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California State Nonroad Engine Pollution Control Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road Compression-Ignition Regulations; Exhaust Emission Certification Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and Vehicles Regulations; Notice of Decision

American Government Special Collections Reference Desk

American Government

California State Nonroad Engine Pollution Control Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road Compression-Ignition Regulations; Exhaust Emission Certification Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and Vehicles Regulations; Notice of Decision

Janet G. McCabe
Environmental Protection Agency
December 11, 2015


[Federal Register Volume 80, Number 238 (Friday, December 11, 2015)]
[Notices]
[Pages 76971-76979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31189]


=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2014-0535; FRL 9939-94-OAR]


California State Nonroad Engine Pollution Control Standards; 
Small Off-Road Engines Regulations; Tier 4 Off-Road Compression-
Ignition Regulations; Exhaust Emission Certification Test Fuel for Off-
Road Spark-Ignition Engines, Equipment, and Vehicles Regulations; 
Notice of Decision

AGENCY: Environmental Protection Agency.

ACTION: Notice of Decision.

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SUMMARY: The Environmental Protection Agency (EPA) is confirming that 
the California Air Resources Board's (CARB's) 2011 amendments to its 
Small Off-Road Engines (SORE) regulations (2011 SORE amendments), Tier 
4 Off-Road Compression-Ignition (CI) regulations (2011 Tier 4 
amendments), and Exhaust Emission Certification Test Fuel for Off-Road 
Spark-Ignition (SI) Engines, Equipment, and Vehicles regulations (2011 
Certification Test Fuel amendments) are within the scope of previous 
EPA authorizations. The 2011 SORE amendments modify California's 
existing SORE test procedures by aligning California procedures to be 
consistent with recent amendments by EPA to the federal certification 
and exhaust emission testing requirements.

[[Page 76972]]

The 2011 Tier 4 amendments enhance the harmonization of CARB's exhaust 
emission requirements for new off-road CI engines with the 
corresponding federal emissions requirements for nonroad CI engines. 
The 2011 Certification Test Fuel amendments modify the certification 
test fuel requirements for off-road spark ignition, gasoline-fueled 
engines to allow the use of 10-percent ethanol-blend gasoline (E10) as 
a certification fuel. This decision is issued under the authority of 
the Clean Air Act (``CAA'' or ``Act'').

DATES: Petitions for review must be filed by February 9, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2014-0535. All documents relied upon in making this 
decision, including those submitted to EPA by CARB, are contained in 
the public docket. Publicly available docket materials are available 
either electronically through www.regulations.gov or in hard copy at 
the Air and Radiation Docket in the EPA Headquarters Library, EPA West 
Building, Room 3334, located at 1301 Constitution Avenue NW., 
Washington, DC. The Public Reading Room is open to the public on all 
federal government working days from 8:30 a.m. to 4:30 p.m.; generally, 
it is open Monday through Friday, excluding holidays. The telephone 
number for the Reading Room is (202) 566-1744. The Air and Radiation 
Docket and Information Center's Web site is http://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and 
Radiation Docket is: a-and-r-Docket@epa.gov, the telephone number is 
(202) 566-1742, and the fax number is (202) 566-9744. An electronic 
version of the public docket is available through the federal 
government's electronic public docket and comment system. You may 
access EPA dockets at http://www.regulations.gov. After opening the 
www.regulations.gov Web site, enter EPA-HQ-OAR-2014-0535 in the ``Enter 
Keyword or ID'' fill-in box to view documents in the record. Although a 
part of the official docket, the public docket does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality (OTAQ) maintains a 
Web page that contains general information on its review of California 
waiver and authorization requests. Included on that page are links to 
prior waiver Federal Register notices, some of which are cited in 
today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Brenton Williams, Attorney-Advisor, 
Compliance Division, Office of Transportation and Air Quality, U.S. 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105. Telephone: (734) 214-4341. Fax: (734) 214-4053. Email: 
williams.brent@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

A. 2011 SORE Amendments

    CARB includes within its SORE regulations small off-road engines 
and equipment \1\ rated at or below 19 kilowatts (kW) (25 horsepower 
(hp)). The vast majority of engines covered by the SORE regulations are 
SI engines that are used to power a broad range of equipment, including 
lawn mowers, leaf blowers, generators, and small industrial equipment. 
Exhaust and evaporative emissions from these engines are a significant 
source of hydrocarbons and oxides of nitrogen, pollutants that 
contribute to smog problems in California.
---------------------------------------------------------------------------

    \1\ The federal term ``nonroad'' and the California term ``off-
road'' are used interchangeably.
---------------------------------------------------------------------------

    CARB first adopted standards and test procedures applicable to SORE 
in 1992. In 1993, CARB amended these regulations to delay their 
implementation until 1995. EPA authorized these initial SORE 
regulations in 1995.\2\ California subsequently amended its regulations 
in 1994, 1995, and 1996 to clarify certification and implementation 
procedures, exempt military tactical equipment, and relax emissions 
standards for certain engines. EPA confirmed these three amendment 
packages as within the scope of previous authorizations in 2000.\3\
---------------------------------------------------------------------------

    \2\ 60 FR 37440 (July 20, 1995).
    \3\ 65 FR 69763 (November 20, 2000).
---------------------------------------------------------------------------

    In 1998, CARB amended the SORE regulation to apply to all engines 
rated less than 19 kW used in off-road applications. The 1998 
amendments also revised the regulations to be based on engine 
displacement instead of whether the engine is used in a handheld or 
non-handheld application, delayed implementation of certain portions of 
the standards, and adopted new emission standards for new engines under 
19 kW. EPA confirmed these amendments to be within the scope of 
previous authorizations in 2000.\4\
---------------------------------------------------------------------------

    \4\ Id. at 69767.
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    In 2004, CARB amended its off-road CI regulations to match federal 
standards and exhaust emissions standards, and adopted evaporative 
emissions standards for small off-road SI engines rated at or below 19 
kW. EPA granted a full authorization for these amendments in 2006.\5\ 
CARB adopted additional SORE amendments in 2008 which modified the 
emission credits program to provide manufacturers with additional 
flexibility and permitted the use of certification fuels with up to ten 
volume percent ethanol content, provided that the same fuel is used for 
certification with the EPA. EPA found these amendments to be within the 
scope of previous authorizations in 2015.\6\
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    \5\ 71 FR 75536 (December 15, 2006).
    \6\ 80 FR 26041 (May 6, 2015).
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B. 2011 Tier 4 Amendments

