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 


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7The specific regulatory text enacted by the 2008 

amendments is set forth in California Code of 

Regulations (CCR), title 13, sections 2401, 2403, 

2405, 2406, 2408, 2408.1 and 2409. 

8CARB Authorization Support Document, 

December 2, 2013, EPA–HQ–OAR–2014–0036– 

0003. 

9 Id. at 1. 

10 Id. at 4. 

11 Id. at 6. 

12 Id. at 10. 

13 Id. at 11–12. 

14 Id. at 12. 

15The federal term ‘‘nonroad’’ and the California 

term ‘‘off-road’’ are used interchangeably. 

16 Id. at 13. 

17States 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. 

18See ‘‘Air Pollution Control; Preemption of State 

Regulation for Nonroad Engine and Vehicle 

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

19See ‘‘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, 

§ 1074.105. 

20See supra note 12. EPA has interpreted 

209(b)(1)(C) in the context of section 209(b) motor 

vehicle waivers. 

to its SORE regulations: 7 (1) 

Modification of certification emissions 

credits to limit their lifetime to five 

years, and to allow electric equipment 

(zero-emissions equipment or ‘‘ZEE’’) to 

participate in the emission credits 

program; (2) modification of production 

emissions credits; and (3) establishment 

of an ethanol blend certification test fuel 

option, each of which will be addressed 

in turn.8 CARB seeks confirmation that 

the 2008 Amendments are within the 

scope of EPA’s previous authorizations 

of CARB’s SORE regulations.9

According to CARB, the certification 

emissions credits program was 

established in 1998 to provide 

manufacturers with additional 

flexibility in certifying engines. The 

certification credits program enabled 

manufacturers to generate credits when 

they certified engines that were cleaner 

than the SORE emission standards, and 

use those credits to offset emissions 

from ‘‘dirtier’’ engine families that could 

otherwise not meet the standards. CARB 

expected that the program would help 

manufacturers comply with the new 

emission standards, while also 

encouraging early introduction of 

cleaner technologies.10 However, while 

this program gave manufacturers 

flexibility, it did not result in use of 

advanced technologies at the 

anticipated pace. Manufacturers 

accumulated large credit balances, in 

part because the certification emission 

credits did not expire. CARB states that 

manufacturers were able to use banked 

emissions credits to certify ‘‘dirty’’ 

engines and delay implementation of 

cleaner technology, instead of using 

catalysts and other emission control 

technologies to reduce emissions on the 

more challenging engine families. Thus, 

CARB found that the original design of 

the emissions credit program slowed 

rather than promoted progress toward 

cleaner engines.11 CARB’s amendments 

to the certification emissions credits 

within the 2008 Amendments cause the 

credits to expire five years after their 

creation. The 2008 Amendments also 

modify the certification emissions credit 

program to allow electric equipment to 

participate for the first time. ZEE 

manufacturers will be allowed to 

generate emissions credits for 

equipment that meets certain 

performance and design requirements. 

CARB anticipates this change will 

encourage manufacturers to develop 

professional-grade ZEE and allow 

manufacturers greater flexibility in their 

introduction of such equipment.12

CARB states that the production 

emissions credits, which manufacturers 

could convert to certification emissions 

credits, also contributed to an 

overabundance of the latter form of 

credits.13 Under CARB’s earlier SORE 

regulation, manufacturers could 

generate production emission credits 

when a production engine’s emissions 

were below the applicable engine family 

emissions limit. CARB established the 

production credits program to help 

manufacturers offset compliance 

problems, but as of 2008, no 

manufacturer needed to use production 

credits for that purpose, using them 

instead to generate large certification 

emissions credit balances. The 2008 

Amendments eliminated generation of 

production emission credits beginning 

in 2009, but allowed manufacturers to 

convert production emission credits to 

certification emission credits for an 

additional year.14

Finally, CARB’s amended SORE 

regulations permit manufacturers the 

option to use a certification fuel with up 

to ten percent ethanol content 

(commonly known as E10) if the same 

fuel is used for certification with EPA. 

