrant EPA's 
authorization. CARB's regulations and amendments meet the criteria for 
such an authorization as outlined in section 209(e)(2) of the Act. CARB 
has requested that EPA find that its nonroad CI regulations and 
amendments fall within-the-scope of previously granted authorizations 
or, in the alternative, that EPA adopt and apply a new ``harmonization 
construct'' when California's emission standards harmonize with federal 
emission standards. CARB's regulations and amendments affect three 
power categories of nonroad CI engines as expressed in kilowatts (kW): 
those less than 19 kW, those greater than 19 kW but less than 130 kW, 
and those greater than 130 kW. EPA has previously granted 
authorizations for California's Small Off-Road Engine less than 19 kW 
(``SORE'') regulations.\1\ Subsequently, EPA confirmed that CARB's SORE 
amendments were within-the-scope of that prior authorization.\2\ EPA 
also previously granted an authorization for California's new heavy-
duty off-road diesel-cycle engines greater than 130 kW.\3\ EPA 
subsequently confirmed that a later CARB amendment to those standards 
was within-the-scope of that prior authorization.\4\ To summarize, the 
smallest and largest categories of engines at issue here are the 
subjects of prior EPA authorizations and within-the-scope 
determinations, while the middle category of engines presents an 
entirely new size category for EPA to consider.
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    \1\ 60 FR 37440 (July 20, 1995).
    \2\ 68 FR 69763 (November 20, 2000).
    \3\ 60 FR 48981 (September 21, 1995).
    \4\ 69 FR 38958 (June 29, 2004).

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[[Page 8057]]

    In a letter dated July 18, 2008,\5\ CARB requested that EPA confirm 
that its amendments to the regulations affecting the three nonroad CI 
engine categories fall within-the-scope of the previously granted 
authorizations for the less than 19 kW and greater than 130 kW 
categories. CARB's amendments to the smallest category of engines 
(those less than 19kW) that were completed as part of its 2000 
Rulemaking, did not raise the stringency of those standards and EPA is 
confirming today that they are within-the-scope of its previous 
authorization. However, EPA has also found that this authorization 
request raises new issues with respect to each category that requires 
EPA to conduct a full authorization inquiry. For the smallest category, 
while CARB's amendments affecting this category in the 2000 Rulemaking 
are within-the-scope, increases to those standards' stringency in the 
2004-05 Rulemaking raise new issues. For the middle category of nonroad 
CI engines (those engines between 19 kW and 130 kW), those standards 
present new issues for EPA's consideration because CARB's 2000 
Rulemaking created the category and the 2004-05 Rulemaking increased 
their stringency. For the largest category of engines, new issues are 
presented due to increases in stringency as a result of both the 2000 
and 2004-05 Rulemakings. These new issues warrant a full EPA 
authorization evaluation for all three categories. Upon completion of 
that evaluation, EPA is authorizing CARB to enforce these standards and 
procedures.
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    \5\ EPA-HQ-OAR-2008-0670-0002. CARB originally requested a 
within-the-scope authorization for its off-road CI engine 
regulations that it had adopted in 2000, on July 16, 2004. CARB has 
since asked that its July 18, 2008 request replace that previous 
request and that EPA consider the 2000 regulations and amendments 
together with the 2004-05 regulations and amendments as one within-
the-scope authorization request.
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II. Background

A. Clean Air Act Nonroad Engine 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. Section 
209(e)(2) of the Act requires the Administrator to grant California 
authorization to enforce its own standards for new nonroad engines 
or vehicles which are not listed under section 209(e)(1), subject to 
certain restrictions. On July 20, 1994, EPA promulgated a rule that 
sets forth, among other things, 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.\6\
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    \6\ 59 FR 36969 (July 20, 1994). These regulations were 
subsequently moved to 40 CFR part 1074 and modified slightly. See 73 
FR 59379 (October 8, 2008).

