[Federal Register Volume 80, Number 237 (Thursday, December 10, 2015)]
[Notices]
[Pages 76685-76690]
[FR Doc No: 2015-31043]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

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

California State Nonroad Engine Pollution Control Standards;
Portable Diesel-Fueled Engines Air Toxics Control Measure; Notice of
Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (``EPA'') is granting the
California Air Resources Board's (``CARB'') request for authorization
of amendments to its Portable Diesel-Fueled Engines Air Toxics Control
Measure (``Portable Engine Amendments''). EPA is also confirming that
certain Portable Engine Amendments are within the scope of a prior EPA
authorization. CARB's Portable Engine Amendments apply to in-use,
portable, off-road \1\ diesel-fueled engines rated 50 brake horsepower
(bhp) and greater. This decision is issued under the authority of the
Clean Air Act (``CAA'' or ``Act'').
---------------------------------------------------------------------------

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

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

ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2014-0798. All documents relied upon in making this
decision, including those submitted to EPA by CARB, are contained in
the public docket. Publicly available docket materials are available
either electronically through www.regulations.gov or in hard copy at
the Air and Radiation Docket in the EPA Headquarters Library, EPA West
Building, Room 3334, located at 1301 Constitution Avenue NW.,
Washington, DC. The Public Reading Room is open to the public on all
federal government working days from 8:30 a.m. to 4:30 p.m.; generally,
it is open Monday through Friday, excluding holidays. The telephone
number for the Reading Room is<PHONE_NUMBER>. The Air and Radiation
Docket and Information Center's Web site is http://www.epa.gov/oar/docket.html. The electronic mail (email) address for the Air and
Radiation Docket is<EMAIL_ADDRESS>the telephone number is
(202) 566-1742, 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-2014-0798 in the ``Enter
Keyword or ID'' fill-in box to view documents in the record. Although a
part of the official docket, the public docket does not include
Confidential Business Information (``CBI'') or other information whose
disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality (``OTAQ'') maintains
a Web page that contains general information on its review of
California waiver and authorization requests. Included on that page are
links to prior waiver Federal Register notices, some of which are cited
in today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Read, Attorney, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
2565 Plymouth Road, Ann Arbor, MI 48105. Telephone:<PHONE_NUMBER>.
Fax:<PHONE_NUMBER>. Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    California initially adopted its Portable Engine regulations on
February 26, 2004 as part of a broad California program to reduce
emissions of diesel particulate matter. The regulations applied to in-
use, portable, off-road diesel-fueled engines rated 50 brake horsepower
(bhp) and greater. ``Portable engines'' are engines that may be moved
easily from location to location.\2\ Subject engines were required to
be certified to certain emission standards by January 1, 2010, unless
the engines were designated as low-use engines or as engines
exclusively used in emergency applications. Fleets of in-use diesel-
fueled portable engines were required to meet fleet-average standards
for diesel PM emissions that become increasingly more stringent in
2013, 2017, and 2020. The initial Portable Engine air toxic control
measure (ATCM) became operative under state law on March 11, 2005 \3\
and EPA authorized the regulations on November 29, 2012.\4\
---------------------------------------------------------------------------

    \2\ 77 FR 72846, 72847 (December 6, 2012).
    \3\ The Portable Engine ATCM is set forth at 17 CCR 93116 et
seq.
    \4\ 77 FR 72846 (December 6, 2012).
---------------------------------------------------------------------------

    CARB adopted the 2007 amendments on July 31, 2007, and they became
effective on September 12, 2007. The 2007 amendments were designed to
extend temporary, emergency provisions CARB had adopted to address the
inability of owners and operators to permit or register older

