[Federal Register Volume 80, Number 237 (Thursday, December 10, 2015)]
[Notices]
[Pages 76685-76690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31043]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0798; FRL-9939-92-OAR]


California State Nonroad Engine Pollution Control Standards; 
Portable Diesel-Fueled Engines Air Toxics Control Measure; 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'') request for authorization 
of amendments to its Portable Diesel-Fueled Engines Air Toxics Control 
Measure (``Portable Engine Amendments''). EPA is also confirming that 
certain Portable Engine Amendments are within the scope of a prior EPA 
authorization. CARB's Portable Engine Amendments apply to in-use, 
portable, off-road \1\ diesel-fueled engines rated 50 brake horsepower 
(bhp) and greater. This decision is issued under the authority of the 
Clean Air Act (``CAA'' or ``Act'').
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    \1\ The federal term ``nonroad'' and the California term ``off-
road'' may be used interchangeably herein.

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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-2014-0798. 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 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-2014-0798 in the ``Enter 
Keyword or ID'' fill-in box to view documents in the record. Although a 
part of the official docket, the public docket does not include 
Confidential Business Information (``CBI'') or other information whose 
disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality (``OTAQ'') maintains 
a Web page that contains general information on its review of 
California waiver and authorization requests. Included on that page are 
links to prior waiver Federal Register notices, some of which are cited 
in today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Read, Attorney, Office of 
Transportation and Air Quality, U.S. Environmental Protection Agency, 
2565 Plymouth Road, Ann Arbor, MI 48105. Telephone: (734) 214-4367. 
Fax: (734) 214-4212. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    California initially adopted its Portable Engine regulations on 
February 26, 2004 as part of a broad California program to reduce 
emissions of diesel particulate matter. The regulations applied to in-
use, portable, off-road diesel-fueled engines rated 50 brake horsepower 
(bhp) and greater. ``Portable engines'' are engines that may be moved 
easily from location to location.\2\ Subject engines were required to 
be certified to certain emission standards by January 1, 2010, unless 
the engines were designated as low-use engines or as engines 
exclusively used in emergency applications. Fleets of in-use diesel-
fueled portable engines were required to meet fleet-average standards 
for diesel PM emissions that become increasingly more stringent in 
2013, 2017, and 2020. The initial Portable Engine air toxic control 
measure (ATCM) became operative under state law on March 11, 2005 \3\ 
and EPA authorized the regulations on November 29, 2012.\4\
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    \2\ 77 FR 72846, 72847 (December 6, 2012).
    \3\ The Portable Engine ATCM is set forth at 17 CCR 93116 et 
seq.
    \4\ 77 FR 72846 (December 6, 2012).
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    CARB adopted the 2007 amendments on July 31, 2007, and they became 
effective on September 12, 2007. The 2007 amendments were designed to 
extend temporary, emergency provisions CARB had adopted to address the 
inability of owners and operators to permit or register older

[[Page 76686]]

