[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Notices]
[Pages 26032-26041]
[FR Doc No: 2015-10632]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2013-0024; FRL 9927-29-OAR]

California State Nonroad Engine Pollution Control Standards;
Amendments to Spark Ignition Marine Engine and Boat Regulations; 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 (CARB) request for authorization of
California's amendments to its Spark Ignition Marine Engine and Boat
regulations (2008 amendments). EPA's decision also confirms that
certain of the 2008 amendments are within the scope of prior EPA
authorizations. The 2008 amendments apply to spark ignition marine
outboard motors, personal watercraft, and stern drive and inboard
engines subject to California emissions regulations. This decision is
issued under the authority of the Clean Air Act (CAA or Act).

DATES: Petitions for review must be filed by July 6, 2015.

ADDRESSES: EPA has established a docket for this Notice of Decision
under Docket ID EPA-HQ-OAR-2013-0024. 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 from 8:30 a.m. to 4:30
p.m.; Monday through Friday, excluding legal holidays. The telephone
number for the Reading Room is<PHONE_NUMBER>. The Air and Radiation
Docket and Information Center's Web site is http://www.epa.gov/oar/docket.html. The email address for the Air and Radiation Docket is<EMAIL_ADDRESS>the telephone number is<PHONE_NUMBER>, and the
fax number is<PHONE_NUMBER>. 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-2013-0024 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: Julian Davis, Attorney-Advisor,
Compliance Division, Office of Transportation and Air Quality, U.S.
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105. Telephone:<PHONE_NUMBER>. Fax:<PHONE_NUMBER>. Email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    By letter dated November 30, 2012, CARB submitted a request to EPA
for authorization of amendments to the California Spark Ignition (SI)
Marine Engine and Boat regulations \1\ (Marine SI regulations) pursuant
to section 209(e) of the CAA (2008 amendments).\2\ The 2008 amendments
were adopted by CARB on June 24, 2008, and became operative state law
on August 19, 2009.\3\ The 2008 amendments update and clarify
regulations California adopted in 1998, 2001, and 2006.\4\ CARB refers
to these regulations collectively as the Marine Spark Ignition Engine
regulations (Marine SI regulations).
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    \1\ 13 California Code of Regulations (CCR), sections 2111,
2112, Appendix A therein, 2139, 2147, 2440, 2441, 2442, 2443.1,
2443.2, 2443.3, 2444.1, 2444.2, 2445.1, 2445.2, 2447, 2474 and 2448.
    \2\ ``Clean Air Act section 209(e)(2) Authorization Support
Document submitted by the California Air Resources Board, November
30, 2012,'' at EPA-HQ-OAR-2013-0024-0006 (Authorization Support
Document).
    \3\ EPA-HQ-OAR-2013-0024-0003.
    \4\ In 2007 EPA granted California authorization to enforce
CARB's marine spark ignition engine regulations for outboard/
personal watercraft (OB/PWC) engines and Tier 1 of the California
inboard/stern drive (IB/SD marine emission standards, see 72 FR
14546 (March 28, 2007). In 2011 EPA granted California authorization
to enforce CARB's second tier (Tier II) standards for spark ignited
inboard and stern drive marine engines, see 76 FR 24872 (May 3,
2011).
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    California's 1998 regulation established exhaust emission standards
for outboard engines and personal watercraft. The 1998 regulation also
established an accelerated

implementation schedule such that California's marine spark ignition
standards would take effect in 2001, compared to a 2006 effective date
for federal marine SI standards. CARB adopted emission standards for
inboard and stern drive engines in 2001 and amended the regulation in
2006 to provide industry with additional flexibility for complying with
the exhaust standards.
    The 2008 amendments considered here address technical issues that
CARB identified as developing between 2006 and 2008, make
clarifications and correct cross-referencing errors among CARB marine
SI provisions, modify or change emission standards and options, and
enhance alignment between the Marine SI regulations and other CARB and
EPA regulations.

A. California's Authorization Request

    The 2008 amendments establish new standards relating to the control
of emissions from marine SI products, clarify procedures, add new
flexibility for marine manufacturers, and/or correct outdated
references in the California regulations. The 2008 amendments package
also includes provisions that CARB deems not preempted by the Act and
that do not require EPA authorization. Those amendments are not part of
California's authorization request and are not included in this
discussion.\5\
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    \5\ Authorization Support Document at 4. EPA takes no position
as to whether such provisions are subject to preemption in section
209(a) of the Act.
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    California requested EPA perform two types of review. First, CARB
requested an EPA determination that certain provisions of the 2008
amendments are within the scope of the prior authorizations, or in the
alternative, merit full authorization. These provisions include: (1) An
update to California's aftermarket exemption procedures to fix a cross-
referencing error that resulted when CARB adopted new stern drive/
inboard (SD/I) engine standards in 2001; (2) The addition of a new tier
of voluntary emission standards; (3) The addition of three new test
cycle options for certification of high performance engines; (4) A new
option enabling use of portable emission testing systems for
certification testing of high performance SD/I engines produced in very
low volumes; (5) A change allowing optional use of assigned
deterioration factors for high performance engines; (6) New optional
engine discontinuation allowances for manufacturers of SD/I engines;
(7) New hardship relief and compliance assistance petition processes;
(8) Revised requirements for marine on-board diagnostics systems; (9)
New replacement engine flexibility; and (10) Modification to exhaust
standards for high performance SD/I engines.\6\
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    \6\ Authorization Support Document at. 3.
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    Second, CARB requested full authorization for amendments that
revise standards or establish new requirements. These provisions
include: (1) Revised total hydrocarbon plus oxides of nitrogen (HC +
NOX) emission standards; (2) Enhanced evaporative emission
controls for high performance SD/I engines; (3) Not-to-exceed limits
for most marine SI engine categories; (4) Revised jet boat engine
standards; and (5) New carbon monoxide emission standards.\7\
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    \7\ Authorization Support Document at 3.
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B. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts any state, or
political subdivision thereof, from adopting or attempting to enforce
any standard or other requirement relating to the control of emissions
for certain new nonroad engines or vehicles.\8\ For all other nonroad
engines, states generally are preempted from adopting and enforcing
standards and other requirements relating to the control of emissions.
Section 209(e)(2), however, requires the Administrator, after notice
and opportunity for public hearing, to authorize California to adopt
and enforce standards and other requirements relating to the control of
emissions from such vehicles or engines if California determines that
California standards will be, in the aggregate, at least as protective
of public health and welfare as applicable Federal standards. However,
EPA shall not grant such authorization if it finds that: (1) The
determination of California is arbitrary and capricious; (2) California
does not need such California standards to meet compelling and
extraordinary conditions; or (3) California standards and accompanying
enforcement procedures are not consistent with [CAA section 209].\9\
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    \8\ 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.
    CAA section 209(e)(1), 42 U.S.C. 7543(e)(1)(A).
    \9\ EPA's review of California regulations under section 209 is
not a broad review of the reasonableness of the regulations or its
compatibility with all other laws. Sections 209(b) and 209(e) of the
Clean Air Act limit EPA's authority to deny California requests for
waivers and authorizations to the three criteria listed therein. As
a result, EPA has consistently refrained from denying California's
requests for waivers and authorizations based on any other criteria.
In instances where the U.S. Court of Appeals has reviewed EPA
decisions declining to deny waiver requests based on criteria not
found in section 209(b), the Court has upheld and agreed with EPA's
determination. See Motor and Equipment Manufacturers Ass'n v.
Nichols, 142 F.3d 449, 462-63, 466-67 (D.C. Cir. 1998), Motor and
Equipment Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20
(D.C. Cir. 1979). See also 78 FR 58090, 58120 (September 20, 2013).
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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.\10\ EPA revised these regulations in
1997.\11\ 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 sections 209(a), 209(e)(1), and 209(b)(1)(C) of the
Act.\12\
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    \10\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
    \11\ 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.
    \12\ 59 FR 36969 (July 20, 1994). 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,\13\ or (2)
the federal and state testing procedures impose inconsistent
certification requirements.\14\
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    \13\ H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).
    \14\ S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).
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    In light of the similar language in 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).\15\ 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),\16\ 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: 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.\17\
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    \15\ 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.''
    \16\ See EPA's Final 209(e) rulemaking at 59 FR 36969, 36983
(July 20, 1994).
    \17\ ``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.
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    This principle of narrow EPA review has been upheld by the U.S.
Court of Appeals for the District of Columbia Circuit.\18\ 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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    \18\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
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C. Within-the-Scope Determinations

