[Federal Register Volume 80, Number 236 (Wednesday, December 9, 2015)]
[Notices]
[Pages 76468-76473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31049]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0533; FRL-9939-91-OAR]


California State Nonroad Engine Pollution Control Standards; 
Large Spark-Ignition (LSI) Engines; New Emission Standards and In-Use 
Fleet Requirements; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision.

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SUMMARY: The Environmental Protection Agency (EPA) is granting the 
California Air Resources Board's (CARB's) request for authorization of 
California's 2008 amendments to its new large spark-ignition nonroad 
engines regulation (2008 LSI Amendments). EPA is also confirming that 
CARB's 2010 amendments to its in-use fleet average emission 
requirements (2010 LSI Fleet Amendments) are within the scope of EPA's 
prior authorization. This decision is issued under the authority of the 
Clean Air Act (``CAA'' or ``Act'').

DATES: Petitions for review must be filed by February 8, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2014-0533. All documents relied upon in making this 
decision, including those submitted to EPA by CARB, are contained in 
the public docket. Publicly available docket materials are available 
either electronically through www.regulations.gov or in hard copy at 
the Air and Radiation Docket in the EPA Headquarters Library, EPA West 
Building, Room 3334, located at 1301 Constitution Avenue NW, 
Washington, DC. The Public Reading Room is open to the public on all 
federal government working days from 8:30 a.m. to 4:30 p.m.; generally, 
it is open Monday through Friday, excluding holidays. The telephone 
number for the Reading Room is (202) 566-1744. The Air and Radiation 
Docket and Information Center's Web site is http://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and 
Radiation Docket is: [email protected], the telephone number is 
(202) 566-1742, and the fax number is (202) 566-9744. An electronic 
version of the

[[Page 76469]]

public docket is available through the federal government's electronic 
public docket and comment system. You may access EPA dockets at http://www.regulations.gov. After opening the www.regulations.gov Web site, 
enter EPA-HQ-OAR-2014-0533 in the ``Enter Keyword or ID'' fill-in box 
to view documents in the record. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information (``CBI'') or other information whose disclosure is 
restricted by statute.
    EPA's Office of Transportation and Air Quality (``OTAQ'') maintains 
a Web page that contains general information on its review of 
California waiver requests. Included on that page are links to prior 
waiver Federal Register notices, some of which are cited in today's 
notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney-Advisor, 
Transportation Climate Division, Office of Transportation and Air 
Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue 
(6405J), NW., Washington, DC 20460. Telephone: (202) 343-9256. Fax: 
(202) 343-2800. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. California's LSI Regulations

