26032 Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices 

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). 

3EPA–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). 

2. Tips for preparing your comments. 

When preparing and submitting your 

comments, see the commenting tips at 

http://www.epa.gov/dockets/

comments.html. 

II. Registration Applications 

EPA has received applications to 

register pesticide products containing 

active ingredients not included in any 

currently registered pesticide products. 

Pursuant to the provisions of FIFRA 

section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA 

is hereby providing notice of receipt and 

opportunity to comment on these 

applications. Notice of receipt of these 

applications does not imply a decision 

by the Agency on these applications. 

1. File Symbol: 86297–E. Docket ID 

number: EPA–HQ–OPP–2015–0169. 

Applicant: Dune Sciences, Inc, 1900 

Millrace Dr. Eugene, OR 97403. Product 

name: NSD20. Active ingredient: 

Materials preservative; silver 

nanoparticles at 0.45%. Proposed 

classification/Use: various materials, 

intermediate polymers, and coating 

solutions. Contact: AD. 

2. File Symbol: 524–AEG. Docket ID 

number: EPA–HQ–OPP–2015–0215. 

Applicant: Monsanto Company, 1300 I 

Street NW., Suite 450 East, Washington, 

DC 20005. Product name: Tioxazafen 

Technical (Wetcake). Active ingredient: 

Seed Treatment Nematicide; Tioxazafen 

(MON 102100) at 82.5%. Proposed Use: 

Corn, cotton, and soybeans. Contact: 

RD. 

3. File Symbol: 524–AEU. Docket ID 

number: EPA–HQ–OPP–2015–0215. 

Applicant: Monsanto Company, 1300 I 

Street NW., Suite 450 East, Washington, 

DC 20005. Product name: MON 102133 

SC Nematicide Seed Treatment. Active 

ingredient: Seed Treatment Nematicide; 

Tioxazafen (MON 102100) at 45.9%. 

Proposed Use: Corn, cotton, and 

soybeans. Contact: RD. 

Authority: 7 U.S.C. 136 et seq. 

Dated: April 27, 2015. 

Susan Lewis, 

Director, Registration Division, Office of 

Pesticide Programs. 

[FR Doc. 2015–10368 Filed 5–5–15; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 (202) 566–1744. 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: a-and-r-Docket@epa.gov, the 

telephone number is (202) 566–1742, 

and the fax number is (202) 566–9744. 

An electronic version of the public 

docket is available through the federal 

government’s electronic public docket 

and comment system. You may access 

EPA dockets at http://

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–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: (734) 214–4029. Fax: 

(734) 214–4053. Email: davis.julian@

epa.gov. 

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). 

California’s 1998 regulation 

established exhaust emission standards 

for outboard engines and personal 

watercraft. The 1998 regulation also 

established an accelerated 


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5Authorization Support Document at 4. EPA 

takes no position as to whether such provisions are 

subject to preemption in section 209(a) of the Act. 

6Authorization Support Document at. 3. 

7Authorization Support Document at 3. 

8States 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). 

9EPA’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). 

10See ‘‘Air Pollution Control; Preemption of State 

Regulation for Nonroad Engine and Vehicle 

Standards,’’ 59 FR 36969 (July 20, 1994). 

11See ‘‘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. 

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

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 onboard diagnostics systems; (9) New 

replacement engine flexibility; and (10) 

Modification to exhaust standards for 

high performance SD/I engines.6

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

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

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

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 


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13H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967). 

14S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967). 

15See Engine Manufacturers Association v. EPA, 

88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was 

within the bounds of permissible construction in 

analogizing § 209(e) on nonroad sources to § 209(a) 

on motor vehicles.’’ 

16See 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. 

18See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 

19See ‘‘California State Motor Vehicle Pollution 

Control Standards; Amendments Within the Scope 

of Previous Waiver of Federal Preemption,’’ 46 FR 

36742 (July 15, 1981). 

20 40 FR 23102, 23103–23104 (May 28, 1975). 

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. 

24 MEMA I, at 1121. 

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

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

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). 

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

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

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

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

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 


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25 Id. at 1126. 

26 Id. at 1126. 

27 Id. at 1122. 

28 Id. 

29 Id. 

30 Id. 

31See, e.g., ‘‘California State Motor Vehicle 

Pollution Control Standards; Waiver of Federal 

Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103. 

32 78 FR 50412 (August 19, 2013). 

capricious.’ ’’ 25 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 26

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

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

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

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

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. 

First, EPA requested comment on 

whether the 2008 amendments for 

which CARB requested a within-thescope 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 


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33See 40 CFR 1065.901 through 1065.940. 

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

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 


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34CARB 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. 

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-thescope 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-thescope 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 onboard 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-thescope 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 Californiacertified 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 


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35 Id. 