    The second element of CARB's request is amendments to its nonroad 
regulations that include CI engines used in tractors, excavators, 
dozers, scrapers, portable generators, transport refrigeration units, 
irrigation pumps, welders, compressors, scrubbers, and sweepers.\7\ In 
1992, CARB approved a regulation to control exhaust emissions from 
heavy-duty off-road CI engines 175 hp and above.\8\ EPA granted 
authorization in 1995.\9\ In 2000 CARB harmonized California's emission 
standards and test procedures to federal standards that EPA promulgated 
in 1998 for the same nonroad CI engine categories (Tier 1 through Tier 
3).\10\ In 2004-2005 CARB generally harmonized California's Tier 4 
standards to the federal Tier 4 standards for these same off-road CI 
engines that EPA adopted in 2004.\11\ EPA confirmed that the 2000 
amendments to the smallest category of engines (less than 19 kW) were 
within the scope of previous authorizations.\12\ EPA granted full 
authorizations for the 2004-2005 amendments as they affected new off-
road CI engines less than 19 kW, and for the 2000 and 2004-2005 
amendments as they affected new off-road CI engines for the other two 
power categories (19 kW-130 kW and greater than 130 kW).\13\
---------------------------------------------------------------------------

    \7\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 4.
    \8\ Id.
    \9\ 60 FR 37440 (July 5, 1995).
    \10\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 5.
    \11\ Id.
    \12\ 75 FR 8056 (February 23, 2010).
    \13\ Id.
---------------------------------------------------------------------------

C. 2011 Certification Test Fuel Amendments

    The third element of CARB's request is amendments to its Exhaust 
Emission Certification Test Fuel for Off-Road SI

[[Page 76973]]

Engines, Equipment, and Vehicles regulations. Prior to these 
amendments, California's SORE and Large Spark Ignition (LSI) test 
procedures allowed gasoline-fueled, SI engines to be tested for 
compliance with certification exhaust standards using either Indolene 
or Phase 2 California Reformulated Gasoline (CaRFG2) \14\ as an option 
to federally specified test fuels. Recreational Marine engines were 
permitted to use CaRFG2, federal Indolene, or the fuel specified in 
Table 3 of Appendix A to 40 CFR part 91, subpart D. Off Highway 
Recreational Vehicles (OHRV) that were categorized as off-road 
motorcycles were required to certify using Indolene. OHRVs that were 
categorized as go-karts and specialty vehicles were allowed to certify 
using either Indolene or CaRFG2, and OHRVs that were categorized as 
all-terrain vehicles (ATVs) were primarily required to use Indolene, 
but under certain circumstances were allowed to certify using 
CaRFG2.\15\
---------------------------------------------------------------------------

    \14\ Phase 1 CaRFG, which was implemented in 1992, eliminated 
lead from gasoline and set regulations for deposit control additives 
and reid vapor pressure (RVP). Phase 2 CaRFG (CaRFG2), which was 
implemented in 1996, set specifications for sulfur, aromatics, 
oxygen, benzene, T50, T90, Olefins, and RVP and established a 
Predictive Model. Phase 3 CaRFG (CaRFG3), which was implemented in 
1999, eliminated methyl-tertiary-butyl-ether from California 
gasoline.
    \15\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 9.
---------------------------------------------------------------------------

    The initial SORE regulation and the 1993 amendments to the SORE 
regulation allowed manufacturers to utilize either Indolene or 
California Phase 1 fuel as test fuel for certification.\16\ EPA granted 
California a full authorization for the initial SORE regulation and the 
1993 amendments.\17\ In 1994 CARB amended the SORE regulation to 
provide manufacturers the option to certify SORE engines using CaRFG2 
that was consistent with the certification test fuel specified for on-
road motor vehicles. EPA confirmed that the 1994 amendment was within 
the scope of the previous authorizations.\18\ In 2008, EPA confirmed 
that allowing the use of 10-percent ethanol-blend of gasoline (E10) as 
a certification fuel for SORE was within the scope of previous 
authorizations.\19\
---------------------------------------------------------------------------

    \16\ Id. at 8.
    \17\ 60 FR 37440 (July 20, 1995).
    \18\ 65 FR 69763 (November 20, 2000).
    \19\ 80 FR 26041 (May 6, 2015).
---------------------------------------------------------------------------

    The initial LSI regulation specified that the certified gasoline 
test fuels for LSI engines were either Indolene or CaRFG2. EPA granted 
California a new authorization for the initial LSI regulation on May 
15, 2006.\20\
---------------------------------------------------------------------------

    \20\ 71 FR 29623 (May 23, 2006).
---------------------------------------------------------------------------

    The initial CARB Marine SI Engine regulation applicable to 2001 and 
later model year outboard SI marine engines and personal watercraft 
engines established test procedures that were virtually identical to 
those in the federal SI Marine Engine regulations. In 2002 CARB adopted 
regulations establishing exhaust emission standards and related 
certification and test procedures for 2003 and later model year SI 
inboard and sterndrive marine engines that specified the same 
certification test fuels as those applicable to outboard engines and 
personal water craft.\21\ EPA granted California an authorization for 
these regulations in 2007.\22\
---------------------------------------------------------------------------

    \21\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 9.
    \22\ 72 FR 14546 (March 28, 2007).
---------------------------------------------------------------------------

    EPA granted California a new authorization for the initial OHRV 
regulation, which included initial test fuel certification 
requirements, in 1996,\23\ and confirmed that 1996 amendments to the 
OHRV regulation were within the scope of the initial authorization in 
2000.\24\
---------------------------------------------------------------------------

    \23\ 61 FR 69093 (December 31, 1996).
    \24\ 65 FR 69763 (November 20, 2000).
---------------------------------------------------------------------------