    As stated in the preamble to the section 209(e) rule, EPA has 
historically interpreted the section 209(e)(2)(iii) ``consistency'' 
inquiry to require, at minimum, that California standards and 
enforcement procedures be consistent with section 209(a), section 
209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted that 
subsection in the context of section 209(b) motor vehicle waivers).\7\
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    \7\ See 59 FR 36969 (July 20, 1994).
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    In order to be consistent with section 209(a), California's nonroad 
standards and enforcement procedures must not apply to new motor 
vehicles or new motor vehicle engines. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests. Pursuant to section 209(b)(1)(C), the 
Administrator shall not grant California a motor vehicle waiver if she 
finds that California ``standards and accompanying enforcement 
procedures are not consistent with section 202(a)'' of the Act. 
Previous decisions granting waivers and authorizations have noted that 
state standards are inconsistent with section 202(a) if: (1) There is 
inadequate lead time to permit the development of the necessary 
technology giving appropriate consideration to the cost of compliance 
within that time, or (2) the federal and state testing procedures 
impose inconsistent certification requirements.

B. California's Authorization Request

    In its July 18, 2008 letter to EPA, CARB notified EPA of additional 
regulations and amendments to its nonroad CI emissions program and 
asked EPA to confirm that these regulations and amendments are within-
the-scope of previous authorizations. EPA can make such a confirmation 
if certain conditions are present. Specifically, if California acts to 
amend a previously authorized standard or accompanying enforcement 
procedure, the amendment may be considered as falling within-the-scope 
of a previously granted authorization provided that it: (1) Does not 
undermine California's determination that its standards, in the 
aggregate, are as protective of public health and welfare as applicable 
Federal standards, (2) does not affect consistency with section 209 of 
the Act, and (3) raises no new issues affecting EPA's previous 
authorization.\8\
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    \8\ Decision Document accompanying waiver determination 
announced in 51 FR 12391 (April 10, 1986).
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    California's request, as noted above, concerns its emissions 
program for nonroad CI engines which are inclusively categorized by 
three engine power classes. Since EPA's previous authorizations 
regarding California's nonroad CI program, California has amended its 
standards for two of the classes and established and amended standards 
for the third class. These new standards and the amendments for each 
class were adopted over the course of two distinct CARB rulemakings: 
one in 2000 (hereinafter the ``2000 Rulemaking'') and another in 2004-
05 (hereinafter the ``2004-05 Rulemaking''). The 2000 Rulemaking 
adopted by CARB generally harmonized California's emission standards 
and test procedures to the federal standards for the same nonroad CI 
engines that were promulgated in 1998 (Tier 1 through Tier 3). 
Similarly, the 2004-05 Rulemaking generally harmonized California's 
Tier 4 standards to the federal Tier 4 standards for these same nonroad 
CI engines that EPA adopted in 2004. All of CARB's standards for 
nonroad CI engines appear in Title 13 of the California Code of 
Regulations (CCR) sections 2420-2427. The federal emission standards 
for nonroad CI engines appear in 40 CFR parts 89 and 1039.
    The first category of engines includes nonroad CI engines under 19 
kW. The 2000 Rulemaking merely re-codified California's previously 
promulgated standards for this engine category, which EPA had 
previously found to be within-the-scope of its SORE authorization.\9\ 
These standards were later amended in the 2004-05 Rulemaking to 
increase the stringency for this category of engines by promulgating 
Tier 4 standards, starting in the 2008 model year. These numerical 
standards are identical to current Federal standards: California's 
Tiers 1, 2, and 4 align to EPA's Tiers 1, 2, and 4.
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    \9\ 65 FR 69767 (November 20, 2000).
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    The second category of engines includes those nonroad CI engines 
greater than 19 kW but less than 130 kW. This category of standards was 
first established by the 2000 Rulemaking and was subsequently amended 
in the

[[Page 8058]]

