BEFORE THE 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

In the Matter of California’s Request for 

Authorization Action Pursuant to Clean Air 

Act Section 209(e) for California’s 

Regulation to Reduce Emissions from 

Diesel Engines on Commercial Harbor 

Craft Operated Within California Waters 

and 24 Nautical Miles of the California 

Baseline 

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CLEAN AIR ACT § 209(e)(2) AUTHORIZATION SUPPORT DOCUMENT 

 SUBMITTED BY THE 

 CALIFORNIA AIR RESOURCES BOARD

APRIL 12, 2010 

I. INTRODUCTION 

The California Air Resources Board (CARB or Board) requests that the Administrator of 

the U.S. Environmental Protection Agency (EPA) grant California a new authorization 

under Clean Air Act (CAA) section 209(e)(2) for the emission standards, other 

requirements relating to the control of emissions, and accompanying enforcement 

provisions applicable to diesel engines on commercial harbor craft (CHC) operated 

within Regulated California Waters (hereinafter, “CHC regulation” or “regulation”).1 The 

CHC regulation establishes requirements applicable to both new and in-use diesel 

engines on commercial harbor craft, and is projected to reduce baseline 2004 emissions 

levels of diesel particulate matter (PM) by 75 percent and oxides of nitrogen (NOx) by 

60 percent when it is fully implemented in 2025. 

At its November 15, 2007 public hearing, the Board approved the CHC regulation by 

Resolution 07-47.2

 At the direction of the Board, after making modifications to the 

regulation available for supplemental public comment, CARB’s Executive Officer 

formally adopted the rulemaking in Executive Order R-08-007 on September 2, 2008 

(Enclosure 11). The CHC regulation was submitted to California’s Office of 

Administrative Law (OAL) for review on September 5, 2008, and was approved by OAL 

and filed with California’s Secretary of State on October 20, 2008. The CHC regulation 

became operative under state law on November 19, 2008. 

 

1

 The specific regulatory text enacted by the CHC regulation is set forth in title 13, California Code of 

Regulations (CCR), section 2229.5 and title 17, CCR section 93118.5 (Reference 15). 2

 Enclosure 10. 
2

Section II describes the CHC regulation. Section III describes the criteria for granting 

authorizations and demonstrates that the Commercial Harbor Craft regulation meets the 

criteria for the requested authorization action. 

II. SUMMARY OF THE COMMERCIAL HARBOR CRAFT REGULATORY 

 REQUIREMENTS 

A. Background 

A summary of the emissions-related and accompanying enforcement provisions of the 

regulation that require authorization follows. A more detailed description of these 

provisions is provided in the Staff Report: Initial Statement of Reasons (Staff Report, 

Enclosure 2) and the Technical Support Document (TSD, Enclosure 3). Commercial 

harbor craft include a variety of vessel types, including ferries, excursion vessels, 

tugboats, towboats, and commercial and charter fishing boats. Approximately 80 

percent of all harbor craft engines are presently unregulated (Tier 0) diesel engines. 

Commercial harbor craft operating in California emit approximately 3.3 tons per day 

(tpd) of diesel particulate matter (PM) and 73 tpd of oxides of nitrogen (NOx), which 

significantly contribute to California’s ambient PM2.5 levels and need to be reduced so 

that California can meet the 2014 National Ambient Air Quality Standards (NAAQS) 

deadline for PM2.5 in the South Coast Air Basin (SCAB). 

B. Requirements for New Harbor Craft Acquired for Use in California 

Waters 

 

The CHC regulation establishes requirements for diesel propulsion and auxiliary 

engines installed in new harbor craft acquired on or after January 1, 2009 for use in 

California waters. 

1. New Harbor Craft, Including New Ferries 

New harbor craft vessels, including ferries, may not be sold, offered for sale, leased, 

rented, or acquired unless each propulsion and auxiliary diesel engine on the vessel is 

certified to the most stringent federal new marine engine emission standards for the 

engines’ power rating and displacement in effect at the time any one of the 

aforementioned actions occur. 

2. Additional Requirements for Larger New Ferries 

If a new ferry with a capacity to transport 75 or more passengers complies with the 

requirements of section II.B.1. above by being equipped with diesel propulsion engines 

that either meet the federal Tier 2 or Tier 3 new marine engine emission standards, the 

propulsion engines must have the best available control technology (BACT) installed on 

those engines. Alternatively, if a new ferry complies by having a federal Tier 4 certified 

propulsion engine, BACT is not required. 
3

BACT is the diesel emission control strategy (DECS) determined by CARB’s Executive 

Officer to provide, or is expected to provide, the greatest feasible reductions 

of NOx or diesel PM when used with the ferry’s propulsion engines and does not result 

in an increase of 10 percent or more of any air pollutant, including NOx or diesel PM, 

relative to the engine’s emissions of that air pollutant without the use of BACT, and the 