CARB asserts that this will enhance 

harmonization with EPA’s nonroad 15

certification procedures, and could 

reduce testing costs for some 

manufacturers.16

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.17 For 

all other nonroad engines (including 

‘‘non-new’’ engines), states generally are 

preempted from adopting and enforcing 

standards and other requirements 

relating to the control of emissions, 

except that section 209(e)(2)(A) of the 

Act requires EPA, after notice and 

opportunity for public hearing, to 

authorize California to adopt and 

enforce such regulations unless EPA 

makes one of three enumerated findings. 

Specifically, EPA must deny 

authorization if the Administrator finds 

that (1) California’s protectiveness 

determination (i.e., that California 

standards will be, in the aggregate, as 

protective of public health and welfare 

as applicable federal standards) is 

arbitrary and capricious, (2) California 

does not need such standards to meet 

compelling and extraordinary 

conditions, or (3) the California 

standards and accompanying 

enforcement procedures are not 

consistent with section 209 of the Act. 

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.18 EPA revised these 

regulations in 1997.19 As stated in the 

preamble to the 1994 rule, EPA 

historically has interpreted the 

consistency inquiry under the third 

criterion, outlined above and set forth in 

section 209(e)(2)(A)(iii), to require, at 

minimum, that California standards and 

enforcement procedures be consistent 

with section 209(a), section 209(e)(1), 

and section 209(b)(1)(C) of the Act.20

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 


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21See 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.’’ 

22See supra note 12, at 36983. 

23 ‘‘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. 

24See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

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

25See ‘‘California State Motor Vehicle Pollution 

Control Standards; Amendments Within the Scope 

of Previous Waiver of Federal Preemption,’’ 46 FR 

36742 (July 15, 1981). 

26 40 FR 23103–23104 (May 28, 1975); see also 

LEV I Decision Document at 64 (58 FR 4166 

(January 13, 1993)). 

27 40 FR 23104; 58 FR 4166. 

28 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 

294, 95 Cong., 1st Sess. 301–02 (1977). 

29 MEMA I, supra note 19, at 1121. 

a motor vehicle waiver if she finds that 

California ‘‘standards and 

accompanying enforcement procedures 

are not consistent with section 202(a)’’ 

of the Act. Previous decisions granting 

waivers and authorizations have noted 

that state standards and enforcement 

procedures will be found to be 

inconsistent with section 202(a) if (1) 

there is inadequate lead time to permit 

the development of the necessary 

technology, giving appropriate 

consideration to the cost of compliance 

within that time, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

In light of the similar language of 

sections 209(b) and 209(e)(2)(A), EPA 

has reviewed California’s requests for 

authorization of nonroad vehicle or 

engine standards under section 

209(e)(2)(A) using the same principles 

that it has historically applied in 

reviewing requests for waivers of 

preemption for new motor vehicle or 

new motor vehicle engine standards 

under section 209(b).21 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),22 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.23

This principle of narrow EPA review 

has been upheld by the U.S. Court of 

Appeals for the District of Columbia 

Circuit.24 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 

were previously authorized by EPA, 

California may ask EPA to determine 

that the amendments are within the 

scope of the earlier authorization. A 

within-the-scope determination for such 

amendments is permissible without a 

full authorization review if three 

conditions are met. First, the amended 

regulations must not undermine 

California’s previous determination that 

its standards, in the aggregate, are as 

protective of public health and welfare 

as applicable federal standards. Second, 

the amended regulations must not affect 

consistency with section 209 of the Act, 

following the same criteria discussed 

above in the context of full 

authorizations. Third, the amended 

regulations must not raise any ‘‘new 

issues’’ affecting EPA’s prior 

authorizations.25

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. This 

has led EPA to state: 

It is worth noting * * * I would feel 

constrained to approve a California approach 

to the problem which I might also feel unable 

to adopt at the federal level in my own 

capacity as a regulator. The whole approach 

of the Clean Air Act is to force the 

development of new types of emission 

control technology where that is needed by 

compelling the industry to ‘‘catch up’’ to 

some degree with newly promulgated 

standards. Such an approach * * * may be 

attended with costs, in the shaped 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.26