    CARB promulgated its first LSI regulations in 1999, applicable to 
new LSI engines (1999 LSI regulations).\1\ The 1999 LSI regulations 
established exhaust emission standards and associated test procedures 
for LSI engines based upon engine displacement. The exhaust emission 
standards applicable to 2002 and subsequent model years (MYs) with 
displacements up to one liter were identical to the emission standards 
applicable to California small off-road engines (SORE) with engines 
greater than or equal to 225 cubic centimeters. CARB subsequently 
adopted more stringent exhaust emission standards for engines greater 
than 225 cubic centimeters.\2\ CARB adopted is initial off-road LSI 
fleet operator regulations on May 25, 2006.\3\ The fleet operator 
regulations are designed to address the hydrocarbon and nitrogen oxide 
emissions from the existing LSI engines operating in California and 
require fleets to meet certain fleet average emission level (FAEL) 
standards.\4\
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    \1\ EPA granted an authorization for these LSI regulations at 71 
FR 29623 (May 15, 2006).
    \2\ EPA granted an authorization for these LSI regulations at 71 
FR 75536 (December 15, 2006).
    \3\ The term ``off-road'' is used interchangeably with 
``nonroad'' within this decision.
    \4\ EPA granted an authorization for these LSI regulations at 77 
FR 20388 (April 12, 2012).
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    By letter dated June 2, 2014, CARB submitted to EPA its request 
pursuant to section 209(e) of the CAA, regarding its 2008 LSI 
Amendments which create two new subcategories of LSI engines: LSI 
engines with an engine displacement less than or equal to 825 cubic 
centimeters (cc) (LSI <= 825 cc), and LSI engines with an engine 
displacement greater than 825 cc but less than or equal to one liter 
(825cc <=1.0 L). The 2008 LSI Amendments establish exhaust emission 
standards for new 2011 and subsequent model year (MY) LSI engines in 
each of these new subcategories and additionally establish more 
stringent exhaust emission standards for 2015 and subsequent MY LSI 
engines with engine displacements 825cc <=1.0 L. The 2008 LSI 
Amendments also establish evaporative emission standards for 2011 and 
subsequent MY LSI engines within the two new subcategories, and the 
amendments provide manufacturers of LSI engines used in vehicles that 
are similar to off-highway recreational vehicles (OHRVs) the option to 
use the OHRV test and certification procedures.\5\
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    \5\ CARB adopted the 2008 LSI Amendments on November 21, 2008 
(see Resolution 08-42 at EPA-HQ-OAR-2014-0533-0008).
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    CARB also submitted its 2010 LSI Fleet Amendments for confirmation 
from EPA that such amendments are within the scope of a previous EPA 
authorization. These amendments are designed to enhance the compliance 
flexibility provisions of the existing LSI Fleet regulation. They amend 
the existing limited hours of use (LHU) provisions to exempt equipment 
that operates no more than 200 hours per year subsequent to January 1, 
2011 from the fleet average emission standard requirements of the LSI 
Fleet regulation. The 2010 LSI Fleet Amendments also extend the 
existing compliance extension period that is available if CARB has not 
verified a retrofit emission control system, or if one is not 
commercially available, from one year to two years and allow for an 
additional two year extension if a retrofit emission control system 
remains unavailable. The 2010 LSI Fleet Amendments also include 
additional provisions that largely clarify existing regulatory 
provisions or provide additional compliance flexibility (e.g. revising 
the definitions of ``baseline inventory,'' ``operator,'' and ``airport 
ground support equipment''; providing an exclusion for certain 
inoperable equipment from the FAEL requirements; and providing a 
clarification of the record keeping requirements and of the FAEL 
definition).\6\
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    \6\ CARB adopted the 2010 LSI Fleet Amendments on December 17, 
2010 (see Resolution 10-48 at EPA-HQ-OAR-2014-0533-0024).
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B. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts any State, or 
political subdivision thereof, from adopting or attempting to enforce 
any standard or other requirement relating to the control of emissions 
for new nonroad engines or vehicles. States are also preempted from 
adopting and enforcing standards and other requirements related to the 
control of emissions from non-new nonroad engines or vehicles. Section 
209(e)(2) requires the Administrator, after notice and opportunity for 
public hearing, to authorize California to enforce such standards and 
other requirements, unless EPA makes one of three findings. In 
addition, other states with attainment plans may adopt and enforce such 
regulations if the standards, and implementation and enforcement 
procedures, are identical to California's standards. On July 20, 1994, 
EPA promulgated a rule that sets forth, among other things, regulations 
providing the criteria, as found in section 209(e)(2), which EPA must 
consider before granting any California authorization request for new 
nonroad engine or vehicle emission standards.\7\ EPA later revised 
these regulations in 1997.\8\ As stated in the preamble to the 1994 
rule, EPA has historically interpreted the section 209(e)(2)(iii)

[[Page 76470]]

``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).\9\
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    \7\ 59 FR 36969 (July 20, 1994).
    \8\ See 62 FR 67733 (December 30, 1997). The applicable 
regulations, now in 40 CFR part 1074, subpart B, Sec.  1074.105, 
provide:
    (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.
    (c) In considering any request from California to authorize the 
state 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.
    \9\ See 59 FR 36969 (July 20, 1994).
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    In order to be consistent with section 209(a), California's nonroad 
standards and enforcement procedures must not apply to new motor 
vehicles or new motor vehicle engines. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests. Pursuant to section 209(b)(1)(C), the 
Administrator shall not grant California a motor vehicle waiver if she 
finds that California ``standards and accompanying enforcement 
procedures are not consistent with section 202(a)'' of the Act. 
Previous decisions granting waivers and authorizations have noted that 
state standards and enforcement procedures are inconsistent with 
section 202(a) if: (1) There is inadequate lead time to permit the 
development of the necessary technology giving appropriate 
consideration to the cost of compliance within that time, or (2) the 
federal and state testing procedures impose inconsistent certification 
requirements.
    In light of the similar language of sections 209(b) and 
209(e)(2)(A), EPA has reviewed California's requests for authorization 
of nonroad vehicle or engine standards under section 209(e)(2)(A) using 
the same principles that it has historically applied in reviewing 
requests for waivers of preemption for new motor vehicle or new motor 
vehicle engine standards under section 209(b).\10\ These principles 
include, among other things, that EPA should limit its inquiry to the 
three specific authorization criteria identified in section 
209(e)(2)(A),\11\ and that EPA should give substantial deference to the 
policy judgments California has made in adopting its regulations. In 
previous waiver decisions, EPA has stated that Congress intended EPA's 
review of California's decision-making be narrow. EPA has rejected 
arguments that are not specified in the statute as grounds for denying 
a waiver:
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    \10\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075, 
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of 
permissible construction in analogizing Sec.  209(e) on nonroad 
sources to Sec.  209(a) on motor vehicles.''
    \11\ See supra note 12, at 36983.