DECS manufacturer or an authorized dealer of the DECS has determined or otherwise 

agrees with the Executive Officer that use of the DECS on or with the new ferry’s 

propulsion engine(s) would not invalidate or otherwise adversely affect the propulsion 

engine’s original warranty.3

 

C. Requirements for In-Use Harbor Craft 

 1. Newly Acquired New or In-Use Engines for In-Use Harbor Craft 

Effective January 1, 2009, with one noted exception,4 new or in-use diesel engines for 

in-use harbor craft may not be sold, offered for sale, leased, rented, or acquired unless 

the diesel propulsion or auxiliary engines are certified to at least federal Tier 2 or Tier 3 

marine emission standards for a new engine of the same power rating and 

displacement that were in effect at the time any one of the aforementioned actions 

occur.5 This provision ensures that as older engines on in-use vessels are retired, they 

are replaced with cleaner Tier 2 or Tier 3 certified marine engines.6

 

 2. In-Use Requirements for Tier 0 and Tier 1 Marine Engines in 

 Ferries, Excursion Vessels, Tugboats, Towboats, Push Boats, and 

 Multipurpose Harbor Craft 

a. In-Use Emission Requirements 

The CHC regulation requires that in-use Tier 0 and Tier 1 propulsion and auxiliary 

marine engines on ferries, excursion vessels, tugboats, and towboats meet emission 

limits equal to or cleaner than the federal new marine engine certification standards7

 in 

effect for the year that in-use engine compliance is required. A compliance schedule, 

designed to clean up the oldest and dirtiest high use engines first, is based on the inuse engine model year and hours of operation. The regulation includes an accelerated 

 

3

 17 CCR section 93118.5(e)(5)(C). 

4

 A newly acquired engine does not need to meet the marine engine standards in effect at the time the 

engine was acquired if it was manufactured before the effective date of new marine engine emission 

standards and is acquired by the vessel owner or operator no later than six months after the effective 

date of the new marine standard. This allows engine retailers six months to sell in-stock engines after 

new standards become effective. 

5

 A newly acquired engine is not required to meet Tier 4 standards unless it is replacing a Tier 4 certified 

engine. 

6

 Owners or operators may install Tier 3 engines on in-use vessels as replacement engines after the 

Tier 4 marine standards take effect, but only if the engine to be replaced was not a Tier 4 certified engine 

(see footnote 5). 

7

 See Table 4 of the Staff Report, and Tables II-3 through II-5 of the Technical Support Document and 

the discussion of EPA’s promulgation of emission standards and effective dates at pages 7-9 of the Staff 

Report 
4

compliance schedule for harbor craft with home ports in the South Coast Air Basin 

(SCAB), which is in non-attainment for both ozone and PM2.5 8 Vessel owners or 

operators may comply by replacing an in-use engine with a new engine, or by 

demonstrating that an existing engine meets the Tier 2 or Tier 3 standards (e.g., 

through utilization of engine rebuild kits or aftertreatment technologies), or that the 

vessel has not and will not operate more than 300 hours in a year. 

In determining a vessel’s compliance date, the regulation considers the engine’s model 

year, which in most cases is the year of manufacture. However, the compliance date 

may be extended beyond the date based on the year the engine was manufactured if 

the owner or operator takes certain actions before compliance is otherwise required. 

For vessels ported outside the SCAB, the compliance date may be delayed up to five 

years if the owner or operator of the vessel implements an emission control strategy 

that achieves at least a 25 percent reduction in either PM or NOx engine emissions. 

Regardless of a vessel’s home port, its compliance date may be extended beyond the 

compliance year based on engine manufacture if the vessel’s engine is rebuilt to at least 

Tier 1 standards prior to January 1, 2008. In such cases, the engine’s rebuild date can 

be used as its model year for determining compliance with the in-use requirements. 

 

b. Compliance Flexibility 

The CHC regulation includes several provisions that provide vessel owners or operators 

with flexibility in complying with the in-use emissions requirements applicable to ferries, 

excursion vessels, tugboats, towboats, push boats, and multipurpose harbor craft. 

 (i) General Compliance Date Extensions 

Compliance extensions from the in-use emissions requirements are available if: an 

engine’s annual hours of operation significantly increased during the year before its 

anticipated compliance date such that the effective compliance date would be 

accelerated to an earlier compliance date; there is no suitable engine replacement 

available anywhere that can be used in the specific vessel; engine repower delays 

result from engine manufacturer delays and/or installation difficulties; or an owner has a 

fleet of two or more vessels, and two or more engines on those vessels have 

compliance dates of 2009 or 2010. 