2004-05 Rulemaking. The standards began with model year 2000, requiring 
the engines to meet Tier 1 standards; Tier 2 standards are required for 
model years 2003 and 2004; and Tier 3 standards are required for model 
years 2007 and 2008. All of these standards for this engine size 
category are numerically identical to federal standards, with 
California's Tiers 1 through 3 matching EPA's Tiers 1 through 3.\10\ 
Finally, California's Tier 4 standards are required of all model year 
engines including and later than the 2009 model year. California's Tier 
4 standards largely align to EPA's Tier 4 standards for this category 
with the slight difference that California maintains separate NMHC and 
NOX standards while for some engines EPA has a combined 
NMHC+NOX standard.
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    \10\ Id.
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    The third category of engines includes those nonroad CI engines 
greater than 130 kW. This category of standards was amended, including 
increases in numerical stringency, in both the 2000 Rulemaking and 
2004-05 Rulemaking. As with the above-described categories, the 
standards for this category align with federal standards: Tier 2 
standards are required for model years 2001-2006, Tier 3 standards are 
required for model year 2006-2010, and Tier 4 standards are required 
for model years beginning with and beyond 2011. All tiers of California 
standards numerically match the corresponding federal standards for the 
same engine size.\11\
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    \11\ Id.
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    At the heart of both CARB's 2000 and 2004-05 Rulemakings were 
adoption of the above-noted emission standards. In each proceeding, 
though, additional amendments to California's regulations were made, 
largely to harmonize with Federal compliance and enforcement 
procedures. In its 2000 Rulemaking, CARB adopted requirements mirroring 
federal requirements for maintenance intervals, recordkeeping, 
warranties, test procedures, certification test fuel, and engine useful 
life.\12\ At that time, CARB also provided for implementation 
flexibility for post-manufacture marinizers and optional reduced-
emission standard labeling requirements for ``Blue Sky Series'' CI 
engines. In its 2004-05 Rulemaking, CARB, in addition to its adoption 
of emission standards, continued to harmonize its compliance and 
enforcement procedures to the corresponding federal compliance and 
enforcement procedures. Specifically, CARB adopted federal 
modifications that EPA had adopted in our Final Rule for Control of 
Emissions of Air Pollution From Nonroad Diesel Engines and Fuel and 
EPA's Final Rule for Test Procedures for Testing Highway and Nonroad 
Engines Omnibus Technical Amendments.\13\ CARB adopted federal 
procedures for not-to-exceed limits, incentives for early introduction 
of engines with advanced after-treatment, new test procedures and test 
cycles, and enhanced in-use compliance provisions and flexibilities. 
California's 2004-05 Rulemaking does include some additional 
requirements ``that are intended to provide additional safeguards for a 
more identifiable and enforceable deployment of flexibility allowances 
in California.'' \14\ Those supplemental requirements include 
additional labeling content requirements beyond that required by the 
federal program, a required CARB Executive Order for engines certified 
under the transitional flexibility program, and the maintenance of 
California's own in-use warranty/recall program.
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    \12\ See CARB's Request at 10; EPA-HQ-OAR-2008-0670-0002; see 
also CARB's Exhibit 4, EPA-HQ-OAR-2008-0670-0012 and EPA-HQ-OAR-
2008-0670-0013, and CARB's Exhibit 5, EPA-HQ-OAR-2008-0670-0014.
    \13\ 69 FR 38958 (June 29, 2004), 70 FR 40421 (July 13, 2005).
    \14\ See CARB's Request at 14, EPA-HQ-OAR-2008-0670-0002; see 
also CARB Exhibit 12, EPA-HQ-OAR-2008-0670-0023, and CARB Exhibit 
13, EPA-HQ-OAR-2008-0670-0025.
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C. EPA's Consideration of CARB's Request