    If California amends regulations that have been 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 waiver or authorization decisions.\19\
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    \19\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
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D. Deference to California

    In previous waiver decisions, EPA has recognized that the intent of
Congress in creating a limited review based on the section 209(b)(1)
criteria was to ensure that the federal government did not second-guess
state policy choices. 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.\20\
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    \20\ 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.\21\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
Clean Air Act.\22\ 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.\23\
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    \21\ Id. at 23104; 58 FR 4166 (January 13, 1993).
    \22\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-302 (1977)).
    \23\ Id.
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E. 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 California waiver request 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.\24\
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    \24\ MEMA I, at 1121.

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

capricious.' '' \25\ Therefore, the Administrator's burden is to act
``reasonably.'' \26\
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    \25\ Id. at 1126.
    \26\ 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.\27\
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    \27\ 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.'' \28\
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    \28\ Id.
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    With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\29\ 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.\30\
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    \29\ Id.
    \30\ Id.
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    With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all proceedings, but found
that the opponents of the waiver were unable to meet their burden of
proof even if the standard were a mere preponderance of the evidence.
Although MEMA I did not explicitly consider what the standards of proof
would be 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.'' \31\
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    \31\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
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F. EPA's Administrative Process in Consideration of California's
Request for Authorization of the 2008 Amendments

    The CAA directs EPA to offer an opportunity for public hearing on
authorization requests from California. On August 19, 2013, EPA
published a Federal Register notice announcing an opportunity for
written comment and offering a public hearing on California's request
for authorization of the 2008 amendments.\32\ The request for comments
specifically included, but was not limited to, the following issues.
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    \32\ 78 FR 50412 (August 19, 2013).
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    First, EPA requested comment on whether the 2008 amendments for
which CARB requested a within-the-scope determination should be
considered under a within-the-scope analysis. We specifically requested
comment on whether those amendments, each individually assessed, (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 requirement with section 209 of the Act, or (3) raise any
other new issue affecting EPA's previous authorization determinations.
    Second, EPA requested comment on whether those amendments would
satisfy the criteria for full authorization if they do not meet the
criteria for within-the-scope analysis.
    Third, EPA sought comment on whether the amendments establishing
new emission standards for which CARB requested full authorization
satisfy the full authorization criteria. We specifically requested
comment on whether: (1) California's protectiveness determination for
these amendments (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.
    EPA received no written comments in response to its request, and
received no request for a public hearing. Consequently, EPA did not
hold a public hearing.

II. Discussion

 A. Within-the-Scope Analysis

    CARB's request sought confirmation that 10 of the 2008 amendments
fall within the scope of prior marine SI authorizations. EPA can
confirm that amended regulations are within the scope of previously
granted authorizations if three conditions are met. First, the amended
regulations must not undermine California's 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 the consistency of the Marine SI
regulations with section 209. Third, the amendments must not raise any
``new issues'' affecting the prior authorization. If EPA determines
that the amendments do not meet the requirements for a within-the-scope
confirmation, we then consider whether the amendments satisfy the
criteria for full authorization.
    As described previously, EPA specifically invited comment on the
appropriateness of California's request for within-the-scope versus
full authorization treatment for 10 of the 2008 amendments. We received
no comment on this issue.
    We conducted our analysis by evaluating each of the 10 amendments
against each within-the-scope criterion. The discussion below briefly
summarizes the amendments and then presents our analysis. To avoid
repetition, we present a single explanation when the same analysis and
evaluation applies to multiple amendments, due to their similarity in
design or impact. The amendments fall into three broad categories: (1)
Changes that correct errors or clarify the existing regulation; (2)
changes that add new compliance flexibility for marine SI
manufacturers; and (3) changes that modify or adjust emission standards
or requirements.
1. Amendments That Correct Errors or Clarify the Existing Regulation
    Two amendments fall into this first category. The Aftermarket
Exemption