engines that did not satisfy the Portable Engine certification 
requirement to meet the most stringent federal or California emission 
standards. The 2007 amendments addressed this issue by (i) granting 
discretion to local air districts to permit or register uncertified 
portable engines that were operated in California within a designated 
time period prior to October 1, 2006, or that were low-use engines or 
used exclusively in emergency applications, (ii) allowing Tier 1 and 
Tier 2 engines that were in operation within a designated time period 
prior to October 1, 2006, but did not meet the most stringent emission 
requirements, to be permitted or registered until December 31, 2009, 
and (iii) otherwise providing additional compliance flexibility.
    In 2008, CARB adopted an In-Use Off-Road regulation \5\ and a Truck 
and Bus regulation.\6\ CARB then amended the Portable Engine 
regulations to exempt certain engines (viz., secondary engines on two-
engine cranes and two-engine sweepers, and on lattice boom cranes) that 
instead became subject to either the In-Use Off-Road regulation or the 
Truck and Bus regulation. CARB formally adopted the amendments to the 
Portable Engine ATCM on October 19, 2009 (the 2009 amendments).
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    \5\ The California In-Use Off-Road regulation is set forth at 13 
CCR 2449 et seq.
    \6\ The California Truck and Bus regulation is set forth at 13 
CCR 2025 et seq.
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    California formally approved the 2010 amendments to the Portable 
Engine ATCM regulations on October 19, 2010 and January 20, 2011. The 
2010 amendments became operative under state law on February 19, 2011. 
The 2010 amendments provided further compliance flexibility, and 
clarified or modified other aspects of the regulations. For example, 
some entities were allowed to operate a limited number of non-certified 
engines for an additional year, through December 31, 2010. Additional 
regulatory relief was provided for engines that were permitted or 
registered prior to January 1, 2010. The amendments provided for 
permitting of portable engines that were certified to standards for new 
on-road engines. Auxiliary deck engines on water well drilling rigs 
were exempted and instead made subject to CARB's In-Use Off-Road 
Regulation. Portable engines used exclusively on dedicated snow removal 
vehicles were also exempted. Low-use and emergency use engines were 
required to be removed or replaced with a current tier engine by 
January 1, 2017. The 2010 amendments also deleted the provision that 
had allowed local air districts, in their discretion, to permit non-
certified engines that had operated between March 1, 2004 and October 
1, 2006. The amendments specified particulate matter (PM) emission 
factors for certain engines, which are used to help determine fleet 
average standards. Finally, the 2010 amendments provided relief for 
certified engines that lost their permit exemption due to changes in 
local air district rules.
    By letter dated September 15, 2014, CARB submitted a request to EPA 
pursuant to section 209(e) of the Act for confirmation that the 2007, 
2009, and 2010 amendments fall within the scope of EPA's previous 
authorization, or, in the alternative, that EPA grant a full 
authorization for those amendments.

A. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts any state, or 
political subdivision thereof, from adopting or attempting to enforce 
any standard or other requirement relating to the control of emissions 
for certain new nonroad engines or vehicles.\7\ For all other nonroad 
engines (including ``non-new'' engines), states generally are preempted 
from adopting and enforcing standards and other requirements relating 
to the control of emissions, except that section 209(e)(2)(A) of the 
Act requires EPA, after notice and opportunity for public hearing, to 
authorize California to adopt and enforce such regulations unless EPA 
makes one of three enumerated findings. Specifically, EPA must deny 
authorization if the Administrator finds that (1) California's 
protectiveness determination (i.e., that California standards will be, 
in the aggregate, as protective of public health and welfare as 
applicable federal standards) is arbitrary and capricious, (2) 
California does not need such standards to meet compelling and 
extraordinary conditions, or (3) the California standards and 
accompanying enforcement procedures are not consistent with section 209 
of the Act.
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    \7\ States are expressly preempted from adopting or attempting 
to enforce any standard or other requirement relating to the control 
of emissions from new nonroad engines which are used in construction 
equipment or vehicles or used in farm equipment or vehicles and 
which are smaller than 175 horsepower. Such express preemption under 
section 209(e)(1) of the Act also applies to new locomotives or new 
engines used in locomotives.
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    On July 20, 1994, EPA promulgated a rule interpreting the three 
criteria set forth in section 209(e)(2)(A) that EPA must consider 
before granting any California authorization request for nonroad engine 
or vehicle emission standards.\8\ EPA revised these regulations in 
1997.\9\ As stated in the preamble to the 1994 rule, EPA historically 
has interpreted the consistency inquiry under the third criterion, 
outlined above and set forth in section 209(e)(2)(A)(iii), to require, 
at minimum, that California standards and enforcement procedures be 
consistent with section 209(a), section 209(e)(1), and section 
209(b)(1)(C) of the Act.\10\
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    \8\ See ``Air Pollution Control; Preemption of State Regulation 
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20, 
1994).
    \9\ See ``Control of Air Pollution: Emission Standards for New 
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts; 
Preemption of State Regulation for Nonroad Engine and Vehicle 
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997). 
The applicable regulations are now found in 40 CFR part 1074, 
subpart B, section 1074.105.
    \10\ See supra note 8. EPA has interpreted 209(b)(1)(C) in the 
context of section 209(b) motor vehicle waivers.
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    In order to be consistent with section 209(a), California's nonroad 
standards and enforcement procedures must not apply to new motor 
vehicles or new motor vehicle engines. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests under section 209(b)(1)(C). That provision 
provides that the Administrator shall not grant California a motor 
vehicle waiver if she finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the Act. Previous decisions granting waivers and 
authorizations have noted that state standards and enforcement 
procedures will be found to be inconsistent with section 202(a) if (1) 
there is inadequate lead time to permit the development of the 
necessary technology, giving appropriate consideration to the cost of 
compliance within that time, 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