 

 

8

 See Tables 7 and 8 in 17 CCR section 93118.5(e)(6)(D). Vessels both within and without the South 

Coast Air Basin (SCAB) must demonstrate compliance beginning December 31, 2009. Tier 0 marine 

engines in the SCAB must fully comply with the in-use requirements by December 31, 2013; Tier 0 

marine engines outside the SCAB must comply by December 31, 2016. Tier 1 engines in the SCAB must 

fully comply by December 31, 2020, and Tier 1 engines outside the SCAB must fully comply by December 

31, 2022. 
5

 (ii) CHC regulation exemptions 

Engines on the following vessel types are entirely exempted from the regulation: military 

tactical support vessels, U.S. Coast Guard vessels, vessels traversing California coastal 

waters without stopping and without entering any California inland waterway or port 

(except in emergency situations or if needed to comply with U.S. Coast Guard 

regulations), temporary emergency rescue/recovery vessels, engines on recreational 

vessels, engines on ocean-going vessels (except ocean-going tugboats and towboats), 

vessel engines, including those on barges, that are registered with CARB’s Portable 

Engine Registration Program (PERP) before January 1, 2009, registered with PERP on 

or after January 1, 2009, and not permanently affixed to the vessel, and registered or 

permitted under local air district regulations before January 1, 2009. 

The following engines are exempted from the in-use emissions requirements applicable 

to engines in ferries, excursion vessels, tugboats, towboats, push boats, and 

multipurpose harbor craft, but remain subject to all other regulatory requirements: 

engines on registered historic vessels, engines rated less than 50 horsepower (hp), 

engines operated less than 300 hours per calendar year, engines on a vessel 

scheduled to be retired within one year of the engines’ compliance date, and engines on 

a temporary replacement vessel (require approval from CARB’s Executive Officer to 

operate in California). 

D. Requirements for Both New and In-Use Harbor Craft 

1. Monitoring, Reporting, and Recordkeeping Requirements 

Owners or operators of both new and in-use harbor craft must install (if not already 

installed), a non-resettable hour meter on each engine, and submit an initial report 

providing CARB with contact information, vessel, emission control system (if 

applicable), and engine information, including annual hours operated and location. 9 

Ferry, excursion, tugboat, towboat, push boat, and multipurpose harbor craft owners or 

operators must also specify how they plan to comply with the regulation’s in-use engine 

requirements. Vessel owners or operators must keep a copy of the completed initial 

reporting form and yearly updates on the vessel or in a central dockside location to be 

made available upon request of the CARB staff. Additional reporting is required if there 

is a change of ownership, a change of hours of operation, upon the purchase of new 

vessels or engines, and upon compliance with the in-use engine requirements. 

 2. Alternative Control of Emissions (ACE) 

The regulation provides harbor craft owners or operators an alternative means of 

complying with the CHC regulation’s hour-meter and new vessel and in-use emissions 

requirements if they implement alternative emission control strategies demonstrated to 

achieve diesel PM and NOx emission reductions equivalent to or greater than the 

 

9

 To the extent that the above information is used for emission inventory purposes, authorization is not 

required. 
6

reductions required by the primary compliance requirements. Alternative strategies can 

include engine modifications, exhaust after-treatment control, engine repower, use of 

alternative fuels or fuel additives, or fleet averaging. ACE applications must be 

approved by CARB’s Executive Officer. If CARB’s Executive Officer approves an 

application to utilize an ACE strategy, the successful applicant must maintain specified 

records and test records for the lifetime of each engine. 

III. AUTHORIZATION CRITERIA AND ANALYSIS 

A. Criteria for Granting Authorizations Under CAA Section 209(e) 

Section 209(e)(2) of the CAA sets forth the protocol for the Administrator to grant 

California authorization to adopt and enforce standards and other requirements relating 

to controlling emissions from new and in-use nonroad engines that are not conclusively 

preempted by section 209(e)(1) – new engines less than 175 hp used in farm and 

construction equipment and vehicles and new engines used in new locomotives and 

locomotive engines. Section 209(e)(2) directs the Administrator to grant California an 

authorization for standards and requirements for all other nonroad engines if California 

determines that the state’s standards will be, in the aggregate, at least as protective of 

public health and welfare as applicable federal standards, unless she finds that: (1) the 

protectiveness finding of the state is arbitrary and capricious; (2) California does not 

need separate state standards to meet compelling and extraordinary conditions; or (3) 

the state standards and accompanying enforcement procedures are not consistent with 

CAA section 209.