engines that did not satisfy the Portable Engine certification
requirement to meet the most stringent federal or California emission
standards. The 2007 amendments addressed this issue by (i) granting
discretion to local air districts to permit or register uncertified
portable engines that were operated in California within a designated
time period prior to October 1, 2006, or that were low-use engines or
used exclusively in emergency applications, (ii) allowing Tier 1 and
Tier 2 engines that were in operation within a designated time period
prior to October 1, 2006, but did not meet the most stringent emission
requirements, to be permitted or registered until December 31, 2009,
and (iii) otherwise providing additional compliance flexibility.
    In 2008, CARB adopted an In-Use Off-Road regulation \5\ and a Truck
and Bus regulation.\6\ CARB then amended the Portable Engine
regulations to exempt certain engines (viz., secondary engines on two-
engine cranes and two-engine sweepers, and on lattice boom cranes) that
instead became subject to either the In-Use Off-Road regulation or the
Truck and Bus regulation. CARB formally adopted the amendments to the
Portable Engine ATCM on October 19, 2009 (the 2009 amendments).
---------------------------------------------------------------------------

    \5\ The California In-Use Off-Road regulation is set forth at 13
CCR 2449 et seq.
    \6\ The California Truck and Bus regulation is set forth at 13
CCR 2025 et seq.
---------------------------------------------------------------------------

    California formally approved the 2010 amendments to the Portable
Engine ATCM regulations on October 19, 2010 and January 20, 2011. The
2010 amendments became operative under state law on February 19, 2011.
The 2010 amendments provided further compliance flexibility, and
clarified or modified other aspects of the regulations. For example,
some entities were allowed to operate a limited number of non-certified
engines for an additional year, through December 31, 2010. Additional
regulatory relief was provided for engines that were permitted or
registered prior to January 1, 2010. The amendments provided for
permitting of portable engines that were certified to standards for new
on-road engines. Auxiliary deck engines on water well drilling rigs
were exempted and instead made subject to CARB's In-Use Off-Road
Regulation. Portable engines used exclusively on dedicated snow removal
vehicles were also exempted. Low-use and emergency use engines were
required to be removed or replaced with a current tier engine by
January 1, 2017. The 2010 amendments also deleted the provision that
had allowed local air districts, in their discretion, to permit non-
certified engines that had operated between March 1, 2004 and October
1, 2006. The amendments specified particulate matter (PM) emission
factors for certain engines, which are used to help determine fleet
average standards. Finally, the 2010 amendments provided relief for
certified engines that lost their permit exemption due to changes in
local air district rules.
    By letter dated September 15, 2014, CARB submitted a request to EPA
pursuant to section 209(e) of the Act for confirmation that the 2007,
2009, and 2010 amendments fall within the scope of EPA's previous
authorization, or, in the alternative, that EPA grant a full
authorization for those amendments.

A. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts any state, or
political subdivision thereof, from adopting or attempting to enforce
any standard or other requirement relating to the control of emissions
for certain new nonroad engines or vehicles.\7\ For all other nonroad
engines (including ``non-new'' engines), states generally are preempted
from adopting and enforcing standards and other requirements relating
to the control of emissions, except that section 209(e)(2)(A) of the
Act requires EPA, after notice and opportunity for public hearing, to
authorize California to adopt and enforce such regulations unless EPA
makes one of three enumerated findings. Specifically, EPA must deny
authorization if the Administrator finds that (1) California's
protectiveness determination (i.e., that California standards will be,
in the aggregate, as protective of public health and welfare as
applicable federal standards) is arbitrary and capricious, (2)
California does not need such standards to meet compelling and
extraordinary conditions, or (3) the California standards and
accompanying enforcement procedures are not consistent with section 209
of the Act.
---------------------------------------------------------------------------

    \7\ States are expressly preempted from adopting or attempting
to enforce any standard or other requirement relating to the control
of emissions from new nonroad engines which are used in construction
equipment or vehicles or used in farm equipment or vehicles and
which are smaller than 175 horsepower. Such express preemption under
section 209(e)(1) of the Act also applies to new locomotives or new
engines used in locomotives.
---------------------------------------------------------------------------