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.27

The House Committee Report 

explained as part of the 1977 

amendments to the Clean Air Act, 

where Congress had the opportunity to 

restrict the waiver provision, it elected 

instead to explain California’s flexibility 

to adopt a complete program of motor 

vehicle emission controls. The 

amendment is intended to ratify and 

strengthen the California waiver 

provision and to affirm the underlying 

intent of that provision, i.e., to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare.28

E. Burden and Standard of Proof 

As the U.S. Court of Appeals for the 

D.C. Circuit has made clear in MEMA I, 

opponents of a waiver request by 

California bear the burden of showing 

that the statutory criteria for a denial of 

the request have been met: 

[T]he language of the statute and its 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they must comply with the statute, when 

presented to the Administrator are presumed 

to satisfy the waiver requirements and that 

the burden of proving otherwise is on 

whoever attacks them. California must 

present its regulations and findings at the 

hearing and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.29

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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30 Id. at 1126. 

31 Id. at 1126. 

32 Id. at 1122. 

33 Id. 

34 Id. 

35 Id. 

36See, e.g., ‘‘California State Motor Vehicle 

Pollution Control Standards; Waiver of Federal 

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

37See ‘‘California State Nonroad Engine Pollution 

Control Standards; Small Off-Road Engines; Request 

for Within-the-Scope and Full Authorization; 

Opportunity for Public Hearing and Comment,’’ 79 

FR 30610 (May 28, 2014). 

38See EPA–HQ–OAR–2014–0036–0016. 

39 2013 Request, supra note 1, at 8–9. 

40 Id. at 7–8. 

41 Id. at 9–10. 

42 Id. at 10. 

capricious.’ ’’ 30 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 31

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.32

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.’’ 33

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.34 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.35

With respect to the consistency 

finding, the court did not articulate a 

standard of proof applicable to all 

proceedings, but found that the 

opponents of the waiver were unable to 

meet their burden of proof even if the 

standard were a mere preponderance of 

the evidence. Although MEMA I did not 

explicitly consider the standards of 

proof under section 209 concerning a 

waiver request for ‘‘standards,’’ as 

compared to a waiver request for 

accompanying enforcement procedures, 

there is nothing in the opinion to 

suggest that the court’s analysis would 

not apply with equal force to such 

determinations. EPA’s past waiver 

decisions have consistently made clear 

that: ‘‘[E]ven in the two areas 

concededly reserved for Federal 

judgment by this legislation—the 

existence of ‘compelling and 

extraordinary’ conditions and whether 

the standards are technologically 

feasible—Congress intended that the 

standards of EPA review of the State 

decision to be a narrow one.’’ 36

F. EPA’s Administrative Process in 

Consideration of California’s SORE 

Amendment Requests for Authorization 

On May 28, 2014, EPA published a 

Federal Register notice announcing its 

receipt of California’s authorization 

request. In that notice, EPA invited 

public comment on each of the 2008 

amendments and an opportunity to 

request a public hearing.37

First, EPA requested comment on the 

2008 amendments, as follows: (1) 

Should California’s 2008 SORE 

amendments be considered under the 

within-the-scope analysis, or should 

they be considered under the full 

authorization criteria?; (2) If those 

amendments should be considered as a 

within-the-scope request, do they meet 

the criteria for EPA to grant a withinthe-scope confirmation?; and (3) If the 

amendments should not be considered 

under the within-the-scope analysis, or 

in the event that EPA determines they 

are not within the scope of the previous 

authorization, do they meet the criteria 

for making a full authorization 

determination? 

EPA received one anonymous written 

comment that opposed ‘‘any new 

Regulation or Rule promulgated by EPA 

on California State Non Road Engine 

Pollution Control Standards: Small offRoad Engines Regulations.’’ 38 EPA is 

not promulgating any regulations or 

rules regarding California’s SORE 

regulations, but rather is adjudicating 

whether or not the amendments that 

CARB made to its own SORE 

regulations are within the scope of 

previous authorizations granted by EPA 

or fulfill the criteria for a full 

authorization under the Clean Air Act. 