In its 209(e) Final Rule, EPA interpreted “not consistent with section 209” to mean that 

those challenging a California authorization request must show that the State’s 

standards and accompanying enforcement provisions are not consistent with sections 

209(a), 209(b)(1)(C) – that the standards are not consistent with CAA section 202(a) – 

and 209(e)(1).10 

 B. The Administrator Must Grant California Authorization for the 

 Commercial Harbor Craft New Vessel Requirements 

CARB submits that for the reasons set forth below and in the Staff Report and Technical 

Support Document for the regulation’s rulemaking, the Administrator must grant 

California a new authorization for the requirements applicable to diesel engines on new 

and in-use harbor craft because no basis exists under the criteria of CAA section 

209(e)(2) for the Administrator to deny California’s request. 

1. Protectiveness Determination 

In adopting the Commercial Harbor Craft regulation, the Board approved Resolution 

07-47 (Reference 10), in which it expressly declared: 

 

10 59 Fed.Reg. 36969, 36983 (July 20, 1994). 
7

 BE IT FURTHER RESOLVED that the Board hereby determines, in accordance 

 with section 209(e)(2) of the CAA, that to the extent the regulation approved 

 herein affects nonroad engines as defined in CAA section 216(10) and (11), the 

 emission standards and other requirements related to the control of emissions in 

 the regulation approved herein are, in the aggregate, at least as protective of 

 public health and welfare as applicable federal standards; California needs its 

 nonroad emission standards to meet compelling and extraordinary conditions; 

 and the standards and accompanying enforcement procedures approved herein 

 are consistent with CAA section 209. 

No basis exists for the Administrator to find that the Board’s determination is arbitrary or 

capricious. The CHC regulation requires new diesel engines in newly acquired harbor 

craft to comply with applicable federal Tier 2 through Tier 4 emissions standards in 

effect on the date that a prohibited action occurs, and expressly incorporates those 

federal emission standards into the regulation.11 Given that California’s requirements 

for new diesel engines in newly acquired harbor craft are identical to the federal 

requirements applicable to those engines, the Board’s determination of protectiveness 

for these new engine requirements is clearly well founded. 

The Board’s protectiveness determination also extends to the requirements for new 

propulsion diesel engines in larger new ferries. This requirement is clearly more 

stringent than applicable federal Tier 2 or Tier 3 standards for new marine engines, as it 

requires the owners or operators of vessels to also incorporate BACT on the vessels’ 

engines.12 CARB’s Executive Officer will determine BACT for each engine on a caseby-case basis, which will help ensure that the NOx or diesel PM emissions from such 

engines are reduced to the greatest extent feasible beyond the federal Tier 2 and Tier 3 

marine engine emission standards.13 With respect to ferry propulsion engines subject to 

federal Tier 4 standards, the California and federal requirements are identical (i.e., ferry 

propulsion engines only need to comply with Tier 4 standards), so California’s 

requirements for these engines are clearly at least as protective as corresponding 

federal requirements for these engines. 

 

11 Title 17, California Code of Regulations (CCR) sections 93118.5(d)(76)-(78); 93118.5(e)(4). 12 The CHC regulation defines BACT as a diesel emission control strategy that is determined by CARB’s 

Executive Officer to: (1) provide or that is expected to continuously provide the greatest reduction 

feasible of NOx or diesel PM when used with the ferry’s propulsion diesel engine, (2) does not result in an 

increase of 10 percent or more of any air pollutant, including NOx and diesel PM, relative to the engine’s 

emissions of that air pollutant without the use of BACT; and (3) either the DECS manufacturer or an 

authorized dealer of the DECS determines or otherwise agrees with the E.O. that use of the DECS on or 

with the new ferry’s propulsion engine(s) would not invalidate or otherwise adversely affect the propulsion 

engine’s original warranty. 17 CCR section 93118.5(e)(5)(C). 13 CARB has also established an option allowing owners to install Tier 4 certified ferry propulsion engines, 

if they are available, in lieu of installing or using BACT on Tier 2 or Tier 3 engines, and only before the 

Tier 4 standards become effective. 
8

There is no question that the in-use requirements of the CHC regulation are more 

stringent than applicable federal regulations because EPA is without authority to 

regulate in-use nonroad engines.14

2. Compelling and Extraordinary Circumstances 

In adopting Resolution 07-47, the Board also confirmed CARB’s longstanding position 

that California continues to need its own nonroad engine program to meet serious air 

pollution problems. The Administrator has 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 CAA. 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.15 

3. Consistency with CAA Section 209 

As previously stated, section 209(e)(2) requires those opposing the granting of an 

authorization to show that the emission standards and accompanying enforcement 

provisions are not consistent with sections 209(a), (b)(1)(C), and (e). 

a. Consistent with CAA Section 209(a)

The new vessel requirements are consistent with CAA section 209(a), which preempts 

states and political subdivisions from adopting or attempting to enforce any standard 

relating to the control of emissions from new motor vehicles or new motor vehicle 

engines. The new diesel engines regulated by the new vessel requirements 

are neither new motor vehicles16 nor new motor vehicle engines, and clearly fall within 

the definition of nonroad engine established by Congress.17 

b. Consistent with CAA Section 209(e)(1)

The new vessel requirements are also consistent with section 209(e)(1), which prohibits 

states and local subdivisions from adopting or enforcing any standard or other 

requirement relating to the control of emissions of new nonroad less than 175 hp 

engines used in farm and construction equipment or engines used in new locomotives. 