    Because EPA believed it possible that CARB's amendments did in fact 
raise ``new issues'' as they impose new standards for the category of 
nonroad CI engines between 19 kW and 130 kW and raise the stringency of 
standards for the smaller and larger categories of nonroad CI engines, 
EPA offered the opportunity for a public hearing and requested public 
comments on these new standards and testing procedures.\15\ EPA 
received no request for a public hearing, nor was any comment received 
on the CARB standards and procedures at issue. Therefore, EPA has made 
this determination based on the information submitted by CARB in its 
request.
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    \15\ 73 FR 58583 (October 7, 2008).
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D. Standard and Burden of Proof in Clean Air Act Section 209 
Proceedings

    In Motor and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095 (D.C. Cir. 
1979) (hereinafter ``MEMA I''), the United States Court of Appeals 
stated that the Administrator's role in a section 209 proceeding is to:

    [C]onsider 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 * * * have shown that the factual circumstances 
exist in which Congress intended a denial * * *.\16\

    \16\ Motor and Equip. Mfrs. Assoc. v. EPA (MEMA I), 627 F.2d 
1095, 1122 (D.C. Cir. 1979).
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    The court in MEMA I considered the standards of proof pursuant to 
section 209 for the two findings necessary to grant a waiver for an 
``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.'' 
\17\
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    \17\ Id.
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    The court upheld the Administrator's position that, to deny a 
waiver, ``there must be `clear and compelling evidence' to show that 
proposed procedures undermine the protectiveness of California's 
standards.'' \18\ 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.'' \19\
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    \18\ Id.
    \19\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all section 209 
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 section 209 standards of proof concerning an authorization 
request for nonroad emission standards and testing procedures, there is 
nothing in the opinion that suggests the court's analysis would not 
apply with equal force in such determinations. EPA's past section 209 
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.'' \20\
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    \20\ See, e.g., 40 FR 23, 102-103 (May 28, 1975).

    Furthermore, Congress intended that EPA's review of California's 
decision-making be narrow in scope.\21\ This has

[[Page 8059]]

led EPA in the past to reject arguments that are not specified within 
the statute as grounds for denying a waiver or authorization:
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    \21\ See, e.g., MEMA I, 627 F.2d at 1110-11, citing H.R. Rep. 
No. 294, 95th Cong., 1st Sess. 301-02 (1977).

    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.\22\
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    \22\ 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's 
standards must be, in the aggregate, at least as protective of 
public health and welfare as applicable Federal standards.

    Thus, EPA's consideration of all the evidence submitted concerning 
this authorization decision is circumscribed by its relevance to those 
questions which the Administrator is directed to consider by section 
209.
    Finally, opponents of the waiver bear the burden of showing whether 
California's waiver request is inconsistent with section 202(a). As 
found in MEMA I, this obligation rests firmly with opponents in a 
section 209 proceeding; the court held that:

    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\ MEMA I at 1121.

    The Administrator's burden, on the other hand, is to determine that 
she has made a reasonable and fair evaluation of the information in the 
record when coming to the waiver decision. As the court in MEMA I 
stated, ``[h]ere, too, if the Administrator ignores evidence 
demonstrating that the waiver should not be granted, or if [s]he seeks 
to overcome that evidence with unsupported assertions of [her] own, 
[s]he runs the risk of having [her] 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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III. Discussion