[[Page 76687]]

under section 209(b).\11\ 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),\12\ 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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    \11\ 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.''
    \12\ See supra note 7, 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.\13\
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    \13\ ``Waiver of Application of Clean Air Act to California 
State Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more 
stringent standard expressed here, in 1971, was superseded by the 
1977 amendments to section 209, which established that California 
must determine that its standards are, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards. In the 1990 amendments to section 209, Congress 
established section 209(e) and similar language in section 
209(e)(1)(i) pertaining to California's nonroad emission standards 
which California must determine to be, in the aggregate, at least as 
protective of public health and welfare as applicable federal 
standards.

    This principle of narrow EPA review has been upheld by the U.S. 
Court of Appeals for the District of Columbia Circuit.\14\ 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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    \14\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 
1095 (D.C. Cir. 1979) (``MEMA I'').
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    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.\15\
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    \15\ 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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B. Deference to California

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

    It is worth noting . . . I would feel constrained to approve a 
California approach to the problem which I might also feel unable to 
adopt at the federal level in my own capacity as a regulator. The 
whole approach of the Clean Air Act is to force the development of 
new types of emission control technology where that is needed by 
compelling the industry to ``catch up'' to some degree with newly 
promulgated standards. Such an approach . . . may be attended with 
costs, in the shape of reduced product offering, or price or fuel 
economy penalties, and by risks that a wider number of vehicle 
classes may not be able to complete their development work in time. 
Since a balancing of these risks and costs against the potential 
benefits from reduced emissions is a central policy decision for any 
regulatory agency under the statutory scheme outlined above, I 
believe I am required to give very substantial deference to 
California's judgments on this score.\16\
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    \16\ 40 FR 23102, 23103-23104 (May 28, 1975).

    Similarly, EPA has stated that the text, structure, and history of 
the California waiver provision clearly indicate both a congressional 
intent and appropriate EPA practice of leaving the decision on 
``ambiguous and controversial matters of public policy'' to 
California's judgment.\17\ This interpretation is supported by relevant 
discussion in the House Committee Report for the 1977 amendments to the 
Clean Air Act.\18\ 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.\19\
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    \17\ Id. at 23104; 58 FR 4166 (January 13, 1993).
    \18\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th 
Cong., 1st Sess. 301-302 (1977)).
    \19\ Id.
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C. Burden and Standard of Proof

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

    [T]he language of the statute and its legislative history 
indicate that California's regulations, and California's 
determinations that they must comply with the statute, when 
presented to the Administrator are presumed to satisfy the waiver 
requirements and that the burden of proving otherwise is on whoever 
attacks them. California must present its regulations and findings 
at the hearing and thereafter the parties opposing the waiver 
request bear the burden of persuading the Administrator that the 
waiver request should be denied.\20\
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    \20\ MEMA I, supra note 17, at 1121.

    The same logic applies to authorization requests. The 
Administrator's burden, on the other hand, is to make a reasonable 
evaluation of the information in the record in coming to the waiver 
decision. As the court in MEMA I stated: ``here, too, if the 
Administrator ignores evidence demonstrating that the waiver should not 
be granted, or if he seeks to overcome that evidence with unsupported 
assumptions of his own, he runs the risk of having his waiver decision 
set aside as `arbitrary and capricious.' ''\21\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \22\
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    \21\ Id. at 1126.
    \22\ 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.\23\
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    \23\ Id. at 1122.

    With regard to the protectiveness finding, the court upheld the 
Administrator's position that, to deny a waiver, there must be ``clear 
and compelling evidence'' to show that

[[Page 76688]]

proposed enforcement procedures undermine the protectiveness of 
California's standards.\24\ 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.\25\
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    \24\ Id.
    \25\ Id.
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    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all proceedings, but found 
that the opponents of the waiver were unable to meet their burden of 
proof even if the standard were a mere preponderance of the evidence. 
EPA's past waiver decisions have consistently made clear that: ``[E]ven 
in the two areas concededly reserved for Federal judgment by this 
legislation--the existence of `compelling and extraordinary' conditions 
and whether the standards are technologically feasible--Congress 
intended that the standards of EPA review of the State decision to be a 
narrow one.'' \26\
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    \26\ 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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D. EPA's Administrative Process in Consideration of California's 
Portable Engine ATCM Amendment Request for Authorization