D. California's Authorization Request

    By letter dated June 13, 2014, CARB submitted a request to EPA 
pursuant to section 209(e) of the Act for authorization of its 2011 
SORE amendments, 2011 Tier 4 amendments, and 2011 Certification Test 
Fuel amendments (with all three sets of amendments collectively known 
as the ``2011 Amendments''). CARB sought EPA's confirmation that the 
2011 Amendments fell within the scope of EPA's previous authorizations, 
or, in the alternate, a full authorization for those amendments.
1. 2011 SORE Amendments
    CARB approved the 2011 SORE amendments at issue on December 16, 
2011, and adopted them on October 25, 2012.\25\ The 2011 SORE 
amendments became operative on January 10, 2013.\26\ The 2011 SORE 
amendments modify California's existing SORE test procedures by 
aligning California procedures to be consistent with recent amendments 
by EPA to the federal certification and exhaust emission testing 
requirements at 40 CFR parts 1054 and 1065.\27\ Part 1054 contains 
certification protocols, production-line testing requirements, credit-
generation allowances, and other related provisions applicable to 
federally certified engines. Since CARB had previously promulgated 
California-specific versions of these provisions for SORE engines, the 
2011 SORE amendments adopted the language of CFR part 1054, but with 
modifications that substitute California's specific emission standards, 
production-line testing requirements and credit-allowances for the 
corresponding federal provisions.\28\ Part 1065 specifies the ``state-
of-the-art'' testing equipment, systems, and processes that must be 
utilized in conducting emissions testing of applicable engines. The 
2011 SORE amendments align California test procedures for 2013 and 
later model year engines with the requirements specified in Part 
1065.\29\
---------------------------------------------------------------------------

    \25\ See EPA-HQ-OAR-2014-0535-0008, ``Enclosure 5 CARB 
Resolution 11-41'', and EPA-HQ-OAR-2014-0535-0009, ``Enclosure 6 
Executive Order R-12-005''.
    \26\ Id.
    \27\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011''.
    \28\ Id.at 11.
    \29\ Id.at 11.
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2. 2011 Tier 4 Amendments
    CARB approved the Tier 4 amendments at issue on December 16, 2011, 
and adopted them on October 25, 2012.\30\ The 2011 Tier 4 amendments 
became operative on January 10, 2013.\31\ The 2011 Tier 4 amendments 
enhance the harmonization of CARB's exhaust emission requirements for 
new off-road CI engines with the corresponding federal emissions 
requirements for nonroad CI engines set forth in CFR parts 1039, 1065, 
and 1068.\32\ EPA most recently amended these Parts in 2011.\33\ The 
2011 Tier 4 amendments correct clerical errors, standardize measurement 
specifications, calibrations, and instrumentation, remove unnecessarily 
burdensome reporting requirements, and provide additional compliance 
flexibility options.\34\ The 2011 Tier 4 amendments also incorporate 
EPA's anti-stockpiling provisions, which help ensure the realization of 
projected emission benefits, and also establish a new interim Tier 4 
combined hydrocarbon plus oxides of nitrogen emission standard that has 
the potential

[[Page 76974]]

to provide additional emission benefits.\35\
---------------------------------------------------------------------------

    \30\ See EPA-HQ-OAR-2014-0535-0008, ``Enclosure 5 CARB 
Resolution 11-41'', and EPA-HQ-OAR-2014-0535-0009, ``Enclosure 6 
Executive Order R-12-005''.
    \31\ Id.
    \32\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 12.
    \33\ 76 FR 37977 (June 28, 2011).
    \34\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 13-18.
    \35\ Id. at 2.
---------------------------------------------------------------------------

3. 2011 Certification Test Fuel Amendments
    The 2011 Certification Test Fuel amendments modify the 
certification test fuel requirements for off-road spark ignition, 
gasoline-fueled engines to allow the use of 10-percent ethanol-blend of 
gasoline (E10) as a certification fuel. The use of the E10 
certification fuel is allowed as an option for certification exhaust 
emission testing of new gasoline-fueled SORE, LSI, Recreational Marine, 
and OHRV off-road categories from the 2013 through 2019 model years, 
and is mandatory for certification exhaust emission testing of these 
categories beginning with the 2020 model year.\36\
---------------------------------------------------------------------------

    \36\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 18.
---------------------------------------------------------------------------

E. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts any state, or 
political subdivision thereof, from adopting or attempting to enforce 
any standard or other requirement relating to the control of emissions 
for certain new nonroad engines or vehicles.\37\ For all other nonroad 
engines (including ``non-new'' engines), states generally are preempted 
from adopting and enforcing standards and other requirements relating 
to the control of emissions, except that section 209(e)(2)(A) of the 
Act requires EPA, after notice and opportunity for public hearing, to 
authorize California to adopt and enforce such regulations unless EPA 
makes one of three enumerated findings. Specifically, EPA must deny 
authorization if the Administrator finds that (1) California's 
protectiveness determination (i.e., that California standards will be, 
in the aggregate, as protective of public health and welfare as 
applicable federal standards) is arbitrary and capricious, (2) 
California does not need such standards to meet compelling and 
extraordinary conditions, or (3) the California standards and 
accompanying enforcement procedures are not consistent with section 209 
of the Act.
---------------------------------------------------------------------------

    \37\ States are expressly preempted from adopting or attempting 
to enforce any standard or other requirement relating to the control 
of emissions from new nonroad engines which are used in construction 
equipment or vehicles or used in farm equipment or vehicles and 
which are smaller than 175 horsepower. Such express preemption under 
section 209(e)(1) of the Act also applies to new locomotives or new 
engines used in locomotives.
---------------------------------------------------------------------------

    On July 20, 1994, EPA promulgated a rule interpreting the three 
criteria set forth in section 209(e)(2)(A) that EPA must consider 
before granting any California authorization request for nonroad engine 
or vehicle emission standards.\38\ EPA revised these regulations in 
1997.\39\ As stated in the preamble to the 1994 rule, EPA historically 
has interpreted the consistency inquiry under the third criterion, 
outlined above and set forth in section 209(e)(2)(A)(iii), to require, 
at minimum, that California standards and enforcement procedures be 
consistent with section 209(a), section 209(e)(1), and section 
209(b)(1)(C) of the Act.\40\
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    \38\ See ``Air Pollution Control; Preemption of State Regulation 
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20, 
1994).
    \39\ See ``Control of Air Pollution: Emission Standards for New 
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts; 
Preemption of State Regulation for Nonroad Engine and Vehicle 
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997). 
The applicable regulations are now found in 40 CFR part 1074, 
subpart B, section 1074.105.
    \40\ See supra note 12. EPA has interpreted 209(b)(1)(C) in the 
context of section 209(b) motor vehicle waivers.
---------------------------------------------------------------------------