A. California's Protectiveness Determination

    Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that CARB was arbitrary and 
capricious in its determination that its standards are, in the 
aggregate, at least as protective of public health and welfare as 
applicable Federal standards. CARB's Board made a protectiveness 
determination in Resolution 00-3, dated January 27, 2000, finding that 
sections 2111, 2112, 2137, 2139, 2140, 2141, 2400, 2401, 2403, 2420-27 
and Appendix A to article 2.1, chapter 2, division 3 of Title 13, 
California Code of Regulations, as amended, (the 2000 Rulemaking) will 
not cause the California emission standards, in the aggregate, to be 
less protective of public health and welfare than applicable Federal 
standards.\26\ A similar protectiveness determination was made in 
Resolution 04-43, dated October 21, 2005, with regard to amended 
sections 2420-2427 and new section 2425.1 and the three amended test 
procedures incorporated by reference therein to Title 13 of the 
California Code of Regulations (the 2004-5 Rulemaking).\27\ CARB's 
protectiveness determinations in both rulemakings were, therefore, 
based on comparisons to the Federal standards which demonstrate that 
CARB's standards and test procedures align with the Federal program.
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    \26\ ``Be It Further Resolved that the Board hereby determines 
that the regulations adopted herein will not cause the California 
emission standards, in the aggregate, to be less protective of 
public health and welfare than applicable federal standards.'' CARB 
Resolution 00-3 at 6 (January 27, 2000), CARB's Exhibit 2, EPA-HQ-
OAR-2008-0004.
    \27\ ``Be It Further Resolved that the Board hereby determines 
that the regulations approved herein will not cause the California 
emission standards, in the aggregate, to be less protective of 
public health and welfare than applicable federal standards.'' CARB 
Resolution 04-43 at 6 (October 21, 2005), CARB's Exhibit 9, EPA-HQ-
OAR-2008-0670-0021.
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    In addition, EPA did not receive any comments stating that CARB's 
nonroad CI requirements are not, in the aggregate, as stringent as 
applicable Federal standards.
    Therefore, based on the record before me, I cannot find that CARB's 
nonroad CI regulations and amendments, as noted, would cause the 
California nonroad emission standards, in the aggregate, to be less 
protective of public health and welfare than applicable Federal 
standards.

B. Need for California Standards To Meet Compelling and Extraordinary 
Conditions

    Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an 
authorization if the agency finds that California ``does not need such 
California standards to meet compelling and extraordinary conditions * 
* *.'' This criterion restricts EPA's inquiry to whether California 
needs its own mobile source pollution program to meet compelling and 
extraordinary conditions, and not whether any given standards are 
necessary to meet such conditions.\28\ As to the need for the 
particular standards that are the subject of this decision, California 
is entrusted with the power to select ``the best means to protect the 
health of its citizens and the public welfare.'' \29\ CARB has 
repeatedly demonstrated the existence of compelling and extraordinary 
conditions in California.\30\
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    \28\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \29\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 301-02 
(1977)(cited in MEMA I, 627 F.2d at 1110).
    \30\ CARB expressed its needs for its own emission control 
program in both of the rulemakings at issue here. (``Be It Further 
Resolved that the Board hereby finds that separate California 
emission standards and test procedures are necessary to meet 
compelling and extraordinary conditions.'' CARB Resolution 00-3 at 6 
(January 27, 2000), CARB's Exhibit 2; CARB Resolution 04-43 at 6 
(October 21, 2005), CARB's Exhibit 9, EPA-HQ-OAR-2008-0670-0021.)
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    EPA has not received any adverse comments to suggest that 
California no longer suffers from serious and unique air pollution 
problems. In its authorization request letter, CARB concluded that 
``there can be no doubt of the continuing existence of compelling and 
extraordinary conditions justifying California's need for its own 
nonroad vehicle and engine emissions control program.'' \31\ EPA has 
repeatedly declined to find fault in California's demonstrations of 
``compelling and extraordinary conditions'' when waiving preemption for 
motor vehicle emission standards and authorizing nonroad emission 
standards.\32\ Moreover, because EPA has