    On July 20, 1994, EPA promulgated a rule interpreting the three
criteria set forth in section 209(e)(2)(A) that EPA must consider
before granting any California authorization request for nonroad engine
or vehicle emission standards.\8\ EPA revised these regulations in
1997.\9\ As stated in the preamble to the 1994 rule, EPA historically
has interpreted the consistency inquiry under the third criterion,
outlined above and set forth in section 209(e)(2)(A)(iii), to require,
at minimum, that California standards and enforcement procedures be
consistent with section 209(a), section 209(e)(1), and section
209(b)(1)(C) of the Act.\10\
---------------------------------------------------------------------------

    \8\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
    \9\ See ``Control of Air Pollution: Emission Standards for New
Nonroad Compression-Ignition Engines at or Above 37 Kilowatts;
Preemption of State Regulation for Nonroad Engine and Vehicle
Standards; Amendments to Rules,'' 62 FR 67733 (December 30, 1997).
The applicable regulations are now found in 40 CFR part 1074,
subpart B, section 1074.105.
    \10\ See supra note 8. EPA has interpreted 209(b)(1)(C) in the
context of section 209(b) motor vehicle waivers.
---------------------------------------------------------------------------

    In order to be consistent with section 209(a), California's nonroad
standards and enforcement procedures must not apply to new motor
vehicles or new motor vehicle engines. To be consistent with section
209(e)(1), California's nonroad standards and enforcement procedures
must not attempt to regulate engine categories that are permanently
preempted from state regulation. To determine consistency with section
209(b)(1)(C), EPA typically reviews nonroad authorization requests
under the same ``consistency'' criteria that are applied to motor
vehicle waiver requests under section 209(b)(1)(C). That provision
provides that the Administrator shall not grant California a motor
vehicle waiver if she finds that California ``standards and
accompanying enforcement procedures are not consistent with section
202(a)'' of the Act. Previous decisions granting waivers and
authorizations have noted that state standards and enforcement
procedures will be found to be inconsistent with section 202(a) if (1)
there is inadequate lead time to permit the development of the
necessary technology, giving appropriate consideration to the cost of
compliance within that time, or (2) the federal and state testing
procedures impose inconsistent certification requirements.
    In light of the similar language of sections 209(b) and
209(e)(2)(A), EPA has reviewed California's requests for authorization
of nonroad vehicle or engine standards under section 209(e)(2)(A) using
the same principles that it has historically applied in reviewing
requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards

under section 209(b).\11\ These principles include, among other things,
that EPA should limit its inquiry to the three specific authorization
criteria identified in section 209(e)(2)(A),\12\ and that EPA should
give substantial deference to the policy judgments California has made
in adopting its regulations. In previous waiver decisions, EPA has
stated that Congress intended EPA's review of California's decision-
making be narrow. EPA has rejected arguments that are not specified in
the statute as grounds for denying a waiver:
---------------------------------------------------------------------------

    \11\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075,
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of
permissible construction in analogizing Sec.  209(e) on nonroad
sources to Sec.  209(a) on motor vehicles.''
    \12\ See supra note 7, at 36983.

    The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in California air
quality not commensurate with its costs or is otherwise an arguably
unwise exercise of regulatory power is not legally pertinent to my
decision under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\13\
---------------------------------------------------------------------------

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

    This principle of narrow EPA review has been upheld by the U.S.
Court of Appeals for the District of Columbia Circuit.\14\ Thus, EPA's
consideration of all the evidence submitted concerning an authorization
decision is circumscribed by its relevance to those questions that may
be considered under section 209(e)(2)(A).
---------------------------------------------------------------------------

    \14\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
---------------------------------------------------------------------------

    If California amends regulations that were previously authorized by
EPA, California may ask EPA to determine that the amendments are within
the scope of the earlier authorization. A within-the-scope
determination for such amendments is permissible without a full
authorization review if three conditions are met. First, the amended
regulations must not undermine California's previous determination that
its standards, in the aggregate, are as protective of public health and
welfare as applicable federal standards. Second, the amended
regulations must not affect consistency with section 209 of the Act,
following the same criteria discussed above in the context of full
authorizations. Third, the amended regulations must not raise any ``new
issues'' affecting EPA's prior authorizations.\15\
---------------------------------------------------------------------------

    \15\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
---------------------------------------------------------------------------

B. Deference to California

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

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

    \16\ 40 FR 23102, 23103-23104 (May 28, 1975).