    In order to be consistent with section 209(a), California's nonroad 
standards and enforcement procedures must not apply to new motor 
vehicles or new motor vehicle engines. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests under section 209(b)(1)(C). That provision 
provides that the Administrator shall not grant California a motor 
vehicle waiver if she finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the Act. Previous decisions granting waivers and 
authorizations have noted that state standards and enforcement 
procedures will be found to be inconsistent with section 202(a) if (1) 
there is inadequate lead time to permit the development of the 
necessary technology, giving appropriate consideration to the cost of 
compliance within that time, or (2) the federal and state testing 
procedures impose inconsistent certification requirements.
    In light of the similar language of sections 209(b) and 
209(e)(2)(A), EPA has reviewed California's requests for authorization 
of nonroad vehicle or engine standards under section 209(e)(2)(A) using 
the same principles that it has historically applied in reviewing 
requests for waivers of preemption for new motor vehicle or new motor 
vehicle engine standards under section 209(b).\41\ These principles 
include, among other things, that EPA should limit its inquiry to the 
three specific authorization criteria identified in section 
209(e)(2)(A),\42\ and that EPA should give substantial deference to the 
policy judgments California has made in adopting its regulations. In 
previous waiver decisions, EPA has stated that Congress intended EPA's 
review of California's decision-making be narrow. EPA has rejected 
arguments that are not specified in the statute as grounds for denying 
a waiver:
---------------------------------------------------------------------------

    \41\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075, 
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of 
permissible construction in analogizing Sec.  209(e) on nonroad 
sources to Sec.  209(a) on motor vehicles.''
    \42\ See supra note 12, at 36983.

    The law makes it clear that the waiver requests cannot be denied 
unless the specific findings designated in the statute can properly 
be made. The issue of whether a proposed California requirement is 
likely to result in only marginal improvement in California air 
quality not commensurate with its costs or is otherwise an arguably 
unwise exercise of regulatory power is not legally pertinent to my 
decision under section 209, so long as the California requirement is 
consistent with section 202(a) and is more stringent than applicable 
Federal requirements in the sense that it may result in some further 
reduction in air pollution in California.\43\
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    \43\ ``Waiver of Application of Clean Air Act to California 
State Standards,'' 36 FR 17458 (August 31, 1971). Note that the more 
stringent standard expressed here, in 1971, was superseded by the 
1977 amendments to section 209, which established that California 
must determine that its standards are, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards. In the 1990 amendments to section 209, Congress 
established section 209(e) and similar language in section 
209(e)(1)(i) pertaining to California's nonroad emission standards 
which California must determine to be, in the aggregate, at least as 
protective of public health and welfare as applicable federal 
standards.

This principle of narrow EPA review has been upheld by the U.S. Court 
of Appeals for the District of Columbia Circuit.\44\ Thus, EPA's 
consideration of all the evidence submitted concerning an authorization 
decision is circumscribed by its relevance to those questions that may 
be considered under section 209(e)(2)(A).
---------------------------------------------------------------------------

    \44\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 
1095 (D.C. Cir. 1979) (``MEMA I'').
---------------------------------------------------------------------------

F. Within-the-Scope Determinations

    If California amends regulations that were previously authorized by 
EPA, California may ask EPA to determine that the amendments are within 
the scope of the earlier authorization. A within-the-scope 
determination for such

[[Page 76975]]

amendments is permissible without a full authorization review if three 
conditions are met. First, the amended regulations must not undermine 
California's previous determination that its standards, in the 
aggregate, are as protective of public health and welfare as applicable 
federal standards. Second, the amended regulations must not affect 
consistency with section 209 of the Act, following the same criteria 
discussed above in the context of full authorizations. Third, the 
amended regulations must not raise any ``new issues'' affecting EPA's 
prior authorizations.\45\
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    \45\ See ``California State Motor Vehicle Pollution Control 
Standards; Amendments Within the Scope of Previous Waiver of Federal 
Preemption,'' 46 FR 36742 (July 15, 1981).
---------------------------------------------------------------------------

G. Deference to California

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

    It is worth noting . . . I would feel constrained to approve a 
California approach to the problem which I might also feel unable to 
adopt at the federal level in my own capacity as a regulator. The 
whole approach of the Clean Air Act is to force the development of 
new types of emission control technology where that is needed by 
compelling the industry to ``catch up'' to some degree with newly 
promulgated standards. Such an approach . . . may be attended with 
costs, in the shape of reduced product offering, or price or fuel 
economy penalties, and by risks that a wider number of vehicle 
classes may not be able to complete their development work in time. 
Since a balancing of these risks and costs against the potential 
benefits from reduced emissions is a central policy decision for any 
regulatory agency under the statutory scheme outlined above, I 
believe I am required to give very substantial deference to 
California's judgments on this score.\46\
---------------------------------------------------------------------------

    \46\ 40 FR 23103-23104 (May 28, 1975); see also LEV I Decision 
Document at 64 (58 FR 4166 (January 13, 1993)).

    EPA has stated that the text, structure, and history of the 
California waiver provision clearly indicate both a congressional 
intent and appropriate EPA practice of leaving the decision on 
``ambiguous and controversial matters of public policy'' to 
California's judgment.\47\
---------------------------------------------------------------------------

    \47\ 40 FR 23104; 58 FR 4166.
---------------------------------------------------------------------------

    The House Committee Report explained as part of the 1977 amendments 
to the Clean Air Act, where Congress had the opportunity to restrict 
the waiver provision, it elected instead to explain California's 
flexibility to adopt a complete program of motor vehicle emission 
controls. The amendment is intended to ratify and strengthen the 
California waiver provision and to affirm the underlying intent of that 
provision, i.e., to afford California the broadest possible discretion 
in selecting the best means to protect the health of its citizens and 
the public welfare.\48\
---------------------------------------------------------------------------

    \48\ MEMA I, 627 F.2d at 1110 (citing H.R.Rep. No. 294, 95 
Cong., 1st Sess. 301-02 (1977).
---------------------------------------------------------------------------

H. Burden and Standard of Proof

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

    [T]he language of the statute and its legislative history 
indicate that California's regulations, and California's 
determinations that they must comply with the statute, when 
presented to the Administrator are presumed to satisfy the waiver 
requirements and that the burden of proving otherwise is on whoever 
attacks them. California must present its regulations and findings 
at the hearing and thereafter the parties opposing the waiver 
request bear the burden of persuading the Administrator that the 
waiver request should be denied.\49\