 

14 See CAA section 213. 

15 Final 209(e) Rule, 59 Fed.Reg. 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 Fed.Reg. 44209, 44213, (October 7, 1976); 49 Fed.Reg. 18887, 18892 (May 3, 1984).) 16 The regulated engines are not “self-propelled vehicles designed for transporting persons or property on 

a street or highway” CAA section 216(2) 

17 “[A]n internal combustion engine (including the fuel system) that is not used in a motor vehicle or a 

vehicle used solely for competition, or that is not subject to standards promulgated under section 111 or 

section 202.” CAA section 216(10). 
9

Although some of the new diesel engines on new harbor craft may be rated at less than 

175 hp, those engines are not primarily used in farm and construction equipment and 

vehicles. 

c. Consistent with CAA Section 209(b)(1)(C)

CAA section 209(b)(1)(C) provides that no waiver shall be granted if the Administrator 

finds that the state standards and accompanying enforcement procedures are not 

consistent with section 202(a) of the CAA. EPA has historically interpreted consistency 

with section 202(a) using a two-pronged test: (1) that there is sufficient lead time to 

permit the development of technology necessary to meet the standards and other 

requirements, giving appropriate consideration to the cost of compliance in the time 

frame provided, and (2) that the California and federal test procedures are sufficiently 

compatible to permit manufacturers to meet both the state and federal test requirements 

with one test vehicle or engine.18 The reference to “cost of compliance” in CAA section 

202(a) refers to the economic costs of emission standards and accompanying 

enforcement procedures and the timing of a particular emission control regulation rather 

than to its social implications.19 

(i) New Vessel Engine Requirements 

The new vessel engine requirement that requires all diesel propulsion and auxiliary 

engines on newly acquired new vessels to meet applicable federal new marine engine 

Tier 2, 3, or 4 emission certification standards at the time the vessels are acquired, is 

clearly technologically feasible because it mirrors EPA’s already adopted new marine 

Tier 2, 3, and 4 emission standards, and because the technological feasibility and 

economic costs associated with each of those emissions standards has already been 

fully considered by EPA in its rulemakings promulgating these certification standards. 

No issue regarding test procedure inconsistency between federal and California test 

procedures exists because CARB has adopted EPA’s Tier 2, 3, and 4 federal marine 

engine test procedures for the covered engine classifications. Therefore, the 

Administrator cannot find that the California requirements are inconsistent with CAA 

section 209. 

(ii) Requirements for Larger New Ferry Propulsion Engines 

 (A) Technical Feasibility and Lead Time 

As previously explained in section II.B.2, the CHC regulation requires that prior to the 

date that new engines must be certified to Tier 4 emission standards, the diesel 

propulsion engines in newly acquired large new ferries must meet applicable Tier 2 or 

 

18 See 61 Fed.Reg. 53371, 53372 (October 11, 1996); Decision Document at p.2 (OBD II Waiver 

Decision). 19 Id., referencing See S. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965); H.R. Rep. No. 728, 90th Cong., 

1st Sess. 23 (1967), U.S. Code Cong. & Admin.News 1967, p. 1938; see also 74 Fed.Reg. 3030 (January 

16, 2009), Decision Document at p. 49. 
10

Tier 3 federal new marine engine emission standards in effect on the date the ferry is 

acquired and be equipped with BACT. Alternatively, if Tier 4 engines have been 

introduced early, the newly acquired vessels may be equipped with new diesel 

propulsion engines certified to Tier 4 standards, with no BACT required. Once the Tier 

4 standards are required, ferry owners or operators must install Tier 4 certified 

propulsion engines, and BACT is not required. 

For the reasons set forth in section III.B.3.c.(i) above, the new marine engine Tier 2, 3, 

and 4 emission standards are consistent with CAA section 209(b)(1)(C). To the extent 

that owners or operators elect to comply by meeting applicable Tier 2 or Tier 3 

standards with BACT, the BACT requirement is also technically feasible. 20 By 

definition, BACT is technically feasible in that it requires the best level of control that:

has been achieved in practice or (2) in the absence of any previously determined 

BACT determinations, on engineering evaluations and consideration of the best 

available information.21 BACT must be determined on a vessel-by-vessel basis, 

because the environmental operating conditions that control technologies will be 

exposed to can vary significantly from one application to another,22 and vessel-specific 

factors such as engine duty cycle, exhaust system configuration, engine placement in 

the hull, and weight of the emission control strategy components all affect the type of 

technologies that can be utilized in a specific vessel.23 To the extent that the Executive 

Officer determines that BACT for a specific ferry vessel is not available, use of Tier 2 or 

3 propulsion engines is all that would be required. 