    Similarly, EPA has stated that the text, structure, and history of
the California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\17\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
Clean Air Act.\18\ Congress had the opportunity through the 1977
amendments to restrict the preexisting waiver provision, but elected
instead to expand California's flexibility to adopt a complete program
of motor vehicle emission controls. The report explains that the
amendment is intended to ratify and strengthen the preexisting
California waiver provision and to affirm the underlying intent of that
provision, that is, to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare.\19\
---------------------------------------------------------------------------

    \17\ Id. at 23104; 58 FR 4166 (January 13, 1993).
    \18\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-302 (1977)).
    \19\ Id.
---------------------------------------------------------------------------

C. Burden and Standard of Proof

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

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

    \20\ MEMA I, supra note 17, at 1121.

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

    \21\ Id. at 1126.
    \22\ Id. at 1126.
---------------------------------------------------------------------------

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

    [. . .] consider all evidence that passes the threshold test of
materiality and . . . thereafter assess such material evidence
against a standard of proof to determine whether the parties
favoring a denial of the waiver have shown that the factual
circumstances exist in which Congress intended a denial of the
waiver.\23\
---------------------------------------------------------------------------

    \23\ Id. at 1122.

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

proposed enforcement procedures undermine the protectiveness of
California's standards.\24\ The court noted that this standard of proof
also accords with the congressional intent to provide California with
the broadest possible discretion in setting regulations it finds
protective of the public health and welfare.\25\
---------------------------------------------------------------------------

    \24\ Id.
    \25\ Id.
---------------------------------------------------------------------------

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

    \26\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
---------------------------------------------------------------------------

D. EPA's Administrative Process in Consideration of California's
Portable Engine ATCM Amendment Request for Authorization

    On November 21, 2014, EPA published a Federal Register notice
announcing its receipt of California's authorization request. In that
notice, EPA invited public comment on each of the Portable Engine ATCM
amendments and an opportunity to request a public hearing.\27\
---------------------------------------------------------------------------

    \27\ See ``California State Nonroad Engine Pollution Control
Standards; Portable Diesel-Fueled Engines Air Toxics Control
Measure; Request for Confirmation That Amendments Are Within-the-
Scope of Previous Authorization; Opportunity for Public Hearing and
Comment,'' 79 FR 69462 (November 21, 2014).
---------------------------------------------------------------------------

    First, EPA requested comments on whether California's 2007, 2009,
or 2010 Portable Engine ATCM amendments: (1) Undermine California's
previous determination that its standards, in the aggregate, are at
least as protective of public health and welfare as comparable federal
standards; (2) affect the consistency of California's requirements with
section 209 of the Act; or (3) raise any other new issues affecting
EPA's previous authorization determinations. EPA also requested
comments on whether the 2007, 2009, or 2010 Portable Engine ATCM
amendments meet the criteria for a full authorization should any party
believe that the amendments are not within the scope of the previous
authorization.
    EPA received no comments and no requests for a public hearing.
Consequently, EPA did not hold a public hearing.

II. Discussion

A. Within-the-Scope Discussion

    CARB maintains that the amendments noted above meet all three
within-the-scope criteria, i.e., that the amendments: (1) Do not
undermine the original protectiveness determination underlying
California's Portable Engine ATCM regulations; (2) do not affect the
consistency of the Portable Engine ATCM regulations with section 209,
and (3) do not raise any new issues affecting the prior
authorization.\28\ We received no adverse comments or evidence
suggesting a within-the-scope analysis is inappropriate, or that these
Portable Engine ATCM amendments fail to meet any of the three criteria
for within-the-scope confirmation.
---------------------------------------------------------------------------