[[Page 8060]]

not received adverse public comment challenging California's need for 
its own mobile source pollution control program or asserting any change 
from California's previous demonstrations, I cannot deny the 
authorization based on a lack of compelling and extraordinary 
conditions.
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    \31\ CARB's Request Letter at 32, EPA-HQ-OAR-2008-0670-0002.
    \32\ See, e.g., 74 FR 3030, 3033 (January 16, 2009); 
``California State Nonroad Engine and Vehicle Pollution Control 
Standards; Decision of the Administrator (Authorization of In-Use 
Emission Standards for Transport Refrigeration Unit Engines),'' EPA-
HQ-OAR-2005-0123-0049, at 19, available at http://www.regulations.gov/search/Regs/home.html#documentDetail?R=090000648082352c (``EPA has agreed with 
CARB, in earlier nonroad engine standards requests, that 
California's continuing extraordinary conditions justify separate 
California programs.''); 71 FR 75536 (December 15, 2006).
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C. Consistency With Section 209 of the Clean Air Act

    Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant 
an authorization if California's standards and enforcement procedures 
are not consistent with section 209. As delineated above in Section 
II.A., EPA has historically evaluated this criterion for consistency 
with sections 209(a), 209(e)(1), and 209(b)(1)(C). First, California's 
nonroad CI engine emission standards are consistent with section 209(a) 
because they do not apply to new motor vehicles or engines. Second, 
California's nonroad CI engine emission standards are consistent with 
section 209(e)(1) because they do not affect new farming or 
construction vehicles or their engines below 175 hp, or new locomotives 
or their engines.\33\ Third, the requirement that California's 
standards be consistent with section 209(b)(1)(C) of the Act 
effectively requires consistency with section 202(a) of the Act.
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    \33\ See CARB's ``Staff Report: Initial Statement of Reasons for 
Rulemaking,'' for a general list of off-road diesel engines that are 
excepted from this regulation (page 25) as well as a specific list 
of preempted applications (Appendix A at page 104). CARB's Exhibit 
11, EPA-HQ-OAR-2008-0670-0028.
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    California standards are inconsistent with section 202(a) of the 
Act if there is inadequate lead time to permit the development of 
technology necessary to meet those requirements, giving appropriate 
consideration to the cost of compliance within that time. California's 
accompanying enforcement procedures would also be inconsistent with 
section 202(a) if the Federal and California test procedures were not 
consistent.
    The scope of EPA's review of whether California's action is 
consistent with section 202(a) is narrow. The determination is limited 
to whether those opposed to the authorization or waiver have met their 
burden of establishing that California's standards are technologically 
infeasible, or that California's test procedures impose requirements 
inconsistent with the Federal test procedure.\34\ EPA did not receive 
any comments suggesting that CARB's standards are inconsistent with 
section 202(a); therefore, I cannot deny California's authorization 
based on the standard of review for consistency with section 209.
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    \34\ MEMA I, 627, F.2d at 1126.
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1. Technological Feasibility
    Congress has stated that the consistency requirement of section 
202(a) relates to technological feasibility.\35\ Section 202(a)(2) 
states, in part, that any regulation promulgated under its authority 
``shall take effect after such period as the Administrator finds 
necessary to permit the development and application of the requisite 
technology, giving appropriate consideration to the cost of compliance 
within such period.'' Section 202(a) thus requires the Administrator to 
first determine whether adequate technology already exists; or if it 
does not, whether there is adequate time to develop and apply the 
technology before the standards go into effect. The latter scenario 
also requires the Administrator to decide whether the cost of 
developing and applying the technology within that time is feasible. 
Previous EPA waivers are in accord with this position.\36\
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    \35\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
    \36\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
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    For example, a previous EPA waiver decision considered California's 
standards and enforcement procedures to be consistent with section 
202(a) because adequate technology existed as well as adequate lead 
time to implement that technology.\37\ Subsequently, Congress has 
stated that, generally, EPA's construction of the waiver provision has 
been consistent with congressional intent.\38\
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    \37\ 41 FR 44209 (October 7, 1976).
    \38\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
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    As CARB notes, all three categories of the nonroad CI regulations 
have been written to align and harmonize California standards with 
Federal standards and testing procedures. Notably, because California's 
standards align to Federal standards, these are the same numerical 
standards that EPA, in the course of its own rulemaking under Clean Air 
Act authority, has already determined to be technologically feasible.
    EPA did not receive any comments suggesting that CARB's standards 
and testing procedures are technologically infeasible. Consequently, 
based on the record before me, I cannot deny California's authorization 
based on technological infeasibility.
2. Consistency of Certification Procedures
    California's standards and accompanying enforcement procedures 
would also be inconsistent with section 202(a) if the California test 
procedures were to impose certification requirements inconsistent with 
the Federal certification requirements. Such inconsistency means that 
manufacturers would be unable to meet both the California and Federal 
testing requirements using the same test vehicle or engine.\39\
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    \39\ See, e.g., 43 FR 32182 (July 25, 1978).
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    CARB makes clear that its nonroad CI certification procedures, for 
all three power categories, align with Federal certification procedures 
so that a manufacturer can use the same test engine to certify for both 
emissions programs.
    EPA received no comments suggesting that CARB's nonroad CI 
requirements pose a testing procedure consistency problem. Therefore, 
based on the record before me, I cannot find that CARB's testing 
procedures are inconsistent with section 202(a). I cannot, then, deny 
CARB's request based on this criterion.