As stated, if Tier 4 engines are available before they are required under the federal rule, 

owners or operators of new ferries may elect to comply by installing new Tier 4 engines 

instead of using Tier 2 or Tier 3 engines with BACT.24 This is a voluntary option, which 

will only be used if Tier 4 technology is available.25 This option is only available until the 

Tier 4 engine standards take effect. At that time, for the reasons specified in section 

III.B.3(c)(i), the technical feasibility of the Tier 4 standards should not be in question, 

having fully been evaluated by EPA in adopting the federal emission standards. 

A key element in considering the costs of compliance in the context of in-use 

regulations is whether the incurred costs can be passed on by engine and BACT 

 

20 The BACT requirements effectively apply only to the owners and operators of ferries, as they are the 

entities responsible for submitting BACT applications that contain specific vessel information and 

recordkeeping, reporting, and monitoring requirements, and for operating BACT in conjunction with a Tier 

2 or Tier 3 certified propulsion engine. TSD Section V.B.5.b.(iv), 17 CCR sections 93118.5(e)(5)(A)2, 

(e)(5)(D). As discussed in this section, BACT is determined on a case-by-case basis because it requires 

vessel-specific information –information that is uniquely available and within the control of ferry owners 

and operators. 

21 See, FSOR, Section III.F.(Comments 1-5 and Agency Responses thereto), pp. 31-32.; see also 

Appendix E to the TSD. 

22 FSOR, Section III.F, Agency Response to Comment 5. 23 Appendix E to TSD, p. E-1. These factors were also discussed in the context of selecting an 

Alternative Emission Control Strategy, but the vessel-specific considerations are equally applicable to 

BACT determinations for new ferry propulsion engines. TSD, Section VI.D. 

24 17 CCR section 93118.5(e)(5)(B). 25 74 Fed.Reg. 3030 January 16, 2009), Decision Document at 64. 
11

manufacturers to owners or operators, and whether those costs can in turn be passed 

on from ferry owners or operators to their passengers. In that regard, CARB has 

determined that ferry owners or operators will largely be able to pass on their 

compliance costs to their customers without incurring significant economic disruption.26 

In such situations, the Administrator has long deferred to California’s policy judgments, 

including judgments on costs that may have social implications and that pertain to costeffectiveness as opposed to direct compliance costs.27 Accordingly, for the reasons 

outlined above, the new ferry requirements are feasible within the time provided for 

compliance, giving appropriate consideration of costs. 

 

 (B) Consistency of Larger New Ferry Requirements with Federal Test 

Procedures

For the reasons outlined above, no issue regarding test procedure inconsistency 

between federal and California test procedures exists because CARB has adopted 

EPA’s Tier 2, 3, and 4 federal marine engine test procedures for the covered engine 

classifications. The BACT requirements do not present any issue of incompatibility 

between California and federal test procedures because EPA does not require ferry 

owners or operators to incorporate BACT on their vessels and BACT requirements are 

not a part of the federal testing program. 

(iii) In-Use Emission Requirements for Tier 0 and Tier 1 Marine Engines in 

Ferries, Excursion Vessels, Tugboats, Towboats, Push Boats, and 

Multipurpose Harbor Craft 

As described in section II.C.2 of this authorization request, the CHC regulation requires 

that owners of in-use ferries, excursion vessels, tugboats, towboats, push boats, and 

multipurpose harbor craft utilizing Tier 0 or Tier 1 marine engines demonstrate 

compliance with emission limits equivalent or cleaner than EPA’s Tier 2 or Tier 3 new 

marine engine certification standards by specified compliance dates. The schedule of 

compliance is based on the location of the vessel’s homeport, the vessel type, model 

year of the engine, and the engine’s annual hours of operation. 