    The law makes it clear that the waiver requests cannot be denied 
unless the specific findings designated in the statute can properly 
be made. The issue of whether a proposed California requirement is 
likely to result in only marginal improvement in California air 
quality not commensurate with its costs or is otherwise an arguably 
unwise exercise of regulatory power is not legally pertinent to my 
decision under section 209, so long as the California requirement is 
consistent with section 202(a) and is more stringent than applicable 
Federal requirements in the sense that it may result in some further 
reduction in air pollution in California.\12\
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    \12\ ``Waiver of Application of Clean Air Act to California 
State Standards,'' 36 FR 17458 (August 31, 1971). Note that the more 
stringent standard expressed here, in 1971, was superseded by the 
1977 amendments to section 209, which established that California 
must determine that its standards are, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards. In the 1990 amendments to section 209, Congress 
established section 209(e) and similar language in section 
209(e)(1)(i) pertaining to California's nonroad emission standards 
which California must determine to be, in the aggregate, at least as 
protective of public health and welfare as applicable federal 
standards.

This principle of narrow EPA review has been upheld by the U.S. Court 
of Appeals for the District of Columbia Circuit.\13\ Thus, EPA's 
consideration of all the evidence submitted concerning an authorization 
decision is circumscribed by its relevance to those questions that may 
be considered under section 209(e)(2)(A).
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    \13\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 
1095 (D.C. Cir. 1979) (``MEMA I'').
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C. Within-the-Scope Determinations

    If California amends regulations that were previously authorized by 
EPA, California may ask EPA to determine that the amendments are within 
the scope of the earlier authorization. A within-the-scope 
determination for such amendments is permissible without a full 
authorization review if three conditions are met. First, the amended 
regulations must not undermine California's previous determination that 
its standards, in the aggregate, are as protective of public health and 
welfare as applicable federal standards. Second, the amended 
regulations must not affect consistency with section 209 of the Act, 
following the same criteria discussed above in the context of full 
authorizations. Third, the amended regulations must not raise any ``new 
issues'' affecting EPA's prior authorizations.\14\
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    \14\ See ``California State Motor Vehicle Pollution Control 
Standards; Amendments Within the Scope of Previous Waiver of Federal 
Preemption,'' 46 FR 36742 (July 15, 1981).
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D. Deference to California

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

    It is worth noting. . . I would feel constrained to approve a 
California approach to the problem which I might also feel unable to 
adopt at the federal level in my own capacity as a regulator. The 
whole approach of the Clean Air Act is to force the development of 
new types of emission control technology where that is needed by 
compelling the industry to ``catch up'' to some degree with newly 
promulgated standards. Such an approach . . . may be attended with 
costs, in the shape of reduced product offering, or price or fuel 
economy penalties, and by risks that a wider number of vehicle 
classes may not be able to complete their development work in time. 
Since a balancing of these risks and costs against the potential 
benefits from reduced emissions is a central policy decision for any 
regulatory agency under the statutory scheme outlined above, I 
believe I am required to give very substantial deference to 
California's judgments on this score.\15\
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    \15\ 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision 
Document at 64 (58 FR 4166 (January 13, 1993)).