D. Within-the-Scope Authorizations

    CARB suggests in its request letter that since the new requirements 
for two of the categories are amendments to previously authorized 
California standards and that all three categories of regulations align 
California requirements to Federal requirements, this request should be 
found as within-the-scope of previous EPA authorizations. Typically, if 
California acts to amend a previously authorized standard or 
accompanying enforcement procedure, the amendment may be considered 
within-the-scope of a previously granted authorization provided that 
it: (1) Does not undermine California's determination that its 
standards, in the aggregate, are as protective of public health and 
welfare as applicable federal standards, (2) does not affect 
consistency with section 209 of the Act, and (3) raises no new issues 
affecting EPA's previous authorization.\40\
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    \40\ See, e.g., 51 FR 12391 (April 10, 1986) and 65 FR 69673, 
69674 (November 20, 2000). The first within-the-scope determination 
stated that a CARB request made subsequent to an EPA waiver, 
``exists within the meaning and intent of the waiver granted.'' 37 
FR 14831 (July 25, 1972).
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    Only one sub-set of the standards for which CARB requests a within-
the-scope confirmation meets EPA's above-noted third criterion for 
within-the-scope confirmation. Because the smallest category of nonroad 
CI engines were merely re-codified as a result of

[[Page 8061]]

the 2000 Rulemaking, that sub-set of standards from the 2000 rulemaking 
does meet the third criterion for a within-the-scope confirmation. 
Indeed, the mere re-codification of previously authorized standards 
that does not increase numerical stringency does not raise any new 
issues that affect EPA's prior authorization.
    Even though the first two within-the-scope criteria have already 
been established above for all three engine categories, the third 
criterion prevents EPA from considering this entire request as within-
the-scope of EPA's prior authorizations. First, since the middle 
category of engines has not been previously authorized, it very clearly 
presents a ``new issue'' that has not previously been subject to an 
authorization request.\41\ Additionally, CARB increased the stringency 
of its own standards for the smallest category of nonroad CI engines in 
its 2004-05 Rulemaking and for the largest category of nonroad CI 
engines in both its 2000 and 2004-05 Rulemakings. EPA has stated in 
prior waiver and authorization determinations that increases in 
numerical stringency of standards are ``new issues'' for which a full 
waiver or authorization is required.\42\ EPA, therefore, believes it 
appropriate to go beyond an examination of whether the new requirements 
affect the prior consistency with section 202(a) finding and, in this 
context, requires a new analysis of whether the new requirements 
standing on their own are consistent with section 209. As detailed 
already, above in Section III, EPA finds that CARB has demonstrated 
that it meets the requirements for a full section 209(e) authorization 
for all three categories of nonroad CI engines. EPA, therefore, 
believes a full authorization is appropriate for the new middle 
category of standards and the more stringent standards for the smallest 
and largest categories.\43\
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    \41\  See 50 FR 20126 at 20127 (May 14, 1985)(``[B]y extending 
California's standards and test procedures to vehicles not 
previously covered, these amendments do raise significant new issues 
not considered in prior waiver decisions.'')
    \42\ See, e.g., 71 FR 44027 at 44028 (August 3, 2006)(``EPA 
believed it possible that CARB's amendments do in fact raise ``new 
issues'' as they impose new more stringent standards * * *'') and 51 
FR 6308 at 6309 (February 21, 1986)(``[T]hese amendments do raise 
significant new issues not considered in prior waiver decisions. In 
effect, California's amendments establish new standards * * *'').