    \49\ MEMA I, supra note 19, at 1121.
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The Administrator's burden, on the other hand, is to make a reasonable 
evaluation of the information in the record in coming to the waiver 
decision. As the court in MEMA I stated: ``here, too, if the 
Administrator ignores evidence demonstrating that the waiver should not 
be granted, or if he seeks to overcome that evidence with unsupported 
assumptions of his own, he runs the risk of having his waiver decision 
set aside as `arbitrary and capricious.' '' \50\ Therefore, the 
Administrator's burden is to act ``reasonably.'' \51\
---------------------------------------------------------------------------

    \50\ Id. at 1126.
    \51\ Id. at 1126.
---------------------------------------------------------------------------

    With regard to the standard of proof, the court in MEMA I explained 
that the Administrator's role in a section 209 proceeding is to:

    [. . .] consider all evidence that passes the threshold test of 
materiality and * * * thereafter assess such material evidence 
against a standard of proof to determine whether the parties 
favoring a denial of the waiver have shown that the factual 
circumstances exist in which Congress intended a denial of the 
waiver.\52\
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    \52\ Id. at 1122.

In that decision, the court considered the standards of proof under 
section 209 for the two findings related to granting a waiver for an 
``accompanying enforcement procedure.'' Those findings involve: (1) 
Whether the enforcement procedures impact California's prior 
protectiveness determination for the associated standards, and (2) 
whether the procedures are consistent with section 202(a). The 
principles set forth by the court, however, are similarly applicable to 
an EPA review of a request for a waiver of preemption for a standard. 
The court instructed that ``the standard of proof must take account of 
the nature of the risk of error involved in any given decision, and it 
therefore varies with the finding involved. We need not decide how this 
standard operates in every waiver decision.'' \53\
---------------------------------------------------------------------------

    \53\ Id.
---------------------------------------------------------------------------

    With regard to the protectiveness finding, the court upheld the 
Administrator's position that, to deny a waiver, there must be ``clear 
and compelling evidence'' to show that proposed enforcement procedures 
undermine the protectiveness of California's standards.\54\ The court 
noted that this standard of proof also accords with the congressional 
intent to provide California with the broadest possible discretion in 
setting regulations it finds protective of the public health and 
welfare.\55\
---------------------------------------------------------------------------

    \54\ Id.
    \55\ Id.
---------------------------------------------------------------------------

    With respect to the consistency finding, the court did not 
articulate a standard of proof applicable to all proceedings, but found 
that the opponents of the waiver were unable to meet their burden of 
proof even if the standard were a mere preponderance of the evidence. 
Although MEMA I did not explicitly consider the standards of proof 
under section 209 concerning a waiver request for ``standards,'' as 
compared to a waiver request for accompanying enforcement procedures, 
there is nothing in the opinion to suggest that the court's analysis 
would not apply with equal force to such determinations. EPA's past 
waiver decisions have consistently made clear that: ``[E]ven in the two 
areas concededly reserved for Federal judgment by this legislation--the 
existence of `compelling and extraordinary' conditions and whether the 
standards are technologically feasible--Congress intended that the 
standards of EPA review of the State decision to be a narrow one.'' 
\56\
---------------------------------------------------------------------------

    \56\ See, e.g., ``California State Motor Vehicle Pollution 
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 
28, 1975), at 23103.
---------------------------------------------------------------------------

I. EPA's Administrative Process in Consideration of California's 
Amendment Requests for Authorization

    On November 21, 2014, EPA published a Federal Register notice 
announcing its receipt of California's

[[Page 76976]]

authorization request. In that notice, EPA invited public comment on 
the 2011 SORE amendments, the 2011 Tier 4 amendments, and 2011 
Certification Test Fuel amendments (collectively known as the 2011 
Amendments) and an opportunity to request a public hearing.\57\
---------------------------------------------------------------------------

    \57\ See ``California State Nonroad Engine Pollution Control 
Standards; Small Off-Road Engines Regulations; Tier 4 Off-Road 
Compression-Ignition Regulations; Exhaust Emission Certification 
Test Fuel for Off-Road Spark-Ignition Engines, Equipment, and 
Vehicles Regulations; Request for Within-the-Scope and Full 
Authorization; Opportunity for Public Hearing and Comment,'' 79 FR 
69465 (November 21, 2014).
---------------------------------------------------------------------------

    EPA requested comment on the 2011 Amendments, as follows: (1) 
Should California's amendments be considered under the within-the-scope 
analysis, or should they be considered under the full authorization 
criteria?; (2) If those amendments should be considered as a within-
the-scope request, do they meet the criteria for EPA to grant a within-
the-scope confirmation?; and (3) If the amendments should not be 
considered under the within-the-scope analysis, or in the event that 
EPA determines they are not within the scope of the previous 
authorization, do they meet the criteria for making a full 
authorization determination?
    EPA received no written comments. Additionally, EPA received no 
requests for a public hearing. Consequently, EPA did not hold a public 
hearing.

II. Discussion

A. California's 2011 SORE Amendments

    The 2011 SORE amendments incorporate provisions of 40 Code of 
Federal Regulations (CFR) Parts 1054 and 1065 into the test procedures 
applicable to 2013 and later model year engines, and incorporate 
citations to the newly modified test procedures. The 2011 SORE 
amendments dealt with three specific topics: (1) Improved alignment 
with 40 CFR part 1054; (2) improved alignment with 40 CFR part 1065; 
and (3) amendments to CA-Part 1065 that maintain differences between 
California and EPA test procedures. CARB asserts that the 2011 SORE 
amendments do not affect the stringency of the exhaust emission 
standards and associated test procedures for SORE engines.
1. Improved Alignment With Part 1054
    Part 1054 contains certification protocols, production-line testing 
requirements, credit-generation allowances, and other related 
provisions applicable to federally certified engines. Since CARB had 
already promulgated California-specific versions of these provisions 
for SORE engines, the 2011 SORE amendments adopted language similar to 
Part 1054, but with modifications that substitute California's specific 
emission standards, production-line testing requirements and credit-
generations allowances for the corresponding federal provisions.\58\
---------------------------------------------------------------------------