    \28\ ``Request for Authorization Action Pursuant to Clean Air
Act Section 209(e) for 2007, 2009, and 2010 Amendments to
California's Airborne Toxic Control Measure for Portable Diesel
Engines 50 Horsepower and Greater'' (September 15, 2014),
(``California Authorization Support Document''), at 10-14 [publicly
available at www.regulations.gov Web site, docket number EPA-HQ-OAR-
2014-0798-0002].
---------------------------------------------------------------------------

    With regard to the first within-the-scope prong, CARB maintains
that the stringency of its emission standards is, in the aggregate, at
least as protective of public health and welfare as applicable federal
standards, especially since there are no federally applicable standards
regulating in-use nonroad engines.\29\ No comments presented otherwise,
and EPA agrees that there are no federally applicable standards for in-
use nonroad engines and that no evidence exists in the record to
demonstrate that CARB's Portable Engine ATCM regulations, in the
aggregate, are less protective than applicable federal standards.
Therefore, we find that the Portable Engine ATCM amendments, as noted,
do not undermine the protectiveness determination made with regard to
the original Portable Engine ATCM authorization.
---------------------------------------------------------------------------

    \29\ California Authorization Support Document, at 11.
---------------------------------------------------------------------------

    With regard to the second within-the-scope prong (consistency with
section 209), CARB first maintains that the Portable Engine ATCM
amendments do not regulate new motor vehicles or motor vehicle engines
and so are consistent with section 209(a).\30\ Likewise the Portable
Engine ATCM amendments do not regulate any of the permanently preempted
categories of engines or vehicles (e.g., new locomotives, engines for
new locomotives, or new nonroad engines less than 175 horsepower used
in farm and construction equipment and vehicles), and so are consistent
with section 209(e)(1).\31\ CARB maintains that the Portable Engine
ATCM amendments do not cause any technological feasibility issues or
cause inconsistency between state and federal test procedures, per
section 209(b)(1)(C). Finally, CARB maintains that none of the 2007,
2009 or 2010 Amendments alter the test procedures specified for
certifying engines, so there is no effect on the consistency with
federal test procedures.\32\ As mentioned above, no comments were
received showing otherwise on any of these contentions. Because there
is no evidence in the record to indicate that CARB's Portable Engine
amendments are inconsistent with section 209, we cannot find that the
noted Portable Engine amendments are inconsistent with section 209.
---------------------------------------------------------------------------

    \30\ California Authorization Support Document, at 11.
    \31\ California Authorization Support Document, at 11.
    \32\ California Authorization Support Document, at 14.
---------------------------------------------------------------------------

    Regarding the third prong, California states that it is ``not aware
of any new issues affecting the previously granted authorization for
the Portable Engine ATCM.'' \33\ There were also no comments arguing
that any new issues have been raised affecting the previously granted
authorization. CARB's 2007 Amendments and 2009 Amendments provide
compliance flexibilities and regulatory relief that would not appear to
raise any new issues affecting the previously granted authorization.
Thus, we cannot find that the 2007 or 2009 Amendments raise any new
issues affecting the previously granted authorization.
---------------------------------------------------------------------------

    \33\ California Authorization Support Document, at 14.
---------------------------------------------------------------------------

    CARB's 2010 Amendments, however, include some new or stricter
regulatory requirements, such as (i) requiring low-use and emergency
use engines to be removed or replaced with a current tier engine by
January 1, 2017 (which is earlier than originally required for some
engine sizes), (ii) no longer allowing local air districts to permit
non-certified engines that had operated between March 1, 2004 and
October 1, 2006, and (iii) specifying PM emission factors for certain
engines in order to help determine fleet average standards. These
amendments will be referred to herein as the ``New 2010 Requirements.''
Because these New 2010 Requirements raise new issues affecting the
authorization previously granted for the

Portable Engine ATCM, the New 2010 Requirements are not considered
within the scope of the prior authorization, and will need to be
evaluated for a full authorization.\34\
---------------------------------------------------------------------------

    \34\ Because the New 2010 amendments create both new and more
stringent emission requirements on the regulated parties, which are
the type of requirements otherwise preempted under section
209(e)(1), EPA considers such amendments to create ``new issues''
which require a full consideration of the authorization criteria
under section 209(e)(2)(A). Minor amendments to previously waived
standards that do not create additional burdens on the regulated
parties are considered under the within-the-scope criteria by EPA.
See 37 FR 14831 (July 25, 1972).
---------------------------------------------------------------------------