    \43\ To the extent that the 2000 rulemaking's amendments to the 
smallest category are construed as not within-the-scope of EPA's 
prior authorization, then a full authorization is appropriate and 
granted.
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    As an alternative to the within-the-scope confirmation, California 
proposes that EPA adopt and apply a new ``harmonization construct,'' 
under which EPA would limit its review of California's standards and 
presumptively authorize California to enforce more stringent California 
standards if those standards align with--but do not surpass--EPA's 
Federal emission standards. Although EPA has considered CARB's proposed 
harmonization construct, we did not receive any comment on this 
authorization request, which leaves us with no public input on the 
appropriateness of adopting such a construct. Lacking public input on 
this authorization request, the Agency does not believe it appropriate 
to adopt such a construct at this time, without further consideration. 
While EPA is not adopting this proposed construct at this time, we may 
consider and apply it in future waivers if appropriate.

IV. Decision

    EPA's analysis finds that the criteria for granting a full 
authorization have been met for these regulations and amendments. All 
three engine categories require a full authorization because ``new 
issues'' are presented by new or more stringent standards in each 
category. For the smallest category of engines (those less than 19kW), 
numerical emission standards were raised in CARB's 2004-05 Rulemaking. 
These standards require and have met the criteria for a full 
authorization. CARB's amendments to this category's standards in its 
2000 Rulemaking did not increase the standards' stringency and, thus, 
EPA can confirm that those standards fall within-the-scope of EPA's 
previous authorization for those standards. CARB is newly regulating 
the middle category of engines (those between 19 kW and 130 kW). EPA 
determined that this entire category presents new issues for which it 
must conduct a full authorization evaluation. Upon application of that 
evaluation, EPA has determined that CARB has met the requirements for a 
full authorization. For the largest category of engines (those greater 
than 130 kW), CARB has raised emission standards in both of its 
rulemakings. The increased stringency raised new issues for EPA to 
consider and required EPA to apply a full authorization analysis. Upon 
evaluation, EPA has determined that CARB has met the criteria for a 
full authorization for these standards.
    The Administrator has delegated the authority to grant California a 
section 209(e) authorization to enforce its own emission standards for 
nonroad engines to the Assistant Administrator for Air and Radiation. 
Having given consideration to all the material submitted for this 
record, and other relevant information, I find that I cannot make the 
determinations required for a denial of an authorization pursuant to 
section 209(e) of the Act. Therefore, I grant authorization to the 
State of California with respect to its new nonroad CI engine 
requirements as set forth above.
    My decision will affect not only persons in California but also 
manufacturers outside the State who must comply with California's 
requirements in order to produce engines for sale in California. For 
this reason, I determine and find that this is a final action of 
national applicability for purposes of section 307(b)(1) of the Act.
    Pursuant to section 307(b)(1) of the Act, judicial review of this 
final action may be sought only in the United States Court of Appeals 
for the District of Columbia Circuit. Petitions for review must be 
filed by April 26, 2010. Judicial review of this final action may not 
be obtained in subsequent enforcement proceedings, pursuant to section 
307(b)(2) of the Act.
    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: February 5, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-3237 Filed 2-22-10; 8:45 am]
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