    EPA has stated that the text, structure, and history of the 
California waiver provision clearly indicate both a congressional 
intent and appropriate EPA practice of leaving the decision on 
``ambiguous and controversial matters of public policy'' to 
California's judgment.\16\
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    \16\ 40 FR 23104; 58 FR 4166.
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    The House Committee Report explained as part of the 1977 amendments 
to the Clean Air Act, where Congress had the opportunity to restrict 
the waiver provision, it elected instead to explain California's 
flexibility to adopt a complete program of motor vehicle emission 
controls. The amendment is intended to ratify and strengthen the 
California waiver provision and to affirm the underlying intent of that 
provision, i.e., to afford California the broadest possible discretion 
in selecting the best means to protect the health of its citizens and 
the public welfare.\17\
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    \17\ MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 294, 95 
Cong., 1st Sess. 301-02 (1977).
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E. Burden and Standard of Proof

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

[[Page 76471]]

    [T]he language of the statute and its legislative history 
indicate that California's regulations, and California's 
determinations that they must comply with the statute, when 
presented to the Administrator are presumed to satisfy the waiver 
requirements and that the burden of proving otherwise is on whoever 
attacks them. California must present its regulations and findings 
at the hearing and thereafter the parties opposing the waiver 
request bear the burden of persuading the Administrator that the 
waiver request should be denied.\18\
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    \18\ MEMA I, supra note 19, at 1121.

The Administrator's burden, on the other hand, is to make a reasonable 
evaluation of the information in the record in coming to the waiver 
decision. As the court in MEMA I stated: ``here, too, if the 
Administrator ignores evidence demonstrating that the waiver should not 
be granted, or if he seeks to overcome that evidence with unsupported 
assumptions of his own, he runs the risk of having his waiver decision 
set aside as `arbitrary and capricious.' '' \19\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \20\
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    \19\ Id. at 1126.
    \20\ Id. at 1126.
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    With regard to the standard of proof, the court in MEMA I explained 
that the Administrator's role in a section 209 proceeding is to:

[. . .] consider all evidence that passes the threshold test of 
materiality and * * * thereafter assess such material evidence 
against a standard of proof to determine whether the parties 
favoring a denial of the waiver have shown that the factual 
circumstances exist in which Congress intended a denial of the 
waiver.\21\
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    \21\ Id. at 1122.

    In that decision, the court considered the standards of proof under 
section 209 for the two findings related to granting a waiver for an 
``accompanying enforcement procedure.'' Those findings involve: (1) 
Whether the enforcement procedures impact California's prior 
protectiveness determination for the associated standards, and (2) 
whether the procedures are consistent with section 202(a). The 
principles set forth by the court, however, are similarly applicable to 
an EPA review of a request for a waiver of preemption for a standard. 
The court instructed that ``the standard of proof must take account of 
the nature of the risk of error involved in any given decision, and it 
therefore varies with the finding involved. We need not decide how this 
standard operates in every waiver decision.'' \22\
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    \22\ Id.
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    With regard to the protectiveness finding, the court upheld the 
Administrator's position that, to deny a waiver, there must be ``clear 
and compelling evidence'' to show that proposed enforcement procedures 
undermine the protectiveness of California's standards.\23\ 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.\24\
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    \23\ Id.
    \24\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all proceedings, but found 
that the opponents of the waiver were unable to meet their burden of 
proof even if the standard were a mere preponderance of the evidence. 
Although MEMA I did not explicitly consider the standards of proof 
under section 209 concerning a waiver request for ``standards,'' as 
compared to a waiver request for accompanying enforcement procedures, 
there is nothing in the opinion to suggest that the court's analysis 
would not apply with equal force to such determinations. EPA's past 
waiver decisions have consistently made clear that: ``[E]ven in the two 
areas concededly reserved for Federal judgment by this legislation--the 
existence of `compelling and extraordinary' conditions and whether the 
standards are technologically feasible--Congress intended that the 
standards of EPA review of the State decision to be a narrow one.'' 
\25\
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    \25\ See, e.g., ``California State Motor Vehicle Pollution 
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 
28, 1975), at 23103.
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F. EPA's Administrative Process in Consideration of California's LSI 
Regulations

    On November 24, 2014, EPA published a Federal Register notice 
announcing its receipt of California's authorization request. In that 
notice, EPA invited public comment on the 2008 LSI Amendments and the 
2010 LSI Fleet Amendments and provided an opportunity to request a 
public hearing.\26\
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    \26\ See ``California State Nonroad Engine Pollution Control 
Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road 
Compression-Ignition Regulations; Exhaust Emission Certification 
Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and 
Vehicles Regulations; Request for Within-the-Scope and Full 
Authorization; Opportunity for Public Hearing and Comment,'' 79 FR 
27801 (November 24, 2014).
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    EPA requested comment on the amendments, as follows: (1) Should 
California's amendments be considered under the within-the-scope 
analysis, or should they be considered under the full authorization 
criteria?; (2) If those amendments should be considered as a within-
the-scope request, do they meet the criteria for EPA to grant a within-
the-scope confirmation?; and (3) If the amendments should not be 
considered under the within-the-scope analysis, or in the event that 
EPA determines they are not within the scope of the previous 
authorization, do they meet the criteria for making a full 
authorization determination?
    EPA received no written comments. Additionally, EPA received no 
requests for a public hearing. Consequently, EPA did not hold a public 
hearing.