Procedures Clarification Amendment (aftermarket exemptions amendment)
corrects a cross-referencing error for SD/I parts manufacturers. When
California adopted emission standards for SD/I engines in 2001, a
corresponding adjustment to the aftermarket exemption procedures did
not occur. The 2008 amendments correct this error by removing the
exclusion of eligibility for an aftermarket exemption for SD/I parts.
The change thus aligns provisions covering emission standards,
aftermarket exemptions, and exemption applicability for SD/I engines.
    The Replacement Engine Provisions Amendment (replacement engines
amendment) addresses a practical problem that resulted from
California's previous requirement that new SD/I replacement engines
comply with current model year emission standards. The requirement
unintentionally necessitated use of a catalyst-equipped engine to
replace the engine in an older model boat, even if the boat was not
properly designed to accommodate or support a catalyst-equipped engine.
The replacement engines amendment requires the installation of the
cleanest available engine in a boat without unreasonable modifications
when replacing an existing engine.
    As described above, California's aftermarket exemption amendment
corrects a cross-referencing error by clarifying that the aftermarket
parts exemption applicable to other off-road categories also applies
and is available to SD/I manufacturers. The replacement engine
provisions amendment addresses a conflict in the previous regulations
that unintentionally established infeasible requirements for some SD/I
engine replacements. These amendments simply clarify and codify the
intent of the Marine SI regulations EPA previously authorized. The
modifications therefore do not change the basis for California's
previous protectiveness determination, which EPA in its earlier
authorization found not to be arbitrary or capricious. Based on the
record associated with this request, EPA cannot find that the
aftermarket exemption procedures or replacement engine amendments
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.
    EPA similarly finds that the aftermarket parts and replacement
engines provisions do not affect consistency with section 209 of the
Act. These two amendments do not broaden applicability of the Marine SI
regulations to preempted vehicle or engine categories under sections
209(a) or 209(e)(1). The aftermarket parts amendment involves
correction of a cross-referencing error in California's law that has no
bearing on technological feasibility, cost, or test procedures. The
replacement engines amendment also has no bearing on test procedures
and indeed provides clarification to ensure that the replacement engine
provisions under the Marine SI regulations do not present problems with
technological feasibility or cost. In light of the information
available to us we cannot find these two amendments to be inconsistent
with section 202(a) of the Act.
    Finally, EPA must evaluate whether California's aftermarket parts
amendment or engine replacement amendment raise new issues affecting
previously granted authorizations. These amendments do not change
provisions of the previously authorized regulations, other than to
correct administrative oversights in the regulations that
unintentionally limited implementation flexibility for SD/I
manufacturers. Therefore, we do not find that the amendments impose new
concerns or affect the bases upon which EPA granted the previous
authorization. EPA cannot find that CARB's aftermarket exemptions or
engine replacement amendments raise new issues and consequently cannot
deny CARB's request based on this criterion.
    For all the reasons set forth above, EPA confirms that California's
aftermarket exemptions and replacement engine amendments are within the
scope of the existing authorization.
2. Amendments That Add New Compliance Options, Flexibility, or
Assistance
    California requested within-the-scope confirmation for six
amendments that either broaden availability of compliance assistance or
provide flexibility by establishing new options for manufacturers to
demonstrate compliance with the Marine SI regulations.
    The Compliance Assistance for All Spark-Ignition Marine Engines
Amendment (compliance assistance amendment) gives California's
Executive Officer discretion to issue additional compliance assistance
in cases of extreme hardship for which the engine discontinuation
allowance may not be completely adequate. This assistance would not be
automatically available. Rather, assistance would depend on an
evaluation of whether the manufacturer seeking such assistance
demonstrated that the cause of the hardship was beyond its control,
that the manufacturer had already attempted to resolve the situation by
exercising all existing regulatory provisions, and that the
manufacturer had proposed an effective, implementable and enforceable
plan to prevent any net increase in emissions.
    The Optional Fifth Tier Added to Environmental Label Program
Amendment (environmental label amendment) enables manufacturers to
certify marine SI engines to a new, more stringent tier of voluntary
emission standards and thereby become eligible for a new five-star
emissions rating. The previously authorized regulations provided for a
four-tier environmental label program.
    The Optional Loaded Test Cycle for High Performance Engines
Amendment (HPE test cycle amendment) establishes a new testing option
for manufacturers certifying high performance (>373kW) SD/I engines.
The new, optional HPE test cycle is similar to the steady-state test
cycle that California's previously authorized Marine SI regulations
designate for HPE certification testing. But instead of measuring
emissions at a ``no load'' idle, the test is run at a 15-percent load
(``loaded idle''). High performance engines typically operate at loaded
idle since much of their operation occurs in ``no-wake'' zones near
docks and swimming areas where the speed limit is five mile per hour.
CARB states that the loaded idle operation is therefore more
representative of HPE operation than ``no load'' idle operation.
    The Optional Portable Emissions Measurement System (PEMS) for High
Performance Engines Amendment (PEMS amendment) provides another new
testing option for certification of certain high performance SD/I
engines. This amendment allows manufacturers that produce no more than
75 engines per year nationally to use PEMS equipment to conduct
certification testing. Eligible PEMS units must comply with the same
specifications and verifications as the laboratory instrumentation
described in the marine SI engine test procedures, but with added
flexibility per California's incorporation of the provisions for
portable measurement systems set forth in federal regulations.\33\
---------------------------------------------------------------------------

    \33\ See 40 CFR 1065.901 through 1065.940.
---------------------------------------------------------------------------

    The Optional Assigned Deterioration Factors (DF) for High
Performance Engines Amendment (assigned DF amendment) adds an option
for manufacturers to use assigned DFs to demonstrate at the time of
certification that an engine will meet the full useful

life standards. Emissions deterioration over a HPE's useful life is
expected to be relatively small considering an engine's 50-hour or 150-
hour rebuild frequency. California states that the assignment of
reasonable deterioration factors provides HPE manufacturers a cost
effective and low-risk alternative to the traditional method of
determining deterioration factors.
    The Optional Engine Discontinuation Allowance for SD/I Engines
Amendment (engine discontinuation allowance amendment) establishes an
optional flexibility that allows manufacturers to certify one engine
family per year to current emission certification levels if certifying
one or more other SD/I engine families to more stringent standards to
make up for the emissions deficit. This provision addresses a
compliance obstacle that arose after CARB adopted its 2005 marine
regulations. Engine marinizers (manufacturers who modify existing
automobile engines to operate in a marine environment) encountered the
unanticipated discontinuation of engines by base engine suppliers and
lacked the time necessary to develop reliable emission control systems
for the engines that replace them. California states that the engine
discontinuation allowance amendment offers a solution by providing
marinizers a flexible alternative in limited situations when a
currently compliant engine is no longer available, without a negative
impact on emissions.
    EPA again applied the three-prong test for a within-the-scope
confirmation to the six amendments summarized above.
    First, California asserts that the six amendments, and indeed all
of the 2008 amendments, either reduce emissions or are emissions
neutral. These six amendments in particular provide new, voluntary
flexibilities meant only to enhance the marine SI industry's ability to
comply with CARB's previously authorized regulations. Our analysis
found no reason to conclude that the expanded compliance options would
reduce the protectiveness of California's Marine SI regulations, or
change the basis for California's previous protectiveness
determination, which EPA in its earlier authorization found not to be
arbitrary or capricious. EPA received no comment on this issue.
Therefore, based on the record associated with this request, EPA cannot
find that the compliance assistance, environmental label, HPE test
cycle, PEMS, assigned DF, or engine discontinuation allowance
amendments 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,
    Second, EPA must evaluate whether any of the six amendments render
California's Marine SI regulations inconsistent with section 209 of the
Act. Our review again finds that none of the six amendments broadens,
or attempts to broaden, the applicability of the Marine SI regulations
to cover either motor vehicles or nonroad engines expressly preempted
under section 209(a) or section 209(e)(1). Similarly, the amendments,
all voluntary and designed to provide flexibility, do not present
technologically infeasible requirements relative to lead time or
consistency with federal testing requirements.
    For the foregoing reasons we find that the six amendments discussed
in this section satisfy the second criterion for within-the-scope
confirmation.
    Finally, under the third prong of a within-the-scope analysis, EPA
evaluates whether any of the six amendments constitutes a new issue
affecting the prior authorization. These six amendments either promote
the use of existing compliance flexibilities or create a new
flexibility to assist manufacturers in achieving compliance with
California's standards. They do not establish new requirements or
obligations. As such, EPA cannot find that the amendments constitute
any new issues that would affect our prior authorization of
California's Marine SI regulations, and cannot deny CARB's request
based on this third within-the-scope criterion.
    For all the reasons set forth above, EPA confirms that California's
compliance assistance, environmental label, HPE test cycle, PEMS,
assigned DF, and engine discontinuation allowance amendments are within
the scope of the existing authorization.
3. Amendments That Modify or Change Emission Standards or Requirements
    California also requested within-the-scope confirmation for
amendments that change requirements for some marine onboard diagnostic
systems and that adjust exhaust standards for some SD/I engines.
    The Revised On-Board Diagnostics Marine (OBD-M) Requirements
Amendment (OBD-M amendment) requires the onboard diagnostic system on
all SD/I engines and boats to include a misfire monitor. Prior to the
2008 amendments, the misfire monitor requirement was conditional. The
previously authorized regulations only required misfire monitoring when
CARB or the certifying manufacturer determined that engine misfire
would cause the catalyst to fail before the emissions durability period
of the engine had elapsed. The OBD-M amendment also extends the
compliance date to allow for the deployment of more sophisticated on-
board computers and temporarily relaxes requirements for malfunction
indicator light activation.
    The Modification of Exhaust Standards for High Performance SD/I
Engines Amendment (HPE exhaust standards amendment) relaxes
California's total hydrocarbon and oxides of nitrogen
(HC+NOX) exhaust standard for 2009 and later model year high
performance SD/I engines produced by small volume manufacturers.
    California asserts that the OBD-M and the HPE exhaust standards
amendments, like the other eight amendments presented for within-the-
scope confirmation, satisfy all the criteria, including the third
criterion, that the amendments do not raise any new issues affecting
the prior authorization.
    Beginning with the OBD-M amendment, California notes that the
change from the previous conditional requirement to the mandate for
misfire monitors does not represent a new requirement because all SD/I
manufacturers, in practice, already voluntarily include misfire
monitoring as part of their OBD-M systems. In 2006, when California
adopted its original OBD-M requirements, industry believed that misfire
monitors generally would not be necessary for SD/I engines certified to
California's 5.0 gram per kilowatt-hour (g/kW-hr) non-methane
hydrocarbon plus nitrogen oxides (NMHC+NOX) standard.\34\
Rather, industry contended and CARB agreed that misfire would not
affect catalyst durability because marine catalysts would need to be
extraordinarily robust to meet that standard and remain durable in a
water environment. However, industry has since learned that special
catalysts are not necessary. Instead manufacturers are using
conventional catalysts in California-certified SD/I engines. These
catalysts are susceptible to damage from engine misfire and
manufacturers therefore are subject to the conditional misfire monitor
requirement established under