EPA received no requests for a public 

hearing. Consequently, EPA did not 

hold a public hearing. 

II. Discussion 

A. California’s 2008 SORE Amendments 

The 2008 amendment package 

contains three amendments: (1) The 

modification of certification emission 

credits and creation of ZEE certification 

emissions credits; (2) the modification 

of production emission credits; and (3) 

the addition of an ethanol blend 

certification fuel option. 

1. Modification of Certification 

Emission Credits and Creation of ZEE 

Certification Emissions Credits 

California’s request for authorization 

of the amendments limiting the lifetime 

of certification emissions credits to five 

years and permitting emissions credit 

generation for ZEE are interrelated, and 

therefore will be treated together in this 

discussion. As explained by CARB in its 

2013 authorization request, certification 

emissions credits under the pre-2008 

regime ‘‘continued in existence even 

after the engines that had generated the 

emission credits had been taken out of 

service.’’ Thus, ‘‘[i]nstead of using 

catalysts and other advanced 

technologies on the more challenging 

engine families, a small number of 

manufacturers have often been able to 

use banked credits to . . . delay 

implementation of cleaner 

technology.’’ 39 CARB found that the 

certification emissions credit program 

achieved only mixed results in 

promoting the development of loweremissions engines. Certification 

emissions credits were generated at an 

unexpectedly high rate, and, because 

the credits did not expire, they could be 

banked for an indefinite period of time. 

In sum, CARB determined that the 

program failed to meet its goal of 

providing incentives to create advanced, 

low-emissions engine technology.40

Similarly, CARB found that its SORE 

regulation, prior to the amendments, did 

not appropriately incentivize the 

creation of professional grade ZEE.41 As 

a result, CARB’s 2008 Amendments 

introduced emissions credit generation 

for ZEE technology. These credits must 

also be used within five years of 

generation, and cannot be used to certify 

engines that exceed the relevant 

emissions standard by more than 40 

percent.42 California requested that 

these amendments be treated as within 


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Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices 26045 

43 Id. at 16. 

44 Id. 

45 Id. at 19. 

46 Id. at 20. 

47 Id. at 11. 

48 Id.; see also 64 FR 15208 (March 30, 1999) and 

73 FR 59034 (October 8, 2008). 

49 2013 Request, supra note 1, at 12. 

50 Id. at 12. 

51 Id. 

52 Id. at 11. 

53 Id. at 12. 

the scope of EPA’s prior authorizations 

of the SORE program. 

California asserted that the 

amendments met all three within-thescope criteria, i.e. that the amendments: 

(1) Do not undermine the original 

protectiveness determination 

underlying California’s SORE 

regulations; (2) do not affect the 

consistency of the SORE regulations 

with section 202(a); and (3) do not raise 

any new issues affecting the prior 

authorizations.43 We received no 

adverse comments or evidence 

suggesting a within-the-scope analysis is 

inappropriate, or that the 2008 

Amendments fail to meet any of the 

three criteria for within-the-scope 

confirmation. 

In regard to the first within-the-scope 

criterion, California asserts that the 

amendment establishing a five-year 

restriction on certification emissions 

credits did not undermine the original 

protectiveness determination 

underlying California’s SORE 

regulations because it does not modify 

the emissions standards applicable to 

engines, but rather only the credit 

program which is ancillary to these 

standards.44 Limiting the lifespan of 

certification emissions credits reduces 

the ability of manufacturers to use 

banked credits from one engine family 

to certify another, dirtier engine family. 

EPA finds that because California’s pre2008 certification emissions credit 

program was at least as protective as the 

applicable federal standards, so too is 

the less generous certification emissions 

credit policy, as established by the 2008 

Amendments. 

EPA also finds that permitting the 

creation of emissions credits through 

ZEE technology, particularly given the 

five year credit expiration and 

limitation on the purposes for which the 

credits can be used, will promote 

advanced technology. We cannot 

therefore find that limiting the lifespan 

of certification emissions credits and 

extending emissions credits to ZEE 

products undermines the protectiveness 

determination that EPA found in its 

previous SORE authorizations not to be 

arbitrary and capricious. 