    \58\ See EPA-HQ-OAR-2014-0535-0003, ``2013-13-14 Auth Support 
Document SORE 2011'' at 11.
---------------------------------------------------------------------------

2. Improved Alignment With Part 1065
    Part 1065 specifies the ``state-of-the-art'' testing equipment, 
systems, and processes that must be utilized in conducting emissions 
testing of applicable engines. The 2011 SORE amendments largely align 
the test procedures applicable to 2013 and later model year engines 
with the requirements specified in Part 1065, and will therefore 
prevent the need for manufacturers to conduct separate emissions tests 
for certifying engines with EPA and CARB.\59\ Additionally, CARB states 
that a majority of engine manufacturers had already upgraded their test 
equipment in order to be compliant with Part 1065, and not aligning 
California and federal test procedures would mean that the use of the 
existing California test procedures would become increasingly 
impractical for manufacturers, independent testing facilities, and 
CARB.\60\ CARB adopted Part 1065 into the SORE test procedures except 
for the modifications discussed below.
---------------------------------------------------------------------------

    \59\ Id. at 11.
    \60\ Id.
---------------------------------------------------------------------------

3. Amendments to CA-Part 1065 that Maintain Differences between 
California and EPA Test Procedures
    The 2011 SORE amendments maintain California-specific requirements 
applicable to new 2013 and later model year SORE engines in the 
following areas: Allowance for supplemental engine cooling, measurement 
of particulate matter (PM) emissions from two-stroke engines, and 
exhaust emission certification test fuel requirements (discussed later 
in the decision).\61\ CARB believes that the existing California 
provisions in the SORE test procedures regarding supplemental cooling 
are more representative of in-use conditions than the corresponding 
federal provision, and are needed to maintain the stringency of 
California's existing test procedures. The California provisions 
require that manufacturers justify the need for and the use of any 
auxiliary fans used to provide supplemental cooling, and further 
require that manufacturers demonstrate that the supplemental cooling is 
representative of in-use engine operation. CARB's SORE emission 
standards include a PM emissions standard for two-stroke engines while 
EPA's small nonroad engine standards do not.\62\ California's existing 
regulations provide manufacturers the option of demonstrating 
compliance with the PM standard for two-stroke engines by using 
measured hydrocarbon emissions as a surrogate in lieu of determining 
actual PM emission levels.\63\ CARB determined that extending this 
option was warranted as it provides manufacturers flexibility in 
conducting the testing required for demonstrating emissions compliance, 
without affecting the stringency of the current PM emission standards.
---------------------------------------------------------------------------

    \61\ Id. at 12.
    \62\ Id.
    \63\ Id.
---------------------------------------------------------------------------

B. California's 2011 Tier 4 Amendments

    The 2011 Tier 4 amendments enhance the harmonization of CARB's 
exhaust emission requirements for new off-road CI engines with the 
corresponding federal emissions requirements for nonroad CI engines in 
40 CFR parts 1039, 1065, and 1068, as most recently amended by EPA in 
2011.\64\ CARB states that the amendments correct clerical errors, 
standardize measurement specifications, calibrations, and 
instrumentation, remove unnecessarily burdensome reporting 
requirements, and provide additional compliance flexibility options 
without sacrificing air quality benefits.\65\ The 2011 Tier 4 
amendments dealt with three specific areas: (1) Modifications to Tier 4 
off-road CI exhaust emission standards; (2) updated test procedures; 
and (3) amendments that maintain needed differences between California 
and EPA Nonroad CI programs.
---------------------------------------------------------------------------

    \64\ Id. at 13.
    \65\ Id.
---------------------------------------------------------------------------

1. Modifications to Tier 4 Off-Road CI Exhaust Emission Standards
    The 2011 Tier 4 amendments aligned with the federal alternate 
combined oxides of nitrogen and non-methane hydrocarbons (ALT 
NOX + NMHC) standards and the corresponding family emission 
limit (FEL) caps for Tier 4 engines ranging from 56 kW through 560 
kW.\66\ The amendments corrected clerical errors that unintentionally 
limited the years of applicability for several alternative FEL caps 
erroneously identified in the regulations and test procedures. The 
California Tier 4 Off-Road CI regulation and the federal Tier

[[Page 76977]]

4 nonroad CI regulation allowed engine manufacturers to continue 
producing a small number of Tier 3 off-road CI engines using emission 
credits after the Tier 4 standards began.\67\ However, both the 
original EPA and California regulations inadvertently hindered 
manufacturers from using these certification allowances because the 
Tier 4 averaging programs did not allow manufacturers to show 
compliance with the existing 0.19 g/kW-hr NMHC standard using credits. 
To correct this, the 2011 Tier 4 amendments establish new Tier 4 
alternative combined NOX + NMHC standards for off-road CI 
engines that align with the amendments to EPA's nonroad CI regulation 
in 2007, which similarly provides manufacturers the option to use 
credits to show compliance with the new alternative NOX + 
NMHC standards for engines ranging from 56 kW through 560 kW.\68\ The 
2011 Tier 4 amendments also revise the start dates for the ALT 20% 
NOX FEL caps to correct an inconsistency in a regulatory 
table regarding the period of applicability for certifying engines to 
the ALT 20% NOX FEL caps that stated the period was only one 
or two years to the correct four-year period.\69\
---------------------------------------------------------------------------

    \66\ Id.
    \67\ Id.
    \68\ Id.
    \69\ Id. at 14.
---------------------------------------------------------------------------

2. Updated Test Procedures
    The 2011 Tier 4 amendments primarily revise California's Tier 4 
off-road CI engine test procedures to align them with the modifications 
to the corresponding federal nonroad CI engine test procedures that 
have been enacted by EPA since 2005 to improve the accuracy and 
precision of the measurement and reporting of emissions data. The new 
California off-road CI engine test procedures are comprised of three 
separate documents that largely incorporate provisions of the federal 
test procedures contained in 40 CFR parts 1039, 1065, and 1068, but 
that also incorporate several California-specific modifications.\70\
---------------------------------------------------------------------------