the previously authorized Marine SI regulations.
---------------------------------------------------------------------------

    \34\ CARB amended its marine standards to reflect the total
hydrocarbon species instead of the previous ``non-methane''
hydrocarbon species to recognize methane's role as a greenhouse gas.
See discussion below, under full authorization analysis, and
Authorization Support Document at pp. 8-9.
---------------------------------------------------------------------------

    California maintains that there would be no difference in
converting the conditional misfire monitoring program into a mandate
because all manufacturers providing information to California in
actuality already include a misfire monitor in their OBD-M systems.
    EPA appreciates California's argument that the practical impact of
the OBD-M amendment is negligible, and perhaps even nonexistent.
However, we do not agree with California's view that the change from a
conditional requirement to a comprehensive mandatory requirement under
the OBD-M amendment ``does not mandate a new system or require
appreciable hardware changes.'' \35\ The possibility is arguably still
present that the OBD-M amendment would require a manufacturer using a
robust catalyst technology to include a misfire monitor in the OBD-M
system, where previously such a requirement did not exist. If true,
this would constitute a new requirement under the mandatory system that
did not exist under the conditional system we previously authorized.
EPA finds that the OBD-M amendment does indeed present a new issue and
therefore cannot be confirmed as within the scope of the previous
authorization. Therefore EPA considers the OBD-M amendment under the
full authorization criteria, as discussed below.
---------------------------------------------------------------------------

    \35\ Id.
---------------------------------------------------------------------------

    The HPE exhaust standards amendment, like several of the 2008
amendments, is designed to address obstacles that manufacturers faced
in attempting to comply with California's Marine SI regulations. The
HPE sector involves a relatively small number of manufacturers that
cumulatively sell between 200-250 new engines in California each year.
The previously authorized regulations allowed manufacturers to average
standard performance and high performance engine family emission levels
within their product line as a means to facilitate compliance. However,
manufacturers encountered technical obstacles regarding the effective
use of catalytic converters on high performance engines. In addition, a
competitive disadvantage existed for small volume manufacturers that
did not have requisite standard engines to generate offsets for their
HPEs. The HPE exhaust standards amendment responds to these concerns by
relaxing the model year 2009 and later HC+NOX exhaust
standard for small volume HPE manufacturers.
    California states that any emissions shortfall resulting from the
relaxation of standards by the HPE exhaust standards amendment will be
offset by emissions reductions achieved through another provision in
the 2008 amendments package. That provision establishes enhanced
evaporative emissions control requirements for high performance SD/I
engines. CARB requested full authorization for that amendment, as
described in the following section of this document. California
contends that the HPE exhaust standards amendment satisfies the
criteria for within-the-scope confirmation because it does not impose
new requirements and because it will not affect CARB's previous
protectiveness determination, considering the emissions compensation
achieved within the full set of 2008 amendments.
    EPA agrees with CARB's interpretation that the HPE exhaust
standards amendment does not impose any new, more stringent
requirements, relative to the previously authorized regulations. EPA
also agrees that the emissions impact of the relaxed HC+NOX
standard will be small and may in fact be nil overall, given the
compensating effect of another provision that will reduce evaporative
emissions from high performance SD/I engines. However CARB expressly
states that the evaporative controls amendment was established to
compensate for the shortfall in emission benefits from the change in
exhaust standards. Because CARB links the two amendments, and because
the amendment establishing the enhanced evaporative emission controls
requires full authorization, EPA cannot consider the HPE exhaust
standards amendment independently. Therefore, EPA views the HPE exhaust
standards amendment as presenting a new issue that precludes a within-
the-scope determination.
    For the OBD-M and HPE exhaust emissions standards amendments, since
the ``new issue'' prong of the within-the-scope criteria is not
satisfied, EPA shall consider these amendments under the full
authorization criteria, and will analyze them as such.\36\
---------------------------------------------------------------------------

    \36\ EPA cannot find that these amendments are within the scope
of the previous authorization because they failed to satisfy the
``new issue'' criterion. We must therefore proceed with a full
authorization analysis; there is no need to analyze whether the
other two prongs of the within-the-scope analysis are met.
---------------------------------------------------------------------------

B. Full Authorization Analysis

    California requested full authorization for five of its 2008
amendments, each of which is summarized below. As described in the
background section of this document, the CAA directs EPA to grant
authorization, after providing opportunity for public hearing, unless
EPA finds that California's protectiveness determination is arbitrary
and capricious, that California does not need state standards to meet
compelling and extraordinary conditions, or that the California
standards are inconsistent with federal standards. EPA requested but
received no comment on whether the 2008 amendments satisfy those
criteria.
    EPA analyzed the authorization request by evaluating each of the
five amendments for which California requested full authorization
against each of the three authorization criteria. As explained above,
we also evaluated against full authorization criteria the two
amendments that EPA could not confirm to be within the scope of the
previous marine SI authorization. The following discussion briefly
summarizes the amendments \37\ and presents our analysis. The
discussion combines and analyzes amendments together for brevity and
clarity as appropriate.
---------------------------------------------------------------------------

    \37\ Summaries of the OBD-M and HPE exhaust standards amendments
are provided in the within-the-scope amendments section of this
document.
---------------------------------------------------------------------------