    On November 21, 2014, EPA published a Federal Register notice 
announcing its receipt of California's authorization request. In that 
notice, EPA invited public comment on each of the Portable Engine ATCM 
amendments and an opportunity to request a public hearing.\27\
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    \27\ See ``California State Nonroad Engine Pollution Control 
Standards; Portable Diesel-Fueled Engines Air Toxics Control 
Measure; Request for Confirmation That Amendments Are Within-the-
Scope of Previous Authorization; Opportunity for Public Hearing and 
Comment,'' 79 FR 69462 (November 21, 2014).
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    First, EPA requested comments on whether California's 2007, 2009, 
or 2010 Portable Engine ATCM amendments: (1) 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; (2) affect the consistency of California's requirements with 
section 209 of the Act; or (3) raise any other new issues affecting 
EPA's previous authorization determinations. EPA also requested 
comments on whether the 2007, 2009, or 2010 Portable Engine ATCM 
amendments meet the criteria for a full authorization should any party 
believe that the amendments are not within the scope of the previous 
authorization.
    EPA received no comments and no requests for a public hearing. 
Consequently, EPA did not hold a public hearing.

II. Discussion

A. Within-the-Scope Discussion

    CARB maintains that the amendments noted above meet all three 
within-the-scope criteria, i.e., that the amendments: (1) Do not 
undermine the original protectiveness determination underlying 
California's Portable Engine ATCM regulations; (2) do not affect the 
consistency of the Portable Engine ATCM regulations with section 209, 
and (3) do not raise any new issues affecting the prior 
authorization.\28\ We received no adverse comments or evidence 
suggesting a within-the-scope analysis is inappropriate, or that these 
Portable Engine ATCM amendments fail to meet any of the three criteria 
for within-the-scope confirmation.
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    \28\ ``Request for Authorization Action Pursuant to Clean Air 
Act Section 209(e) for 2007, 2009, and 2010 Amendments to 
California's Airborne Toxic Control Measure for Portable Diesel 
Engines 50 Horsepower and Greater'' (September 15, 2014), 
(``California Authorization Support Document''), at 10-14 [publicly 
available at www.regulations.gov Web site, docket number EPA-HQ-OAR-
2014-0798-0002].
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    With regard to the first within-the-scope prong, CARB maintains 
that the stringency of its emission standards is, in the aggregate, at 
least as protective of public health and welfare as applicable federal 
standards, especially since there are no federally applicable standards 
regulating in-use nonroad engines.\29\ No comments presented otherwise, 
and EPA agrees that there are no federally applicable standards for in-
use nonroad engines and that no evidence exists in the record to 
demonstrate that CARB's Portable Engine ATCM regulations, in the 
aggregate, are less protective than applicable federal standards. 
Therefore, we find that the Portable Engine ATCM amendments, as noted, 
do not undermine the protectiveness determination made with regard to 
the original Portable Engine ATCM authorization.
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    \29\ California Authorization Support Document, at 11.
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    With regard to the second within-the-scope prong (consistency with 
section 209), CARB first maintains that the Portable Engine ATCM 
amendments do not regulate new motor vehicles or motor vehicle engines 
and so are consistent with section 209(a).\30\ Likewise the Portable 
Engine ATCM amendments do not regulate any of the permanently preempted 
categories of engines or vehicles (e.g., new locomotives, engines for 
new locomotives, or new nonroad engines less than 175 horsepower used 
in farm and construction equipment and vehicles), and so are consistent 
with section 209(e)(1).\31\ CARB maintains that the Portable Engine 
ATCM amendments do not cause any technological feasibility issues or 
cause inconsistency between state and federal test procedures, per 
section 209(b)(1)(C). Finally, CARB maintains that none of the 2007, 
2009 or 2010 Amendments alter the test procedures specified for 
certifying engines, so there is no effect on the consistency with 
federal test procedures.\32\ As mentioned above, no comments were 
received showing otherwise on any of these contentions. Because there 
is no evidence in the record to indicate that CARB's Portable Engine 
amendments are inconsistent with section 209, we cannot find that the 
noted Portable Engine amendments are inconsistent with section 209.
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    \30\ California Authorization Support Document, at 11.
    \31\ California Authorization Support Document, at 11.
    \32\ California Authorization Support Document, at 14.
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    Regarding the third prong, California states that it is ``not aware 
of any new issues affecting the previously granted authorization for 
the Portable Engine ATCM.'' \33\ There were also no comments arguing 
that any new issues have been raised affecting the previously granted 
authorization. CARB's 2007 Amendments and 2009 Amendments provide 
compliance flexibilities and regulatory relief that would not appear to 
raise any new issues affecting the previously granted authorization. 
Thus, we cannot find that the 2007 or 2009 Amendments raise any new 
issues affecting the previously granted authorization.
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    \33\ California Authorization Support Document, at 14.
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    CARB's 2010 Amendments, however, include some new or stricter 
regulatory requirements, such as (i) requiring low-use and emergency 
use engines to be removed or replaced with a current tier engine by 
January 1, 2017 (which is earlier than originally required for some 
engine sizes), (ii) no longer allowing local air districts to permit 
non-certified engines that had operated between March 1, 2004 and 
October 1, 2006, and (iii) specifying PM emission factors for certain 
engines in order to help determine fleet average standards. These 
amendments will be referred to herein as the ``New 2010 Requirements.'' 
Because these New 2010 Requirements raise new issues affecting the 
authorization previously granted for the