The in-use emission requirements provide vessel owners with four compliance options: 

(1) replacing in-use engines with new engines certified to applicable Tier 2 or Tier 3 

 

26 See Resolution 07-47, Technical Support Document, section VIII.D and VIII.E; FSOR Section III.L.7 

27 MEMA I, 627 F.2d at 1118. See also 36 Fed.Reg. 17158 (August 31, 1971) [“The issue of whether a 

proposed California requirement is likely to result in only marginal improvement in air quality not 

commensurate with its cost or is otherwise an arguably unwise exercise of regulatory power is not legally 

pertinent to my decision under section 209. . . .”]; 40 Fed.Reg. 23102, 23104; 58 Fed.Reg. 4166 (January 

7, 1993), Decision Document, at p. 20 [“Since a balancing of these . . . costs against the potential benefits 

from reduced emissions is a central policy decision [of CARB in adopting the regulation] I believe I am 

required to give very substantial deference to California’s judgments on this score.”]; 74 Fed.Reg. 3030 

January 16, 2009), Transportable Refrigeration Unit Decision Document at 63 [“EPA believes that the 

CARB regulations are feasible with respect to cost objectively; i.e., all fleet operators face the same cost 

per unit to comply. While this cost may have different impacts on fleets of varying sizes, EPA recognizes 

that it is up to CARB to choose who it will regulate under its standards.”] 
12

standards, (2) demonstrating that the in-use engine already meets the most stringent 

Tier 2 or Tier 3 standards in effect for new engines of similar power rating and 

displacement, or (3) demonstrating that the in-use engine has not and will not operate 

more than 300 hours per calendar year. 28

(A) Technical Feasibility and Lead Time of In-Use Emission Requirements 

 for Ferries, Excursion Vessels, Tugboats, Towboats, Push Boats, and 

 Multipurpose Harbor Craft 

 

1. Engine Replacement is Technically Feasible 

CARB anticipates that the vast majority of vessel owners will comply with this 

requirement by replacing their in-use engines with new engines certified to either the 

applicable EPA Tier 2 or Tier 3 standards. As explained in section III.B.3.c.(i) of this 

document, EPA has considered both the technological feasibility and the economic 

costs associated with its Tier 2 and 3 new marine engine standards in its rulemaking 

actions that promulgated those emission standards, and has determined that those 

engine standards provide sufficient lead time to permit the development and application 

of requisite technology, giving appropriate consideration to the cost of compliance. The 

federal Tier 2 marine standards apply to 2004 through 2007 model year marine engines 

and are currently available for all engine powers and displacement. The federal Tier 3 

marine standards apply to 2009 through 2014 model year marine engines and are 

currently available for the smallest engines. As previously stated, EPA determined in 

adopting the federal marine rule that sufficient lead time has been provided for other 

Tier 3 engines categories for which certification is required between 2012 and 2014.29 

2. Demonstrating Compliance with Tier 2 and Tier 3 Standards 

An owner or operator may demonstrate that its vessel’s in-use engines currently meet 

Tier 2 or Tier 3 standards applicable to new engines of the same power rating and 

displacement.30 Possible means for demonstrating compliance include rebuilding in-use 

engines to cleaner emissions standards or implementing diesel emission control 

strategies, both of which are presently being utilized in marine applications. 31 

3. Demonstrating that a Vessel Will Not Operate More than 300 Hours in a 

Compliance Year 

A vessel owner can comply with the in-use emission requirements by demonstrating 

that an in-use engine has not and will not operate more than 300 hours per calendar 

 

28 17 CCR section 93118.5(e)(6)(C)1-4. 29ISOR section 12, TSD Section VI.B; 

 “[W]e believe these technologies [to comply with Tier 3 marine diesel engine standards] can be 

implemented for some engines as early as 2009, and for all engines by 2014 ...” 73 Fed. Reg. 25098, 

25136 (May 6, 2008). 

30 Compliance by meeting Tier 2 levels is only available before the date Tier 3 standards become 

effective for new engines of the same size and configuration as the in-use engine. 

31 TSD, Section VI.D and E.,and Appendix E and FSOR at pages 45-46. 
13

year. There should be no dispute that this is feasible, and CARB staff received no 

comments during the rulemaking process questioning the technical feasibility of this 

option. 

 4. Additional Flexibility Provided Through Exemptions and Compliance 

Extensions 

The compliance extensions and exemptions that were described in section II.C.2.b will 

provide vessel owners and operators enhanced flexibility to comply with the in-use 

emissions requirements. 

 

(B) Consistency with Federal Test Procedures 

The in-use emission requirements present no issue regarding incompatibility between 

California and federal test procedures. The compliance methods do not alter the test 

procedures specified for certifying federal Tier 2, 3, or 4 new marine engines. To the 

extent that the compliance methods apply to in-use modifications to existing engines, 

they are not inconsistent with federal test procedures simply because EPA does not 

have any comparable in-use standards and test procedures and lacks the authority to 

adopt such requirements.32 

(iv) The Alternative Control of Emissions (ACE) Provision of the CHC 

Regulation 

Title 17, CCR section 93118.5(f) provides vessel owners an alternative means of 

compliance with the in-use emission requirements of section 93118.5(e). Owners that 

use this compliance option must implement alternative emission control strategies that 

are demonstrated to provide diesel PM and NOx emission reductions equivalent to, or 

greater than, the emission reductions that would have been otherwise achieved under 

section 93118.5(e). Examples of possible alternative emission control strategies 

include engine modifications, exhaust aftertreatment controls, engine repowers, and use 

of alternate fuels or fuel additives. The technical feasibility of engine repowering was 

discussed in section III.B.3(c)(i) of this request. The technical feasibility of exhaust 

aftertreatment controls and engine rebuilding was discussed in section III.B.3(c)(ii)(A) of 

this request and the references to the Staff Report and TSD cited therein. 