1. Summary of Full Authorization Amendments
    California has requested full authorization for five of its 2008
amendments. We summarize these amendments below. As described in the
background section of this document, the CAA directs EPA to grant
authorization, after providing opportunity for public comment, unless
EPA finds that California's protectiveness determination is arbitrary
and capricious, that California does not need state standards to meet
compelling and extraordinary conditions, or that the California
standards are inconsistent with federal standards. EPA requested but
received no comment on whether the 2008 amendments satisfy those
criteria.
    The Revised Total Hydrocarbon plus Oxides of Nitrogen Standards
Amendment (revised HC+NOX standards amendment) changes
California's hydrocarbon emission standard for all spark-ignition
marine categories from a non-methane hydrocarbon (NMHC) standard to a
total hydrocarbon standard. The previously authorized Marine SI
regulations did not include the methane component of HC emissions in
the standards because California, at the time, designed the regulation
to control ozone, and methane does not contribute to ozone formation in
the atmosphere. However,

methane has been identified as a greenhouse gas that contributes to
global warming. California therefore amended its regulations to
acknowledge the state's now broader air pollution concerns and include
the total hydrocarbon species in its marine SI emission standards. The
amendment would also harmonize the form of California's marine SI
standards with federal gasoline certification fuel standards.
    The Enhanced Evaporative Emissions Controls for High Performance
SD/I Engines Amendment (evaporative emissions controls amendment) calls
for boats using model year 2009 and later SD/I engines to incorporate
enhanced evaporative emissions controls, including evaporative
canisters and low-permeation fuel tanks and hoses. California states
that this amendment was intended to ``compensate'' for the shortfall in
emission benefits from the change in exhaust standards for high
performance SD/I engines produced by small volume manufacturers, and to
keep pace with EPA's evaporative emissions regulations published on May
18, 2007.\38\ The evaporative emissions controls harmonize California
evaporative emissions standards with the federal standards.
---------------------------------------------------------------------------

    \38\ 72 FR 28098, Control of Emissions from Nonroad Spark-
Ignition Engines and Equipment.
---------------------------------------------------------------------------

    The Not-to-Exceed (NTE) Limits Amendment (NTE limits amendment)
harmonizes California NTE limits for outboard motors/personal
watercraft (OB/PWC) and SD/I engines less than or equal to 373 kW with
federal NTE requirements for the same engine categories. The NTE
requirements are intended to ensure emissions control in modes of
engine operation that are not fully represented by the certification
test cycle.
    The Revised Jet Boat \39\ Engine Standards Amendment (jet boat
standards amendment) enhances alignment between California and federal
definitions for SD/I engines and jet boats, and requires manufacturers
that were certifying jet boat engines to California's OB/PWC standards
to instead certify them to the more stringent SD/I standards. The 2008
amendments include several provisions intended to help facilitate the
transition to the SD/I standards. These include enabling jet boat
engine families previously certified to the OB/PWC standards or
certified in a combined jet boat OB/PWC family to be certified to the
OB/PWC standards until 2012 and establishing a transition period
between 2010 and 2012 during which certain offsets and averaging may be
used to comply with HC+NOX standards.
---------------------------------------------------------------------------

    \39\ CCR Section 2441(a)(32), ``Jet Boat'' means a vessel that
uses an installed internal combustion engine powering a water jet
pump as its primary source of propulsion and is designed with open
area for carrying passengers.
---------------------------------------------------------------------------

    The New Carbon Monoxide Emission Standards Amendment (CO standards
amendment) California adopted as part of the 2008 package applies to
OB/PWC and SD/I engines. California adopted the standards, which
essentially capped CO emissions at currently measured levels, to reduce
CO inhalation risk for recreational boaters. The amended California CO
standards are similar in stringency to federal standards but differ
slightly in program design.
2. California's Protectiveness Determination
    The first criterion EPA analyzes for full authorization is whether
California's protectiveness determination (that its standards,
including those changed by the 2008 amendments--the OBD-M requirement,
HPE exhaust standards, revised HC+ NOX standards,
evaporative emissions controls, NTE limits, jet boat standards, and CO
standards--are, in the aggregate, at least as protective of public
health and welfare as applicable federal standards) is arbitrary and
capricious.
    In its initial action to adopt marine SI emission regulations in
1998, CARB determined that the Marine SI regulations were in the
aggregate at least as protective of public health and welfare as the
applicable federal regulations.\40\ In granting California
authorization for the regulation, EPA affirmed that this determination
was not arbitrary or capricious.\41\ CARB has reiterated its
protectiveness determination with regard to the 2008 amendments so EPA
now evaluates that determination in light of the amended marine SI
program and current federal standards.\42\
---------------------------------------------------------------------------

    \40\ See CARB Resolution 98-63, EPA-HQ-OAR-2013-0024-0014.
    \41\ 72 FR14546 (March 28, 2007).
    \42\ Authorization Support Document at 13.
---------------------------------------------------------------------------

    As described above, CARB states that the 2008 amendments are either
emissions neutral or increase the emissions stringency of California's
Marine SI regulations. Specifically, California states that the revised
HC+NOX standards, NTE limits and revised jet boat engine
standards harmonize with federal standards while the CO standards and
HPE exhaust standards are either of equivalent stringency or more
stringent than the federal requirements. The HPE exhaust standards
amendment does relax California's previous requirement somewhat, but
only for small volume manufacturers, and the emissions increase due to
this modification is offset by requirements within the 2008 amendments
for enhanced evaporative emission controls on the same high-performance
SD/I engine sector. We received no comment challenging California's
marine SI standards as less stringent than applicable federal standards
or refuting California's protectiveness determination. Given the lack
of any evidence to the contrary, we cannot find that California's
protectiveness determination regarding these amendments is arbitrary or
capricious.
    California's OBD-M amendment requiring misfire monitoring for SD/I
engines was intended to adjust and upgrade the OBD-M requirement that
EPA authorized in 2007. While EPA finds that the OBD-M amendment is
inappropriate for within-the-scope treatment, the modification from a
conditional to a mandatory requirement increases the program's
stringency, which would favor California's finding of protectiveness.
There is no federal requirement for a misfire monitoring system for
marine OBD systems, which lends support to California's determination
that its standards are as protective, if not more so, than the federal
standard. Therefore, as with the amended emission standards within the
2008 amendments, we cannot find that California's protectiveness
determination regarding the OBD-M amendment is arbitrary or capricious.
3. California's Compelling and Extraordinary Conditions
    California has asserted its longstanding position that the State
continues to need its own nonroad engine program to meet serious air
pollution problems.\43\ 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.\44\ In a 2009
waiver action, EPA examined the language of section

209(b)(1)(B) (which is essentially identical to the language in section
209(e)(2)(A)(ii)), and reiterated its longstanding traditional
interpretation and that the better approach for analyzing the need for
``such State standards'' to meet ``compelling and extraordinary
conditions'' is to review California's need for its program as a whole,
for the class or category of vehicles being regulated, as opposed to
its need for individual standards.\45\ We have previously and
consistently recognized that California meets the compelling and
extraordinary criterion when granting waivers for motor vehicles under
section 209(b) and authorizations for California's nonroad regulations
under section 209(e) of the Act.
---------------------------------------------------------------------------

    \43\ See Authorization Support Document at p. 15, ``In adopting
Resolution 08-36 (Reference 5), the Board also confirmed CARB's
longstanding position that California continues to need its own
nonroad engine program to meet serious air pollution problems.''
    \44\ 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).)
    \45\ See 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.
---------------------------------------------------------------------------