[[Page 76689]]

Portable Engine ATCM, the New 2010 Requirements are not considered 
within the scope of the prior authorization, and will need to be 
evaluated for a full authorization.\34\
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    \34\ Because the New 2010 amendments create both new and more 
stringent emission requirements on the regulated parties, which are 
the type of requirements otherwise preempted under section 
209(e)(1), EPA considers such amendments to create ``new issues'' 
which require a full consideration of the authorization criteria 
under section 209(e)(2)(A). Minor amendments to previously waived 
standards that do not create additional burdens on the regulated 
parties are considered under the within-the-scope criteria by EPA. 
See 37 FR 14831 (July 25, 1972).
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    In summary, for the 2007 and 2009 Amendments, we find that 
California has met the three criteria for a within-the-scope 
authorization approval, and these amendments are thus confirmed as 
within the scope of the previous EPA authorization of California's 
Portable Engine ATCM regulations. For the 2010 Amendments, while most 
of the 2010 amendments are within the scope of the previous 
authorization, the New 2010 Requirements are not within the scope of 
the prior authorization, and we will proceed to determine whether the 
New 2010 Requirements qualify for full authorization.

B. Full Authorization Discussion for the New 2010 Requirements

    As described in the background section, the CAA directs EPA to 
grant authorization, unless EPA makes one of three possible findings: 
(1) That California's protectiveness determination is arbitrary and 
capricious, (2) that California does not need state standards to meet 
compelling and extraordinary conditions, or (3) that the California 
standards and accompanying enforcement procedures are not consistent 
with section 209 of the Act. As mentioned above, the New 2010 
Requirements to be evaluated for full authorization include the 
amendments requiring low-use and emergency use engines to be removed or 
replaced with a current tier engine by January 1, 2017, the amendments 
no longer allowing local air districts to permit non-certified engines 
that had operated between March 1, 2004 and October 1, 2006, and the 
amendments specifying PM emission factors for certain engines in order 
to help determine fleet average standards.
    Regarding the first possible finding, it is clear that California's 
standards are at least as protective of public health and welfare as 
applicable federal standards, especially since there are no federally 
applicable standards to regulate in-use nonroad engines.\35\ No 
comments presented otherwise, and the New 2010 Requirements at issue 
make the standards more protective, not less. Therefore, we find that 
California's protectiveness determination is not arbitrary and 
capricious.
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    \35\ California Authorization Support Document, at 11.
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    Regarding the second possible finding, California reasserts its 
longstanding position that the State continues to need its own nonroad 
engine program to meet serious air pollution problems.\36\ CARB points 
out that California, particularly in the South Coast and San Joaquin 
Valley Air Basins, continues to experience some of the worst air 
quality in the nation.\37\ We further note that the relevant inquiry 
under section 209(e)(2)(A)(ii) is whether California needs its own 
emission control program to meet compelling and extraordinary 
conditions, not whether any given standard is necessary to meet such 
conditions.\38\ CARB's emission control program is a central part of 
California's efforts to improve its air quality, to meet its air 
quality goals and satisfy its State Implementation Plan obligations. No 
comments were submitted otherwise. Therefore, we cannot find that 
California does not need its state standards to meet compelling and 
extraordinary conditions in California.
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    \36\ California Authorization Support Document, at 14-16.
    \37\ California Authorization Support Document, at 15.
    \38\ Final 209(e) Rule, 59 FR at 36982. The Administrator has 
recognized that even if such a standard by standard test were 
applied to California, it ``would not be applicable to its fullest 
stringency due to the degree of discretion given to California in 
dealing with its mobile source pollution problems.'' (41 FR 44209, 
44213, (October 7, 1976); 49 FR 18887, 18892 (May 3, 1984).); see 
also EPA's 2009 GHG Waiver Decision wherein EPA rejected the 