In regard to the second within-thescope criterion, this amendment did not 

attempt to regulate new motor vehicles 

or motor vehicles engines and so is 

consistent with section 209(a). It 

likewise did not attempt to regulate any 

of the permanently preempted engines 

or vehicles, and so is consistent with 

section 209(e)(1). Finally, it did not 

cause any technological feasibility 

issues for manufacturers or cause 

inconsistency between state and federal 

test procedures, per section 209(b)(1)(C). 

Most manufacturers have been able to 

meet the requirements of CARB’s SORE 

amendments using widely available 

technologies, and no evidence has been 

offered that any manufacturer would 

experience significant compliance 

issues because the credits will be 

limited to five years.45 The amendment 

allowing manufacturers to generate 

emissions credits through ZEE 

technology will provide additional 

compliance options, thus posing no 

barrier to compliance. 

In regard to the third within-the-scope 

criterion, California stated that no new 

issues exist, and EPA has received no 

evidence to the contrary.46 Limiting the 

lifespan of certification emissions 

credits and permitting the creation of 

credits through ZEE technology does not 

modify emissions requirements, but 

instead makes changes to the alternate 

means used for compliance. We 

therefore do not find any new issues 

raised by the amendments limiting the 

lifespan of certification emissions 

credits and permitting the creation of 

emissions credits through ZEE 

technology. 

Having received no contrary evidence 

regarding these amendments, we find 

that California has met the three criteria 

for a within-the-scope authorization 

approval, and the modification of 

certification emission credits and 

creation of ZEE certification emissions 

credits amendments are confirmed as 

within the scope of previous EPA 

authorizations of California’s SORE 

regulations. 

2. Modification of Production Emissions 

Credits 

Another California 2008 SORE 

amendment eliminated production 

emissions credits. These credits were 

generated when a manufacturer 

produced an engine whose production 

line test result was below the applicable 

engine family emission limit. Through 

these credits, CARB intended to permit 

manufacturers to ‘‘certify engine 

families as well as to offset production 

line testing exceedances of another 

engine family.’’ 47 CARB states that 

production emissions credits were 

implemented in anticipation of EPA’s 

adoption of a similar program.48 EPA 

ultimately decided not to implement 

production emissions credits. Thus 

elimination of this program through the 

2008 Amendments will more closely 

harmonize California’s regulations with 

federal standards. 

The production emissions credit 

program permitted manufacturers to 

convert production emissions credits 

into certification emissions credits. 

CARB found that some manufacturers 

accumulated a large amount of 

production emissions credits and 

converted them into certification 

emissions credits.49 This unexpectedly 

resulted in the continued production of 

engines that did not comply with 

otherwise applicable emissions 

standards.50 CARB’s 2008 Amendments 

eliminated the production emissions 

credits program, but permitted 

manufacturers one year to use their 

production credits or convert them to 

certification emissions credits.51 EPA 

received no adverse comments or 

evidence contradicting California’s 

request to consider this amendment as 

within the scope of previous 

authorizations. 

In regard to the first within-the-scope 

criterion, California found that the 

elimination of production emissions 

credits did not undermine the original 

protectiveness determination regarding 

its SORE regulations because it 

increases harmony with the federal 

system.52 Based on the evidence before 

the Agency and in the absence of any 

evidence to the contrary, we cannot find 

that California’s protectiveness 

determination regarding the elimination 

of production emissions credits is 

arbitrary or capricious. 

In regard to the second within-thescope criterion, this amendment did not 

attempt to regulate new motor vehicles 

or motor vehicles engines, and thus is 

consistent with section 209(a). It 

similarly did not attempt to regulate any 

of the permanently preempted engines 

or vehicles, and so is consistent with 

section 209(e)(1). It did not cause any 

technological feasibility issues for 

manufacturers or cause inconsistency 

between state and federal test 

procedures, per section 209(b)(1)(C). 

CARB stated that no manufacturer has 

relied upon production emissions 

credits to comply with applicable 

emissions standards since 2008.53 As no 

contrary evidence has been offered, we 

do not find the amendment is 

inconsistent with section 209 of the Act. 