    \70\ Id.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments incorporate EPA's June 28, 2011 
modifications to Part 1039 into the new test procedure entitled 
``California Exhaust Emission Standards and Test Procedures for New 
2011 and Later Tier 4 Off-Road Compression Ignition Engines, Part I-
D''. Included among the alignments are modification of the criterion 
for selecting engine families regarding engine cylinder arrangement 
(Sec.  1039.230(b)(7)), removal of unnecessary and/or redundant 
labeling and notification instructions regarding the equipment 
manufacturer flexibility program (Sec.  1039.625), correction of 
clerical errors that inadvertently elevated the minimum standard for 
equipment flexibility engines beyond that originally intended (Sec.  
1039.625(e)(3)), and clarification regarding the rounding of Averaging, 
Banking, and Trading credits (Sec.  1039.705(b)).\71\
---------------------------------------------------------------------------

    \71\ Id. at 15.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments deleted CARB's existing CA-Part 1065-
based test procedures and created a brand-new version in Part I-E based 
solely on CARB's modifications to EPA's 40 CFR 1065 as it existed on 
June 28, 2011.\72\ The California alignments with 40 CFR 1065 included 
in the 2011 Tier 4 amendments are provisions for using and calculating 
an optional declared speed value (Sec.  1065.510(f)(3)(i)), and 
provisions regarding the standardization of calculating exhaust 
restriction set points (Sec.  1065.130(h)).\73\
---------------------------------------------------------------------------

    \72\ Id.
    \73\ Id.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments incorporate EPA's modifications to 40 
CFR part 1068 into the new test procedure entitled ``California Exhaust 
Emission Standards and Test Procedures for New 2011 and Later Tier 4 
Off-Road Compression Ignition Engines, Part I-F''. The 2011 Tier 4 
amendments included alignments regarding allowance for distributors to 
replace incorrect labels prior to sale of the engine to an ultimate 
purchaser (Sec.  1068.101(b)(7)(i)(D)), incorporation of provisions 
related to the duration and applicability of Executive Orders (Sec.  
1068.103(c)), incorporation and clarification of anti-stockpiling 
provisions (Sec.  1068.103 and 105), revisions to the label content for 
replacement engines (Sec.  1068.240), clarification of the provisions 
for shipping engines independently of required after treatment and for 
delegated final assembly (Sec.  1068.260 and 261), clarification that 
defect reporting applies only to regulated pollutants and revision of 
thresholds for filing reports (Sec.  1068.501), and incorporation of 
the federal definition for ``Date of Manufacture'' (Sec.  
1068.801).\74\
---------------------------------------------------------------------------

    \74\ Id. at 16.
---------------------------------------------------------------------------

    The 2011 Tier 4 amendments also included a new section that 
establishes an anti-stockpiling provision that is consistent with 
recently added federal provisions in 40 CFR 1068.103 and 1068.105 which 
address intentional over-production of engines prior to a year in which 
a change in the emissions standards occur.\75\ The new section makes 
clear that manufacturers cannot deviate from normal production and 
inventory practices to circumvent the regulations.\76\
---------------------------------------------------------------------------

    \75\ Id.
    \76\ Id.
---------------------------------------------------------------------------

3. Amendments That Maintain Needed Differences Between California and 
EPA Nonroad CI Programs
    The 2011 Tier 4 amendments also maintain differences from the 
federal provisions that are needed to support California's unique air 
quality programs. These differences primarily consist of documentation 
requirements. CARB states that none of the differences present any 
technical obstacles for off-road engine manufacturers.\77\ The 
differences include: enhanced emissions control labeling beyond that 
required on federal labels to include information such as the 
certification power category or an explicit designation of the 
emissions tier to which the engine conforms; removing the prior 
assurance to manufacturers that preliminary approvals of certification 
will not usually be reversed absent the discovery of new information 
contrary to the findings that resulted in the preliminary approval; not 
exempting a small number of replacement engines from engine labeling 
requirements; and not incorporating EPA's amended definitions of 
``engine,'' which define an engine to be an engine block with an 
installed crankshaft and ``partially complete engine'' as defined in 40 
CFR 1068.30 and 1068.240.\78\
---------------------------------------------------------------------------

    \77\ Id. at 17.
    \78\ Id. at 17, 18.
---------------------------------------------------------------------------

C. California's 2011 Certification Test Fuel Amendments

    The 2011 Certification Test Fuel amendments modify the 
certification test fuel requirements for off-road SI, gasoline-fueled 
engines to allow the use of 10-percent ethanol-blend of gasoline (E10) 
as a certification fuel.\79\ The use of the E10 certification test fuel 
is allowed as an option for certification exhaust emission testing of 
new gasoline-fueled LSI, SORE, OHRV, and Recreational Marine off-road 
categories from the 2013 through the 2019 model years, and is mandatory 
for certification exhaust emission testing of these categories 
beginning with the 2020 model year.\80\ The 2011 Certification Test 
Fuel amendments also provide manufacturers the option of using other 
renewable fuel blends that have been certified by CARB as yielding test

[[Page 76978]]

results equivalent to, or more stringent than those resulting from E10, 
and which are appropriate for the certification of small off-road 
engines beginning with the 2013 model year.\81\ The amendments maintain 
test fuel consistency between on-road motor vehicles and most of the 
off-road categories and establish complete consistency between the off-
road categories' certification test fuels and commercially available 
fuels.\82\
---------------------------------------------------------------------------

    \79\ Id. at 18.
    \80\ Id.
    \81\ Id.
    \82\ Id.
---------------------------------------------------------------------------

D. Within-the-Scope Analysis

    California requested that the Administrator confirm that the 2011 
Amendments detailed above are within the scope of previously granted 
authorizations.\83\ California asserted that all three sets of 2011 
amendments met all three within-the-scope criteria, i.e. that the 
amendments: (1) Do not undermine the original protectiveness 
determination underlying California's regulations; (2) do not affect 
the consistency of the regulations with section 202(a); and (3) do not 
raise any new issues affecting the prior authorizations.\84\ We 
received no adverse comments or evidence suggesting a within-the-scope 
analysis is inappropriate, or that any of the three sets of 2011 
amendments fail to meet any of the three criteria for within-the-scope 
confirmation.
---------------------------------------------------------------------------

    \83\ This request excluded the amendment that establishes the 
Tier 4 alternative NOx + NMHC standards for off-road CI engines 
because this amendment will only be utilized by manufacturers that 
have accumulated emission credits. Such standards do not constitute 
mandatory compliance requirements, but instead provide a compliance 
alternative and do not require authorization. See Motor and 
Equipment Mfrs. Ass'n, Inc. v. Environmental Protection Agency (MEMA 
II), 627 F.2d 1128, 1132 (D.C. Cir. 1979)(a regulatory compliance 
option is only a mandate that can result in a denial of a waiver if 
the regulation does not specify another technically feasible 
compliance option.)
    \84\ Id. at 21.
---------------------------------------------------------------------------