suggested interpretation of section 209(b)(1)(B) as requiring a 
review of the specific need for California's new motor vehicle 
greenhouse gas emission standards as opposed to the traditional 
interpretation (need for the program as a whole) applied to local or 
regional air pollution problems.
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    The third and final possible finding upon which authorization could 
be denied is if the New 2010 Requirements are not consistent with 
``this section.'' As discussed above, this requires evaluation of 
consistency with sections 209(a), 209(e)(1), and 209(b)(1)(C). To be 
consistent with section 209(a), the amendments must not apply to new 
motor vehicles or motor vehicle engines. CARB states that none of its 
Portable Engine ATCM requirements apply to new motor vehicles or motor 
vehicle engines.\39\ No evidence has been received to the contrary. 
Second, to be consistent with section 209(e)(1) of the Act, the 
regulations must not attempt to regulate vehicles and engines 
permanently preempted from state regulation by section 209(e)(1), 
including new nonroad engines below 175 horsepower used in farm and 
construction equipment and vehicles, or new locomotives or locomotive 
engines. CARB states that none of its Portable Engine ATCM requirements 
apply to these preempted vehicles or engines.\40\ Again, we received no 
evidence to the contrary. We therefore cannot find that the New 2010 
Requirements are inconsistent with sections 209(a) and 209(e)(1).
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    \39\ California Authorization Support Document, at 11.
    \40\ California Authorization Support Document, at 11.
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    Third, to be consistent with section 209(b)(1)(c), there must be 
adequate lead time to permit technological development for compliance 
with the new standards, and the state test procedures must not be made 
inconsistent with federal test procedures.
    Regarding test procedures, CARB maintains that the amendments do 
not alter any test procedures, and EPA does not have comparable in-use 
standards and test procedures; thus, by definition, there is no 
inconsistency with federal test procedures.\41\ No comments were 
received otherwise. We therefore cannot find that the New 2010 
Requirements are inconsistent with federal test procedures.
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    \41\ California Authorization Support Document, at 14.
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    Regarding the existence of adequate lead time, CARB maintains that 
the New 2010 Requirements do not require development of new 
technologies, and that EPA has already previously determined that 
California's applicable Tier 1 through Tier 4 off-road compression 
ignition engine standards are technically feasible,\42\ thus there is 
no consistency issue presented with regard to lead time. As mentioned 
above, we received no comment or evidence contesting California's 
positions regarding the consistency criterion under section 
209(b)(1)(c).The compliance date for low use and emergency use engines 
is nearly the same as the original compliance date, and the two other 
changes (i.e., elimination of discretionary permits by local air 
districts, and specification of PM emission factors used to calculate 
fleet average standards) likewise do not raise feasibility issues. 
Thus, we cannot find any evidence indicating that the New 2010 
Requirements do not provide adequate lead time or are otherwise not

[[Page 76690]]

technically feasible. We therefore cannot find that the New 2010 
Requirements that we analyzed under the full authorization criteria are 
inconsistent with section 209 of the Act.
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    \42\ California Authorization Support Document, at 13, citing 75 
FR 8056, 8060 (February 23, 2010).
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    Having found that the New 2010 Requirements satisfy each of the 
criteria for full authorization, and having received no contrary 
evidence to contradict this finding, we cannot deny authorization of 
the 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 CARB's amendments to its Portable 
Engine ATCM regulations described above and CARB's submissions for EPA 
review, EPA is granting a within-the-scope authorization for the 
Portable Engine ATCM 2007, 2009, and 2010 Amendments, other than the 
New 2010 Requirements (as specified above). In addition, EPA is 
granting a full authorization for the New 2010 Requirements.
    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. 2015-31043 Filed 12-9-15; 8:45 am]
 BILLING CODE 6560-50-P