    CARB's entire marine engine program is an important part of efforts
to improve California's air quality through reductions of HC and
NOX emissions. Because of California's unique and severe air
quality problems, the state continues to need more stringent standards
to meet its air quality goals and satisfy its State Implementation Plan
obligations. CARB's regulation of SD/I marine engines stems from its
determination that these sources are significant contributors to ozone-
forming emissions in California. The 2008 amendments are intended to
enhance the program by clarifying and updating the regulations to align
with other state and federal standards, and by increasing compliance
flexibility. The Marine SI regulations also provide selective
enforcement auditing, in-use compliance testing, consumer labeling to
identify emissions performance relative to other marine SI engines, and
a defects warranty program to protect consumers against poor quality
products and to ensure that engines continue to perform as designed
throughout their entire useful lives. California's Marine SI
regulations as a whole address California's continuing struggles with
air quality.
    We received no contrary evidence or comments contesting
California's longstanding determination that its marine SI engine
program is needed to address the state's compelling and extraordinary
conditions, nor did we receive any suggestion that the program is not
still necessary. Therefore, based on the record of this request and
absence of comments to the contrary, EPA cannot find that California
does not continue to need such state standards, including the 2008
amendments, to address the ``compelling and extraordinary conditions''
underlying the state's air pollution problems.
4. Consistency With Section 209 of the Act
    The third and final prong of our full authorization review
addresses consistency with section 209 of the Act, which, as discussed
above, requires evaluation of consistency with sections 209(a),
209(e)(1), and 209(b)(1)(C). First, to be consistent with section
209(a), the amendments must not apply to new motor vehicles or motor
vehicle engines. Second, to be consistent with section 209(e)(1) of the
Act, the regulations must not attempt to regulate those vehicles and
engines permanently preempted from state regulation by section
209(e)(1), including farm and construction equipment and engines,
vehicles and engines below 175 horsepower, and new locomotives or
locomotive engines. None of the boats or engines covered by
California's Marine SI regulations fall in those categories and we
received no evidence to the contrary. We therefore find the 2008
amendments are consistent with sections 209(a) and 209(e)(1).
    Third, to be consistent with section 209(b)(1)(c), there must be
adequate lead time to permit technological development for compliance
with the amendment, and the state test procedures must not be made
inconsistent with federal test procedures. The 2008 amendments for
which California has requested authorization do not require development
of new technologies, thus there is no consistency issue presented with
regard to lead time. Furthermore, aside from the OBD-M amendment,
California designed the provisions for which full authorization is
being evaluated to harmonize with federal standards. There is no
inconsistency with federal test procedures. Indeed, one of California's
goals in amending the marine regulations was to address any potential
conflict with the federal regulations that may have hindered or
unnecessarily complicated compliance, including duplicative testing.
    The misfire monitoring requirement for OBD-M may have created an
issue with lead time since the 2008 amendments modified the conditional
requirement into a mandatory requirement for SD/I manufacturers.
However, as California has asserted, all manufacturers that have
submitted reports to California already include misfire monitoring in
their OBD-M systems. We received no comment or evidence contesting
California's position that the misfire monitoring system, or any other
2008 amendment, satisfies the consistency criterion under section
209(b)(1)(c).
    We therefore find that each of the 2008 amendments that we analyzed
under the full authorization criteria is consistent with section 209 of
the Act.
    Having found that the 2008 amendments satisfy each of the criteria
for full authorization, and having received no contrary evidence to
contradict this finding, we cannot deny authorization of the 2008
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 Marine SI
regulations described above, EPA is taking the following actions.
First, EPA is granting an authorization for the following amendments:
Revised Total Hydrocarbon Emission Standards; Enhanced Evaporative
Emissions Controls for High Performance SD/I Engines; Modification of
Exhaust Standards for High Performance SD/I Engines; Not to Exceed
Limits; Revised Jet Boat Engine Standards; New Carbon Monoxide
Emissions Standards; Revised On-Board Diagnostic Marine Requirements.
    Second, EPA confirms that the following 2008 amendments are within
the scope of the previous EPA authorizations: Aftermarket Exemption
Procedures Clarification; Optional Fifth Tier Added to Environmental
Label Program; Optional Loaded Test Cycle for High Performance Engines;
Optional Portable Measurement Systems for High Performance Engines;
Optional Assigned Deterioration Factors for High Performance Engines;
Optional Engine Discontinuation Allowance for SD/I Engines; Compliance
Assistance for All Spark-Ignition Marine Engines; Replacement Engine
Provisions.\46\
---------------------------------------------------------------------------

    \46\ We believe these amendments satisfy the criteria for a
within-the-scope confirmation. However, we believe these eight
amendments would also merit a full authorization if reviewed under
that analysis.
---------------------------------------------------------------------------

    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 July 6,
2015. 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: April 29, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-10632 Filed 5-5-15; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 221 (Friday, November 19, 2021)]
[Notices]
[Pages 64930-64931]
[FR Doc No: 2021-25263]

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ENVIRONMENTAL PROTECTION AGENCY

[ER-FRL-9059-4]

Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General
Information<PHONE_NUMBER> or https://www.epa.gov/nepa.

Weekly receipt of Environmental Impact Statements (EIS)
Filed November 5, 2021 10 a.m. EST Through November 15, 2021 10 a.m.
EST
Pursuant to 40 CFR 1506.9

    Notice: Section 309(a) of the Clean Air Act requires that EPA make
public its comments on EISs issued by other Federal agencies. EPA's
comment letters on EISs are available at: https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

EIS No. 20210173, Draft Supplement, USACE, WA, Howard A. Hanson Dam
Additional Water Storage Project, Section 902 Post Authorization Change
Validation Study--Fish Passage, Draft Integrated Validation Report and
Supplemental Environmental Impact Statement, Comment Period Ends: 01/
04/2022, Contact: Nancy Gleason<PHONE_NUMBER>.
EIS No. 20210174, Final, FERC, NY, Enhancement by Compression Project,
Review Period Ends: 12/20/2021, Contact: Office of External Affairs
866-208-3372.

EIS No. 20210175, Final, WAPA, WY, Rail Tie Wind Project, Review Period
Ends: 12/20/2021, Contact: Mark Wieringa<PHONE_NUMBER>.
EIS No. 20210176, Draft, USFS, UT, Ashley National Forest Plan
Revision, Comment Period Ends: 02/17/2022, Contact: Anastasia Allen
406-270-9241.

    Dated: November 15, 2021.
Cindy S. Barger,
Director, NEPA Compliance Division, Office of Federal Activities.
[FR Doc. 2021-25263 Filed 11-18-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 232 (Tuesday, December 5, 2023)]
[Notices]
[Pages 84383-84386]
[FR Doc No: 2023-26593]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99036; File No. SR-CboeBZX-2023-096]

Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
the Short Term Option Series Program

November 29, 2023.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on November 22, 2023, Cboe BZX Exchange, Inc. (the ``Exchange'' or
``BZX'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. The Exchange
filed the proposal as a ``non-controversial'' proposed rule change
pursuant to section 19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-
4(f)(6) thereunder.\4\ The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend its Short Term Option Series
Program.
    The text of the proposed rule change is available on the Exchange's
website (http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/), at the Exchange's Office of the Secretary, and at the
Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Rule 19.6, Interpretation and Policy
.05. Specifically, the Exchange proposes to expand the Short Term
Option Series Program to permit the listing of two Wednesday
expirations for options on United States Oil Fund, LP (``USO''), United
States Natural Gas Fund, LP (``UNG''), SPDR Gold Shares (``GLD''),
iShares Silver Trust (``SLV''), and iShares 20+ Year Treasury Bond ETF
(``TLT'') (collectively ``Exchange Traded