The ACE provision presents no issue regarding incompatibility between California and 

federal test procedures because EPA does not have any comparable in-use standards, 

and lacks the authority to adopt such requirements.33 

 

(v) Accompanying Enforcement Requirements 

An integral component of the regulation requires fleet owners or operators to submit 

compliance reports and maintain records. Among other things, a new ferry owner must 

 

32 See CAA section 213; EMA v. U.S. EPA, supra, 88 F.3d 1075. 33 See CAA section 213; EMA v. U.S. EPA, supra, 88 F.3d 1075. 
14

specify and agree, at a minimum, to report and maintain records of (i) hours of operation 

for the engine and BACT and fuel usage, (ii) usage of any alternative fuels, additives, 

agents, flow rates, and emission test results, (iii) maintenance procedures for the 

engine(s) and its BACT, and (iv) any other measurements or recordings specified by the 

Executive Officer.34 Similarly, owners and operators of in-use vessels must report and 

maintain records that demonstrate compliance with the in-use emission requirements35

and eligibility for the compliance extensions available under title 17, CCR, section 

93118.5(e)(6)(E). The regulation also requires that all owners or operators have nonresettable hour meters installed on their vessels to record hours of operation and to 

provide accurate emission inventory information.36 

During the rulemaking process, no party alleged that the CHC regulation’s 

reporting and recordkeeping requirements were not capable of being 

implemented in the lead time provided or were inconsistent with federal test 

procedures. 

These accompanying enforcement provisions satisfy the criteria of a new authorization 

because they do not undermine the Board’s protectiveness determination. CARB fully 

considered these and other enforcement provisions when making its protectiveness 

finding, and consequently these provisions do not undermine its finding that the adopted 

emission standards are at least as protective as applicable federal requirements. The 

enforcement provisions further do not affect the technological feasibility of the 

requirements or mandate the use of incompatible test procedures. 

IV. CONCLUSION

Based on the foregoing, CARB respectfully requests that the Administrator grant 

California’s requests for the authorization action as described in this document pursuant 

to CAA section 209(e). To assist you in reviewing the requests, CARB is enclosing two 

CD-ROMs, each containing the following referenced documents to be included in the 

record of this waiver proceeding. 

Reference Materials from the Commercial Harbor Craft Regulation 

1. Public Hearing Notice, dated August 28, 2007. 

2. Staff Report: Initial Statement of Reasons for Proposed Rulemaking, with 

Appendix A. 

3. Technical Support Document With Appendices A through F 

 

34 17 CCR section 93118.5(e)(5)(D)(2)(b). 35 17 CCR sections 93118(h)(2) and (h)(3). 36 As previously stated, to extent that the meters are used for emissions inventory reporting no 

authorization is required. 
15

4. Errata: Correction of Internet Website Address, dated 

 September 7, 2007. 

5. Errata: Corrected Tables, dated September 11, 2007. 

6. Copy of Slides for Staff Presentation. 

7. Notice of Continuation of Public Hearing dated November 1, 2007. 

 

8. Notice of Availability of Modified Text, with Attachments 1 through 5, issued 

 June 18, 2008. 

 

9. Copy of Slides for Staff Presentation. 

10. Resolution 07-47, dated November 15, 2007, with Attachments B and C. 

11. Executive Order R-08-007, dated September 2, 2008. 

12. Final Statement of Reasons for Rulemaking, Including Summary of Comments 

and Agency Response. 

13. Transcript of October 26, 2007 Public Hearing in the Commercial Harbor Craft 

Regulation rulemaking. 

14. Transcript of November 15, 2007 Public Hearing in the Commercial Harbor Craft 

Regulation rulemaking. 

15. Fully endorsed STD 400 face sheet and Final Regulation Order as approved by 

OAL and filed with the Secretary of State January 18, 2007, for adoption of 

 title 13, California Code of Regulations, section section 2299.5, and adoption of 

title 17, California Code of Regulations, section 93118.5 and incorporated test 

procedures. 

16. Office of Administrative Law Approval Notice, dated October 20, 2008. 

CARB Contacts

Technical questions or requests for additional technical information on this item should 

be directed to Cherie Rainforth, Manager of the Control Strategies Section, at (916) 

327-7213. Legal questions should be directed to Alex Wang, Senior Staff Counsel, at 

(916) 323-9610.