II. Discussion

    California requested that the Administrator grant a full 
authorization for its 2008 LSI Amendments and that such amendments meet 
the three authorization criteria found in section 209(e)(2)(A) of the 
CAA. We received no adverse comment or evidence suggesting that these 
amendments fail to meet any of the full authorization criteria.
    California also requested that the Administrator confirm that the 
2010 LSI Fleet Amendments detailed above are within the scope of a 
previously granted full authorization. California asserted that the 
2010 LSI Fleet Amendments met all three within-the-scope criteria, i.e. 
that the amendments: (1) Do not undermine the original protectiveness 
determination underlying California's regulations; (2) do not affect 
the consistency of the regulations with section 202(a); and (3) do not 
raise any new issues affecting the prior authorizations. We received no 
adverse comments or evidence suggesting a within-the-scope analysis is 
inappropriate, or that the 2010 LSI Amendments fail to meet any of the 
three criteria for within-the-scope confirmation.
    Our analysis of the 2008 LSI Amendments in the context of the full 
authorization criteria, and our analysis of the 2010 LSI Fleet 
Amendments in the context of the within-the-scope criteria, is set 
forth below.

A. California's Protectiveness Determination

    Section 209(e)(2)(A)(i) of the CAA instructs that EPA cannot grant 
a full authorization if the agency finds that California was arbitrary 
and capricious in its determination that its standards are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards. CARB's Board made a protectiveness 
determination in Resolution 08-42, finding that California's 2008 LSI

[[Page 76472]]

Amendments will not cause the California emission standards, in the 
aggregate, to be less protective of public health and welfare than 
applicable federal standards.\27\ CARB presents that California's 
exhaust emission standards applicable to LSI <= 825 cc and 825 cc <= 
LSI<= 1.0 L are at least as protective of public health and welfare as 
applicable federal exhaust emission standards. Similarly CARB's 
Executive Officer found that California's evaporative emission 
requirements applicable to 2011 and subsequent MY engines less than or 
equal to one liter are, in the aggregate, at least as protective as 
applicable federal standards.\28\
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    \27\ ``BE IT FURTHER RESOLVED that the Board hereby determines, 
pursuant to section 209(e)(2) of the federal Clean Air Act that the 
emission standards and other requirements related to the control of 
emissions adopted as part of these regulations are, in the 
aggregate, at least as protective of public health and welfare as 
applicable federal standards, that California needs the adopted 
standards to meet compelling and extraordinary conditions, and that 
the adopted standards and accompanying enforcement procedures are 
consistent with the provisions in section 209.'' CARB, Resolution 
06-11. This Resolution also extends to CARB's amendment requiring 
LSI engines used in vehicles similar to OHRVs to utilize OHRV test 
procedures. EPA-HQ-OAR-2014-0533-0008.
    \28\ CARB Executive Order G-14-014, EPA-HQ-OAR-2014-0533-0033.
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    EPA did not receive any comments challenging California's 
protectiveness determination. Therefore, based on the record before us, 
EPA finds no evidence in the record that demonstrates California was 
arbitrary and capricious in its determination that its 2008 LSI 
Amendments are, in the aggregate, at least as protective of public 
health and welfare as applicable federal standards.
    Similarly, CARB's 2010 LSI Fleet Amendments must not undermine 
California's previous determination that its standards, in the 
aggregate, are as protective of public health and welfare as applicable 
federal standards. In adopting the 2010 LSI Fleet Amendments CARB made 
a protectiveness determination in Resolution 10-48, finding that 
California's 2010 LSI Fleet Amendments do not undermine the Board's 
previous determination that the California emission standards, other 
emission related requirements, and associated enforcement procedures 
are, in the aggregate, at least as protective of public health and 
welfare than applicable federal standards.\29\
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    \29\ CARB Resolution 10-48, EP-HQ-OAR-2014-0533-0024.
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    EPA did not receive any comments challenging California's 
determination that its 2010 LSI Fleet Amendments do not undermine 
California's prior protectiveness determination. Therefore, based on 
the record before us, EPA finds no evidence in the record that 
demonstrates California was arbitrary and capricious in its 
determination that its 2010 LSI Fleet Amendments do not undermine 
California's prior protectiveness determination.