Products'' or ``ETPs''). This is a competitive filing that is based on
a proposal submitted by Nasdaq ISE, LLC (``Nasdaq ISE'') and recently
approved by the Commission.\5\
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    \5\ See Securities Exchange Act Release No. 98905 (November 13,
2023) (SR-ISE-2023-11) (Order Approving a Proposed Rule Change to
Amend the Short Term Option Series Program to Permit the Listing of
Two Wednesday Expirations for Options on Certain Exchange Traded
Products) (``Nasdaq ISE Approval'').
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    Currently, as set forth in Rule 19.6, Interpretation and Policy
.05, after an option class has been approved for listing and trading on
the Exchange, the Exchange may open for trading on any Thursday or
Friday that is a business day (``Short Term Option Opening Date'')
series of options on that class that expire at the close of business on
each of the next five Fridays that are business days and are not
Fridays on which monthly options series or Quarterly Options Series
expire (``Friday Short Term Option Expiration Dates''). The Exchange
may have no more than a total of five Friday Short Term Option
Expiration Dates (``Short Term Option Weekly Expirations''). If the
Exchange is not open for business on the respective Thursday or Friday,
the Short Term Option Opening Date for Short Term Option Weekly
Expirations will be the first business day immediately prior to that
respective Thursday or Friday. Similarly, if the Exchange is not open
for business on a Friday, the Short Term Option Expiration Date for
Short Term Option Weekly Expirations will be the first business day
immediately prior to that Friday.
    Additionally, the Exchange may open for trading series of options
on the symbols provided in Table 1 of Rule 19.6, Interpretation and
Policy .05(h) that expire at the close of business on each of the next
two Mondays, Tuesdays, Wednesdays, and Thursdays, respectively, that
are business days and are not business days in which monthly options
series or Quarterly Options Series expire (``Short Term Option Daily
Expirations''). For those symbols listed in Table 1, the Exchange may
have no more than a total of two Short Term Option Daily Expirations
for each of Monday, Tuesday, Wednesday, and Thursday expirations at one
time.
    At this time, the Exchange proposes to expand the Short Term Option
Daily Expirations to permit the listing and trading of options on USO,
UNG, GLD, SLV, and TLT expiring on Wednesdays. The Exchange proposes to
permit two Short Term Option Expiration Dates beyond the current week
for each Wednesday expiration at one time.\6\ In order to effectuate
the proposed changes, the Exchange would add USO, UNG, GLD, SLV, and
TLT to Table 1 of Rule 19.6, Interpretation and Policy .05(h), which
specifies each symbol that qualifies as a Short Term Option Daily
Expiration.
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    \6\ Consistent with the current operation of the rule, the
Exchange notes that if it adds a Wednesday expiration on a Tuesday,
it could technically list three outstanding Wednesday expirations at
one time. The Exchange will therefore clarify the rule text in Rule
19.6, Interpretation and Policy .05(h) to specify that it can list
two Short Term Option Expiration Dates beyond the current week for
each Monday, Tuesday, Wednesday, and Thursday expiration.
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    The proposed Wednesday USO, UNG, GLD, SLV, and TLT expirations will
be similar to the current Wednesday SPY, QQQ, and IWM Short Term Option
Daily Expirations set forth in Rule 19.6, Interpretation and Policy
.05, such that the Exchange may open for trading on any Tuesday or
Wednesday that is a business day (beyond the current week) series of
options on USO, UNG, GLD, SLV, and TLT to expire on any Wednesday of
the month that is a business day and is not a Wednesday in which
Quarterly Options Series expire (``Wednesday USO Expirations,''
``Wednesday UNG Expirations,'' ``Wednesday GLD Expirations,''
``Wednesday SLV Expirations,'' and ``Wednesday TLT Expirations'')
(collectively, ``Wednesday ETP Expirations'').\7\ In the event Short
Term Option Daily Expirations expire on a Wednesday and that Wednesday
is the same day that a Quarterly Options Series expires, the Exchange
would skip that week's listing and instead list the following week; the
two weeks would therefore not be consecutive. Today, Wednesday
expirations in SPY, QQQ, and IWM similarly skip the weekly listing in
the event the weekly listing expires on the same day in the same class
as a Quarterly Options Series.
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    \7\ While the relevant rule text in Rule 19.6, Interpretation
and Policy .05(h) also indicates that the Exchange will not list
such expirations on a Wednesday that is a business day in which
monthly options series expire, practically speaking this would not
occur.
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    USO, UNG, GLD, SLV, and TLT Friday expirations would continue to
have a total of five Short Term Option Expiration Dates provided those
Friday expirations are not Fridays in which monthly options series or
Quarterly Options Series expire (``Friday Short Term Option Expiration
Dates'').
    Similar to Wednesday SPY, QQQ, and IWM Short Term Option Daily
Expirations within Rule 19.6, Interpretation and Policy .05(h), the
Exchange proposes that it may open for trading on any Tuesday or
Wednesday that is a business day series of options on USO, UNG, GLD,
SLV, and TLT that expire at the close of business on each of the next
two Wednesdays that are business days and are not business days in
which Quarterly Options Series expire.
    The interval between strike prices for the proposed Wednesday ETP
Expirations will be the same as those for the current Short Term Option
Series for Friday expirations applicable to the Short Term Option
Series Program.\8\ Specifically, the Wednesday ETP Expirations will
have a strike interval of $0.50 or greater for strike prices below
$100, $1 or greater for strike prices between $100 and $150, and $2.50
or greater for strike prices above $150.\9\ As is the case with other
equity options series listed pursuant to the Short Term Option Series
Program, the Wednesday ETP Expirations series will be P.M.-settled.
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    \8\ See Rule 19.6, Interpretation and Policy .05(e).
    \9\ Id.
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    Pursuant to Rule 19.6, Interpretation and Policy .05(h), with
respect to the Short Term Option Series Program, a Wednesday expiration
series shall expire on the first business day immediately prior to that
Wednesday, e.g., Tuesday of that week if the Wednesday is not a
business day.
    Currently, for each option class eligible for participation in the
Short Term Option Series Program, the Exchange is limited to opening
thirty (30) series for each expiration date for the specific class.\10\
The thirty (30) series restriction does not include series that are
open by other securities exchanges under their respective weekly rules;
the Exchange may list these additional series that are listed by other
options exchanges.\11\ With the proposed changes, this thirty (30)
series restriction would apply to Wednesday USO, UNG, GLD, SLV, and TLT
Short Term Option Daily Expirations as well. In addition, the Exchange
will be able to list series that are listed by other exchanges,
assuming they file similar rules with the Commission to list Wednesday
ETP Expirations.
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    \10\ See Rule 19.6, Interpretation and Policy .05(a).
    \11\ Id.
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    With this proposal, Wednesday ETP Expirations would be treated
similarly to existing Wednesday SPY, QQQ, and IWM Expirations. With
respect to monthly option series, Short Term Option Daily Expirations
will be permitted to expire in the same week in which monthly option
series on the same class expire. Not listing Short Term Option Daily
Expirations for one week every month because there was a