36EPA 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-thescope analysis are met. 

37Summaries of the OBD–M and HPE exhaust 

standards amendments are provided in the withinthe-scope amendments section of this document. 

the previously authorized Marine SI 

regulations. 

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. 

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-thescope criteria is not satisfied, EPA shall 

consider these amendments under the 

full authorization criteria, and will 

analyze them as such.36

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. 

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, 


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38 72 FR 28098, Control of Emissions from 

Nonroad Spark-Ignition Engines and Equipment. 

39CCR 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. 

40See CARB Resolution 98–63, EPA–HQ–OAR– 

2013–0024–0014. 

41 72 FR14546 (March 28, 2007). 

42Authorization Support Document at 13. 

43See 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.’’ 

44Final 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).) 

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. 

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. 

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

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 highperformance 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 


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45See 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. 

46We 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. 

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. 

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 ozoneforming 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

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 


tkelley on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices 26041 

1 60 FR 37440 (July 20, 1995). 

2 65 FR 69763 (November 20, 2000). 

3 62 FR 200 (January 2, 1997). 

4 65 FR. 69767 (November 20, 2000). 

5 75 FR 8056 (February 23, 2010). 

6 71 FR 75536 (December 15, 2006). 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2014–0036; FRL–9927–31– 

OAR] 

California State Nonroad Engine 

Pollution Control Standards; Small OffRoad Engines Regulations; Notice of 

Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision. 

SUMMARY: The Environmental Protection 

Agency (EPA) is confirming that the 

California Air Resources Board’s (CARB) 

2008 amendments to its Small Off-Road 

Engines (SORE) regulation (2008 

Amendments) are within the scope of 

previous EPA authorizations. The 2008 

Amendments modify provisions 

through which manufacturers may 

generate and use emission credits to 

comply with SORE emission standards, 

and establish an ethanol blend 

certification fuel option. CARB’s SORE 

regulations apply to all small off-road 

engines rated at or below 19 kilowatts 

(kW) (25 horsepower (hp)). 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 action under Docket ID 

EPA–HQ–OAR–2014–0036. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

working days from 8:30 a.m. to 4:30 

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

Center’s Web site is http://www.epa.gov/ 

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-r-Docket@

epa.gov, the telephone number is (202) 

566–1742, and the fax number is (202) 

566–9744. An electronic version of the 

public docket is available through the 

federal government’s electronic public 

docket and comment system. You may 

access EPA dockets at http://

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2014–0036 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. Although a 

part of the official docket, the public 

docket does not include Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

Air Quality (OTAQ) maintains a Web 

page that contains general information 

on its review of California waiver and 

authorization requests. Included on that 

page are links to prior waiver Federal 

Register notices, some of which are 

cited in today’s notice; the page can be 

accessed at http://www.epa.gov/otaq/

cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

Brenton Williams, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105. Telephone: (734) 214–4341. Fax: 

(734) 214–4053. Email: williams.brent@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

CARB first adopted standards and test 

procedures applicable to SORE in 1992. 

In 1993, CARB amended these 

regulations to delay their 

implementation until 1995. EPA 

authorized these initial SORE 

regulations in 1995.1 California 

subsequently amended its regulations in 

1994, 1995, and 1996 to clarify 

certification and implementation 

procedures, exempt military tactical 

equipment, and relax emissions 

standards for certain engines. EPA 

authorized these three amendment 

packages in 2000.2

In 1998, CARB amended the SORE 

regulation to apply to all engines rated 

less than 19 kW used in off-road 

applications. The 1998 amendments 

also revised the regulations to be based 

on engine displacement instead of 

whether the engine is used in a 

handheld or non-handheld application, 

delayed implementation of certain 

portions of the standards, and adopted 

new emission standards for new engines 

under 19 kW, consistent with the 

‘‘Compression-Ignition Engine 

Statement of Principles’’ jointly entered 

into by CARB, EPA, and engine 

manufacturers in August 1996.3 EPA 

found these amendments to be within 

the scope of the previously granted 1995 

authorization.4

In 2000, CARB amended the SORE 

regulations by recodifying the 

requirements applicable to certain new 

compression ignition (CI) engines. EPA 

found this amendment to be within the 

scope of the previously granted SORE 

authorization.5 In 2004, CARB amended 

its off-road CI regulations to match 

federal standards and exhaust emissions 

standards, and adopted evaporative 

emissions standards for spark-ignited 

(SI) small off-road engines rated at or 

below 19 kW. EPA granted full 

authorizations for these amendments in 

2006.6

A. California’s Authorization Request 

On November 21, 2008, CARB 

approved three additional amendments 


tkelley on DSK3SPTVN1PROD with NOTICES