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

    Section 209(e)(2)(A)(ii) of the Act instructs that EPA cannot grant 
a full 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.\30\ In its Resolution 
08-42, CARB affirmed its longstanding position that California 
continues to need its own nonroad engine program to meet its serious 
air pollution problems. Likewise, EPA has consistently recognized that 
California continues to have the same ``geographical and climatic 
conditions that, when combined with the large numbers and high 
concentrations of automobiles, create serious pollution problems.''\31\ 
Furthermore, no commenter has presented any argument or evidence to 
suggest that California no longer needs a separate nonroad engine 
emissions program to address compelling and extraordinary conditions in 
California. Therefore, EPA has determined that we cannot deny 
California an authorization for its 2008 LSI Amendments under section 
209(e)(2)(A)(ii). EPA's within-the-scope determinations, applicable in 
this instance to CARB's request for its 2010 LSI Fleet Amendments, does 
not require an EPA analysis under section 209(e)(2)(A)(ii).
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    \30\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \31\ 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693 
(June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042 
(September 8, 2008).
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C. Consistency With Section 209 of the Clean Air Act

    Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot 
grant an authorization if California's standards and enforcement 
procedures are not consistent with section 209. As described above, EPA 
has historically evaluated this criterion for consistency with sections 
209(a), 209(e)(1), and 209(b)(1)(C). Similarly, EPA's analysis for 
within-the-scope determinations includes an assessment of whether the 
amendments are consistent with section 209.
1. Consistency With Section 209(a)
    To be consistent with section 209(a) of the Clean Air Act, 
California's 2008 LSI Amendments and 2010 LSI Fleet Amendments must not 
apply to new motor vehicles or new motor vehicle engines. California's 
LSI regulations expressly apply only to off-road vehicles and do not 
apply to engines used in motor vehicles as defined by section 216(2) of 
the Clean Air Act.\32\ No commenter presented otherwise. Therefore, EPA 
cannot deny California's request on the basis that California's 2008 
LSI Amendments and 2010 LSI Fleet Amendments are not consistent with 
section 209(a).
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    \32\ CARB, Request for Authorization at 16, and 23. EPA-HQ-OAR-
2014-0533-0003.
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2. Consistency With Section 209(e)(1)
    To be consistent with section 209(e)(1) of the Clean Air Act, 
California's 2008 LSI Amendments and 2010 LSI Fleet Amendments must not 
affect new farming or construction vehicles or engines that are below 
175 horsepower, or new locomotives or their engines. CARB notes that 
its LSI regulations do not affect such permanently preempted vehicles 
or engines.\33\ Therefore, EPA cannot deny California's request on the 
basis that California's LSI amendments are not consistent with section 
209(e)(1).
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    \33\ Id.
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3. Consistency With Section 209(b)(1)(C)
    The requirement that California's standards be consistent with 
section 209(b)(1)(C) of the Clean Air Act effectively requires 
consistency with section 202(a) of the Act. California standards are 
inconsistent with section 202(a) of the Act if there is inadequate 
lead-time to permit the development of technology necessary to meet 
those requirements, giving appropriate consideration to the cost of 
compliance within that timeframe. California's accompanying enforcement 
procedures would also be inconsistent with section 202(a) if federal 
and California test procedures conflicted. The scope of EPA's review of 
whether California's action is consistent with section 202(a) is 
narrow. The determination is limited to whether those opposed to the 
authorization or waiver have met their burden of establishing that 
California's standards are technologically infeasible, or that 
California's test procedures impose requirements inconsistent with the 
federal test procedures.\34\
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    \34\ MEMA I, 627, F.2d at 1126.