monthly on that same class on the Friday of that week would create
investor confusion.
    Further, as with Wednesday SPY, QQQ, and IWM Expirations, the
Exchange would not permit Wednesday ETP Expirations to expire on a
business day in which monthly options series or Quarterly Options
Series expire. Therefore, all Short Term Option Daily Expirations would
expire at the close of business on each of the next two Wednesdays that
are business days and are not business days in which monthly options
series or Quarterly Options Series expire. The Exchange believes that
it is reasonable to not permit two expirations on the same day in which
a monthly options series or a Quarterly Options Series would expire
because those options would be duplicative of each other.
    The Exchange does not believe that any market disruptions will be
encountered with the introduction of Wednesday ETP Expirations. The
Exchange has the necessary capacity and surveillance programs in place
to support and properly monitor trading in the proposed Wednesday ETP
Expirations. The Exchange currently trades P.M.-settled Short Term
Option Series that expire Wednesday for SPY, QQQ and IWM and has not
experienced any market disruptions nor issues with capacity. Today, the
Exchange has surveillance programs in place to support and properly
monitor trading in Short Term Option Series that expire Wednesday for
SPY, QQQ and IWM.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of section 6(b) of the
Act.\12\ Specifically, the Exchange believes the proposed rule change
is consistent with the section 6(b)(5) \13\ requirements that the rules
of an exchange be designed to prevent fraudulent and manipulative acts
and practices, to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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    Similar to Wednesday expirations in SPY, QQQ, and IWM, the proposal
to permit Wednesday ETP Expirations, subject to the proposed limitation
of two expirations beyond the current week, would protect investors and
the public interest by providing the investing public and other market
participants more choice and flexibility to closely tailor their
investment and hedging decisions in these options and allow for a
reduced premium cost of buying portfolio protection, thus allowing them
to better manage their risk exposure.
    The Exchange represents that it has an adequate surveillance
program in place to detect manipulative trading in the proposed option
expirations, in the same way that it monitors trading in the current
Short Term Option Series for Wednesday SPY, QQQ and IWM expirations.
The Exchange also represents that it has the necessary system capacity
to support the new expirations. Finally, the Exchange does not believe
that any market disruptions will be encountered with the introduction
of these option expirations. As discussed above, the Exchange believes
that its proposal is a modest expansion of weekly expiration dates for
GLD, SLV, USO, UNG, and TLT given that it will be limited to two
Wednesday expirations beyond the current week. Lastly, the Exchange
believes its proposal will not be a strain on liquidity provides
because of the multi-class nature of GLD, SLV, USO, UNG, and TLT and
the available hedges in highly correlated instruments, as described
above.
    The Exchange believes that the proposal is consistent with the Act
as the proposal would overall add a small number of Wednesday ETP
Expirations by limiting the addition of two Wednesday expirations
beyond the current week. The addition of Wednesday ETP Expirations
would remove impediments to and perfect the mechanism of a free and
open market by encouraging Market Makers to continue to deploy capital
more efficiently and improve market quality. The Exchange believes that
the proposal will allow market participants to expand hedging tools and
tailor their investment and hedging needs more effectively in USO, UNG,
GLD, SLV, and TLT as these funds are most likely to be utilized by
market participants to hedge the underlying asset classes.
    Similar to Wednesday SPY, QQQ, and IWM expirations, the
introduction of Wednesday ETP Expirations is consistent with the Act as
it will, among other things, expand hedging tools available to market
participants and allow for a reduced premium cost of buying portfolio
protection. The Exchange believes that Wednesday ETP Expirations will
allow market participants to purchase options on USO, UNG, GLD, SLV,
and TLT based on their timing as needed and allow them to tailor their
investment and hedging needs more effectively, thus allowing them to
better manage their risk exposure. Today, the Exchange lists Wednesday
SPY, QQQ, and IWM Expirations.\14\
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    \14\ See Rule 19.6, Interpretation and Policy .05(h).
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    The Exchange believes the Short Term Option Series Program has been
successful to date and that Wednesday ETP Expirations should simply
expand the ability of investors to hedge risk against market movements
stemming from economic releases or market events that occur throughout
the month in the same way that the Short Term Option Series Program has
expanded the landscape of hedging. There are no material differences in
the treatment of Wednesday SPY, QQQ and IWM expirations compared to the
proposed Wednesday ETP Expirations. Given the similarities between
Wednesday SPY, QQQ and IWM expirations and the proposed Wednesday ETP
Expirations, the Exchange believes that applying the provisions in Rule
19.6, Interpretation and Policy .05(h) that currently apply to
Wednesday SPY, QQQ and IWM expirations is justified. For example, the
Exchange believes that allowing Wednesday ETP Expirations and monthly
ETP expirations in the same week will benefit investors and minimize
investor confusion by providing Wednesday ETP Expirations in a
continuous and uniform manner.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. In this regard and as
indicated above, the Exchange notes that the rule change is being
proposed as a competitive response to a filing submitted by Nasdaq ISE
that was recently approved by the Commission.\15\
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    \15\ See Nasdaq ISE Approval.
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    While the proposal will expand the Short Term Options Expirations
to allow Wednesday ETP Expirations to be listed on the Exchange, the
Exchange believes that this limited expansion for Wednesday expirations
for options on USO, UNG, GLD, SLV, and TLT will not impose an undue
burden on competition; rather, it will meet customer demand. The
Exchange believes that market participants will continue to be able to
expand hedging tools and tailor their investment and

hedging needs more effectively in USO, UNG, GLD, SLV, and TLT given
multi-class nature of these products and the available hedges in highly
correlated instruments, as described above. Similar to Wednesday SPY,
QQQ and IWM expirations, the introduction of Wednesday ETP Expirations
does not impose an undue burden on competition. The Exchange believes
that it will, among other things, expand hedging tools available to
market participants and allow for a reduced premium cost of buying
portfolio protection. The Exchange believes that Wednesday ETP
Expirations will allow market participants to purchase options on USO,
UNG, GLD, SLV, and TLT based on their timing as needed and allow them
to tailor their investment and hedging needs more effectively. The
Exchange does not believe the proposal will impose any burden on inter-
market competition, as nothing prevents the other options exchanges
from proposing similar rules to list and trade Wednesday ETP
Expirations. Further, the Exchange does not believe the proposal will
impose any burden on intramarket competition, as all market
participants will be treated in the same manner under this proposal.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received comments on the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The Exchange has filed the proposed rule change pursuant to section
19(b)(3)(A)(iii) of the Act \16\ and Rule 19b-4(f)(6) thereunder.\17\
Because the foregoing proposed rule change does not: (i) significantly
affect the protection of investors or the public interest; (ii) impose
any significant burden on competition; and (iii) become operative for
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, it has become effective pursuant to
section 19(b)(3)(A)(iii) of the Act \18\ and subparagraph (f)(6) of
Rule 19b-4 thereunder.\19\
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    \16\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \17\ 17 CFR 240.19b-4(f)(6).
    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \20\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\21\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has
requested that the Commission waive the 30-day operative delay so that
the proposal may become operative immediately upon filing. According to
the Exchange, the proposed rule change is a competitive response to a
filing submitted by Nasdaq ISE that was recently approved by the
Commission.\22\ The Exchange has stated that waiver of the 30-day
operative delay would ensure fair competition among the exchanges by
allowing the Exchange to permit the listing of two Wednesday
expirations for options on ETPs. The Commission believes that the
proposed rule change presents no novel issues and that waiver of the
30-day operative delay is consistent with the protection of investors
and the public interest. Accordingly, the Commission hereby waives the
30-day operative delay and designates the proposed rule change as
operative upon filing.\23\
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    \20\ 17 CFR 240.19b-4(f)(6).
    \21\ 17 CFR 240.19b-4(f)(6)(iii).
    \22\ See supra note 5.
    \23\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-CboeBZX-2023-096 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to file number SR-CboeBZX-2023-096. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-CboeBZX-2023-096 and should
be submitted on or before December 26, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\24\
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    \24\ 17 CFR 200.30-3(a)(12), (59).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-26593 Filed 12-4-23; 8:45 am]
BILLING CODE 8011-01-P