    In summary, for the 2007 and 2009 Amendments, we find that
California has met the three criteria for a within-the-scope
authorization approval, and these amendments are thus confirmed as
within the scope of the previous EPA authorization of California's
Portable Engine ATCM regulations. For the 2010 Amendments, while most
of the 2010 amendments are within the scope of the previous
authorization, the New 2010 Requirements are not within the scope of
the prior authorization, and we will proceed to determine whether the
New 2010 Requirements qualify for full authorization.

B. Full Authorization Discussion for the New 2010 Requirements

    As described in the background section, the CAA directs EPA to
grant authorization, unless EPA makes one of three possible findings:
(1) That California's protectiveness determination is arbitrary and
capricious, (2) that California does not need state standards to meet
compelling and extraordinary conditions, or (3) that the California
standards and accompanying enforcement procedures are not consistent
with section 209 of the Act. As mentioned above, the New 2010
Requirements to be evaluated for full authorization include the
amendments requiring low-use and emergency use engines to be removed or
replaced with a current tier engine by January 1, 2017, the amendments
no longer allowing local air districts to permit non-certified engines
that had operated between March 1, 2004 and October 1, 2006, and the
amendments specifying PM emission factors for certain engines in order
to help determine fleet average standards.
    Regarding the first possible finding, it is clear that California's
standards are at least as protective of public health and welfare as
applicable federal standards, especially since there are no federally
applicable standards to regulate in-use nonroad engines.\35\ No
comments presented otherwise, and the New 2010 Requirements at issue
make the standards more protective, not less. Therefore, we find that
California's protectiveness determination is not arbitrary and
capricious.
---------------------------------------------------------------------------

    \35\ California Authorization Support Document, at 11.
---------------------------------------------------------------------------

    Regarding the second possible finding, California reasserts its
longstanding position that the State continues to need its own nonroad
engine program to meet serious air pollution problems.\36\ CARB points
out that California, particularly in the South Coast and San Joaquin
Valley Air Basins, continues to experience some of the worst air
quality in the nation.\37\ We further note that the relevant inquiry
under section 209(e)(2)(A)(ii) is whether California needs its own
emission control program to meet compelling and extraordinary
conditions, not whether any given standard is necessary to meet such
conditions.\38\ CARB's emission control program is a central part of
California's efforts to improve its air quality, to meet its air
quality goals and satisfy its State Implementation Plan obligations. No
comments were submitted otherwise. Therefore, we cannot find that
California does not need its state standards to meet compelling and
extraordinary conditions in California.
---------------------------------------------------------------------------

    \36\ California Authorization Support Document, at 14-16.
    \37\ California Authorization Support Document, at 15.
    \38\ Final 209(e) Rule, 59 FR at 36982. The Administrator has
recognized that even if such a standard by standard test were
applied to California, it ``would not be applicable to its fullest
stringency due to the degree of discretion given to California in
dealing with its mobile source pollution problems.'' (41 FR 44209,
44213, (October 7, 1976); 49 FR 18887, 18892 (May 3, 1984).); see
also EPA's 2009 GHG Waiver Decision wherein EPA rejected the
suggested interpretation of section 209(b)(1)(B) as requiring a
review of the specific need for California's new motor vehicle
greenhouse gas emission standards as opposed to the traditional
interpretation (need for the program as a whole) applied to local or
regional air pollution problems.
---------------------------------------------------------------------------