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[[Page 76473]]

a. 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\ 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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    \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).
    \37\ 41 FR 44209 (October 7, 1976).
    \38\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
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    CARB presents that the technology required to comply with its LSI 
regulations is feasible, and that it has provided sufficient lead-time, 
giving consideration to the cost of compliance.\39\
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    \39\ CARB, Request for Authorization at 17-21, 23.
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    EPA did not receive any comments suggesting that CARB's standards 
and test procedures are technologically infeasible. Consequently, based 
on the record, EPA cannot deny California's full authorization (for the 
2008 LSI Amendments) based on technological infeasibility. Also, EPA 
cannot deny California's within-the-scope request for the 2010 LSI 
Fleet Amendments based on technological infeasibility.
b. Consistency of Certification Procedures
    California's standards and accompanying enforcement procedures 
would also be inconsistent with section 202(a) if the California test 
procedures were to impose certification requirements inconsistent with 
the federal certification requirements. Such inconsistency means that 
manufacturers would be unable to meet both the California and federal 
testing requirements using the same test vehicle or engine.\40\ CARB 
presents that there is no issue regarding test procedure inconsistency 
for new LSI engines as California's test procedures were not modified 
since EPA's prior waiver.\41\ CARB also presents that its 2010 LSI 
Fleet Amendments do not include any test procedures and thus do not 
create an inconsistency issue.
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    \40\ See, e.g., 43 FR 32182 (July 25, 1978).
    \41\ 79 FR 29623 (May 23, 2006). See also CARB, Request for 
Authorization at 21.
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    EPA received no comments suggesting that CARB's LSI regulations 
pose any test procedure consistency problem. Therefore, based on the 
record, EPA cannot find that CARB's testing procedures are inconsistent 
with section 202(a). Consequently, EPA cannot deny CARB's request based 
on the criterion of consistency with section 209.
4. New Issues
    In the context of the 2010 LSI Fleet Amendments, CARB states that 
it is not aware of any new issues affecting the previously granted 
authorization for CARB's LSI Fleet regulations. ``The Amendments do not 
create new, more stringent emission standards or requirements, nor 
force any change in technology to warrant revisiting conclusions in 
granting the existing authorization.''\42\ EPA received no comment on 
this issue. We therefore do not find any new issues raised by the 2010 
LSI Fleet Amendments.
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    \42\ CARB, Request for Authorization at 23.
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E. Authorization Determinations for California's LSI Amendments

    After a review of the information submitted by CARB, EPA finds no 
basis for denying CARB's full authorization request for the 2008 LSI 
Fleet Amendments and EPA finds no basis for denying CARB's request that 
EPA confirm the 2010 LSI Fleet Amendments are within the scope of a 
prior EPA full authorization. For these reasons, EPA finds that a full 
authorization for California's 2008 LSI Amendments should be granted 
and a within-the-scope determination should be granted for California's 
2010 LSI Fleet Amendments.

III. Decision

    The Administrator has delegated the authority to grant California 
section 209(e) authorizations to the Assistant Administrator for Air 
and Radiation. After evaluating California's LSI amendments, CARB's 
submissions, and the lack of any comment or adverse comment, EPA is 
granting a full authorization to California for its 2008 LSI Amendments 
and a within-the-scope determination for its 2010 LSI Fleet Amendments.
    This decision will affect persons in California and those 
manufacturers and/or owners/operators nationwide who must comply with 
California's requirements. In addition, because other states may adopt 
California's standards for which a section 209(e)(2)(A) authorization 
has been granted if certain criteria are met, this decision would also 
affect those states and those persons in such states. See CAA section 
209(e)(2)(B). For these reasons, EPA determines and finds that this is 
a final action of national applicability, and also a final action of 
nationwide scope or effect for purposes of section 307(b)(1) of the 
Act. Pursuant to section 307(b)(1) of the Act, judicial review of this 
final action may be sought only in the United States Court of Appeals 
for the District of Columbia Circuit. Petitions for review must be 
filed by February 8, 2016. Judicial review of this final action may not 
be obtained in subsequent enforcement proceedings, pursuant to section 
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

    As with past authorization and waiver decisions, this action is not 
a rule as defined by Executive Order 12866. Therefore, it is exempt 
from review by the Office of Management and Budget as required for 
rules and regulations by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a 
supporting regulatory flexibility analysis addressing the impact of 
this action on small business entities.
    Further, the Congressional Review Act, 5 U.S.C. 801, et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, does not apply because this action is not a rule for purposes of 
5 U.S.C. 804(3).

    Dated: December 1, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-31049 Filed 12-8-15; 8:45 am]
BILLING CODE 6560-50-P