    In regard to the first within-the-scope criterion, CARB found that 
the 2011 Amendments did not cause the California emissions standards, 
in the aggregate, to be less protective of public health and welfare 
than applicable federal standards. California asserts their 
protectiveness determination is not arbitrary or capricious, and that 
the elements of the 2011 Amendments do not affect the stringency of the 
previously authorized SORE or Tier 4 Off-Road CI emission standards and 
associated test procedures, or the other regulations and test 
procedures affected by these amendments (LSI, Recreational Marine, and 
OHRV).\85\ CARB asserts that, therefore, the subject regulations and 
test procedures continue to be at least as protective of public health 
and welfare as the federal nonroad emissions standards and test 
procedures.
---------------------------------------------------------------------------

    \85\ Id.
---------------------------------------------------------------------------

    Based on the record before us and in the absence of any evidence to 
the contrary, we cannot find that California's protectiveness 
determination regarding the implementation of 2011 Amendments is 
arbitrary or capricious.
    In regard to the second within-the-scope criterion, the 2011 
Amendments do not attempt to regulate new motor vehicles or motor 
vehicles engines and so are consistent with section 209(a). They 
likewise did not attempt to regulate any of the permanently preempted 
engines or vehicles, and so are consistent with section 209(e)(1). 
Finally, they did not cause any technological feasibility issues for 
manufacturers or cause inconsistency between state and federal test 
procedures, per section 209(b)(1)(C). No manufacturer raised technical 
feasibility or lead time concerns regarding the 2011 Amendments.\86\ 
Additionally, the 2011 Amendments are later than EPA's corresponding 
amendments to the federal nonroad regulations and associated test 
procedures. Given these facts, EPA cannot find that the 2011 Amendments 
are not technically feasible or do not provide sufficient lead 
time.\87\ CARB enacted the 2011 Amendments at the behest of 
manufacturers who had already implemented modifications to their 
emissions facilities that are required by EPA's corresponding 
amendments to the federal nonroad regulations. No technical feasibility 
or lead time concerns were raised regarding the elements of the 2011 
Certification Test Fuel amendments either.\88\ These amendments 
establish complete consistency between the certification and the 
commercially available fuels for off-road engines subject to 
California's SORE, LSI, Recreational Marine, and OHRV regulations.\89\ 
Manufacturers of off-road spark-ignition, gasoline-fueled engines have 
needed to account for the usage of E10 in their engines since December 
31, 2009, and those engines have been capable of being emissions tested 
using E10 by that date, which precedes the 2020 model-year requirement 
to use E10 by ten years.\90\
---------------------------------------------------------------------------

    \86\ Id. at 22.
    \87\ Id.
    \88\ Id.
    \89\ Id. at 23.
    \90\ Id.
---------------------------------------------------------------------------

    The 2011 Amendments present no issue of incompatibility between 
California and federal test procedures, as they essentially harmonize 
California's test procedures associated with the SORE, Off-Road CI 
Engine, LSI, Recreational Marine, and OHRV regulations with the 
corresponding federal test procedures. The corresponding federal 
regulations for such engines have already designated E10 as a test fuel 
for exhaust emissions testing, so the amendments do not impose 
inconsistent certification requirements so as to make manufacturers 
unable to meet both California and federal requirements with one test 
vehicle or engine.\91\
---------------------------------------------------------------------------

    \91\ Id.
---------------------------------------------------------------------------

    In regard to the third within-the-scope criterion, California 
stated that it is not aware of any new issues presented by the 2011 
Amendments that affect the previously granted authorizations for the 
SORE, Off-Road CI Engine, LSI, Recreational Marine, or OHRV 
regulations, and EPA has received no evidence to the contrary.\92\ We 
therefore do not find any new issues raised by the amendments.
---------------------------------------------------------------------------

    \92\ Id.
---------------------------------------------------------------------------

    Having received no contrary evidence regarding these amendments, we 
find that California has met the three criteria for a within-the-scope 
authorization approval, and the 2011 Amendments are confirmed as within 
the scope of previous EPA authorizations of California's SORE, Off-Road 
CI Engine, LSI, Recreational Marine, or OHRV regulations.

III. Decision

    The Administrator has delegated the authority to grant California 
section 209(e) authorizations to the Assistant Administrator for Air 
and Radiation. After evaluating the 2011 amendments to CARB's SORE 
regulations, Tier 4 Off-Road CI regulations, and Exhaust Emission 
Certification Test Fuel for Off-Road Spark-Ignition Engines, Equipment, 
and Vehicles regulations described above and CARB's submissions for EPA 
review, EPA is taking the following actions.
    First, EPA confirms that California's 2011 amendments modifying its 
SORE regulations is within the scope of prior authorizations. Second, 
EPA confirms that California's amendment modifying its Tier 4 Off-Road 
CI regulations is within the scope of prior authorizations. Third, EPA 
confirms that California's amendment modifying its Exhaust Emission 
Certification Test Fuel for Off-Road Spark-Ignition Engines,

[[Page 76979]]

Equipment, and Vehicles regulations is within the scope of prior 
authorizations.
    This decision will affect persons in California and those 
manufacturers and/or owners/operators nationwide who must comply with 
California's requirements. In addition, because other states may adopt 
California's standards for which a section 209(e)(2)(A) authorization 
has been granted if certain criteria are met, this decision would also 
affect those states and those persons in such states. See CAA section 
209(e)(2)(B). For these reasons, EPA determines and finds that this is 
a final action of national applicability, and also a final action of 
nationwide scope or effect for purposes of section 307(b)(1) of the 
Act. Pursuant to section 307(b)(1) of the Act, judicial review of this 
final action may be sought only in the United States Court of Appeals 
for the District of Columbia Circuit. Petitions for review must be 
filed by February 9, 2016. Judicial review of this final action may not 
be obtained in subsequent enforcement proceedings, pursuant to section 
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

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

    Dated: December 1, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-31189 Filed 12-10-15; 8:45 am]
 BILLING CODE 6560-50-P

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