    The third and final possible finding upon which authorization could
be denied is if the New 2010 Requirements are not consistent with
``this section.'' As discussed above, this requires evaluation of
consistency with sections 209(a), 209(e)(1), and 209(b)(1)(C). To be
consistent with section 209(a), the amendments must not apply to new
motor vehicles or motor vehicle engines. CARB states that none of its
Portable Engine ATCM requirements apply to new motor vehicles or motor
vehicle engines.\39\ No evidence has been received to the contrary.
Second, to be consistent with section 209(e)(1) of the Act, the
regulations must not attempt to regulate vehicles and engines
permanently preempted from state regulation by section 209(e)(1),
including new nonroad engines below 175 horsepower used in farm and
construction equipment and vehicles, or new locomotives or locomotive
engines. CARB states that none of its Portable Engine ATCM requirements
apply to these preempted vehicles or engines.\40\ Again, we received no
evidence to the contrary. We therefore cannot find that the New 2010
Requirements are inconsistent with sections 209(a) and 209(e)(1).
---------------------------------------------------------------------------

    \39\ California Authorization Support Document, at 11.
    \40\ California Authorization Support Document, at 11.
---------------------------------------------------------------------------

    Third, to be consistent with section 209(b)(1)(c), there must be
adequate lead time to permit technological development for compliance
with the new standards, and the state test procedures must not be made
inconsistent with federal test procedures.
    Regarding test procedures, CARB maintains that the amendments do
not alter any test procedures, and EPA does not have comparable in-use
standards and test procedures; thus, by definition, there is no
inconsistency with federal test procedures.\41\ No comments were
received otherwise. We therefore cannot find that the New 2010
Requirements are inconsistent with federal test procedures.
---------------------------------------------------------------------------

    \41\ California Authorization Support Document, at 14.
---------------------------------------------------------------------------

    Regarding the existence of adequate lead time, CARB maintains that
the New 2010 Requirements do not require development of new
technologies, and that EPA has already previously determined that
California's applicable Tier 1 through Tier 4 off-road compression
ignition engine standards are technically feasible,\42\ thus there is
no consistency issue presented with regard to lead time. As mentioned
above, we received no comment or evidence contesting California's
positions regarding the consistency criterion under section
209(b)(1)(c).The compliance date for low use and emergency use engines
is nearly the same as the original compliance date, and the two other
changes (i.e., elimination of discretionary permits by local air
districts, and specification of PM emission factors used to calculate
fleet average standards) likewise do not raise feasibility issues.
Thus, we cannot find any evidence indicating that the New 2010
Requirements do not provide adequate lead time or are otherwise not

technically feasible. We therefore cannot find that the New 2010
Requirements that we analyzed under the full authorization criteria are
inconsistent with section 209 of the Act.
---------------------------------------------------------------------------

    \42\ California Authorization Support Document, at 13, citing 75
FR 8056, 8060 (February 23, 2010).
---------------------------------------------------------------------------

    Having found that the New 2010 Requirements satisfy each of the
criteria for full authorization, and having received no contrary
evidence to contradict this finding, we cannot deny authorization of
the amendments.

III. Decision

    The Administrator has delegated the authority to grant California
section 209(e) authorizations to the Assistant Administrator for Air
and Radiation. After evaluating CARB's amendments to its Portable
Engine ATCM regulations described above and CARB's submissions for EPA
review, EPA is granting a within-the-scope authorization for the
Portable Engine ATCM 2007, 2009, and 2010 Amendments, other than the
New 2010 Requirements (as specified above). In addition, EPA is
granting a full authorization for the New 2010 Requirements.
    This decision will affect persons in California and those
manufacturers and/or owners/operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(e)(2)(A) authorization
has been granted if certain criteria are met, this decision would also
affect those states and those persons in such states. See CAA section
209(e)(2)(B). For these reasons, EPA determines and finds that this is
a final action of national applicability, and also a final action of
nationwide scope or effect for purposes of section 307(b)(1) of the
Act. Pursuant to section 307(b)(1) of the Act, judicial review of this
final action may be sought only in the United States Court of Appeals
for the District of Columbia Circuit. Petitions for review must be
filed by February 8, 2016. Judicial review of this final action may not
be obtained in subsequent enforcement proceedings, pursuant to section
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

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

    Dated: December 1, 2015.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2015-31043 Filed 12-9-15; 8:45 am]
 BILLING CODE 6560-50-P