In regard to the third within-the-scope 

criterion, CARB stated that it was not 


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26046 Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices 

54 Id. at 13. 

55 Id. 

56 Id. at 17–18. 57 Id. at 20. 

aware of any new issues presented by 

the elimination of production emissions 

credits, and we have received no 

evidence to the contrary. We therefore 

do not find any new issues raised by the 

elimination of production emissions 

credits. 

Having received no contrary evidence 

regarding this amendment, we find that 

California has met the three criteria for 

a within-the-scope authorization 

approval, and the modification of 

production emissions credits 

amendment is confirmed as within the 

scope of previous authorizations of 

California’s SORE regulations. 

3. Ethanol Blend Certification Fuel 

Option 

Finally, one of the 2008 Amendments 

granted manufacturers the option to 

‘‘use a certification fuel with up to ten 

percent ethanol content when that same 

fuel is used for certification with the 

EPA.’’ 54 EPA received no adverse 

comments or evidence contradicting 

California’s request to consider this 

amendment as within the scope of 

previous authorizations. 

In regard to the first within-the-scope 

criterion, CARB stated that this 

amendment would increase 

‘‘harmonization of California’s SORE 

certification procedures with EPA’s 

nonroad engine certification procedures, 

and could reduce the testing cost for 

some manufacturers.’’ 55 Based on the 

record before us and in the absence of 

any evidence to the contrary, we cannot 

find that California’s protectiveness 

determination regarding the 

implementation of an ethanol blend 

certification fuel option is arbitrary or 

capricious. 

In regard to the second within-thescope criterion, California found that 

the amendment does not affect 

consistency with section 209 of the 

Act.56 This amendment does not 

regulate emissions from new motor 

vehicles or new motor vehicle engines, 

and thus is not inconsistent with 209(a). 

Similarly, it did not attempt to regulate 

any of the permanently preempted 

engines or vehicles, and so is consistent 

with section 209(e)(1). This amendment 

expands rather than limits the means by 

which manufacturers can certify fuels, 

and thus poses no lead-time or 

technological feasibility problems. We 

therefore find no evidence that this 

amendment is inconsistent with section 

209 of the Act. 

In regard to the third within-the-scope 

criterion, California stated that the 

ethanol blend certification fuel option 

raised no new issues.57 EPA similarly 

finds no new issues arising from the 

amendment. 

Having received no contrary evidence 

regarding this amendment, we find that 

California has met the three criteria for 

a within-the-scope authorization 

approval, and the ethanol blend 

certification fuel option amendment is 

confirmed as within the scope of 

previous authorizations of California’s 

SORE regulations. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating the 2008 Amendments 

to CARB’s SORE regulations described 

above and CARB’s submissions for EPA 

review, EPA is taking the following 

actions. 

First, EPA confirms that California’s 

amendment modifying certification 

emissions credits and permitting 

emissions credit generation for ZEE is 

within the scope of prior authorizations. 

Second, EPA confirms that California’s 

amendment eliminating production 

credit generation is within the scope of 

prior authorizations. Third, EPA 

confirms that California’s amendment 

permitting certification with fuels with 

up to ten percent ethanol content 

provided that the same fuel is used for 

certification with EPA is within the 

scope of prior authorizations. 

This decision will affect persons in 

California and those manufacturers and/ 

or owners/operators nationwide who 

must comply with California’s 

requirements. In addition, because other 

states may adopt California’s standards 

for which a section 209(e)(2)(A) 

authorization has been granted if certain 

criteria are met, this decision would 

also affect those states and those 

persons in such states. See CAA section 

209(e)(2)(B). For these reasons, EPA 

determines and finds that this is a final 

action of national applicability, and also 

a final action of nationwide scope or 

effect for purposes of section 307(b)(1) 

of the Act. Pursuant to section 307(b)(1) 

of the Act, judicial review of this final 

action may be sought only in the United 

States Court of Appeals for the District 

of Columbia Circuit. Petitions for review 

must be filed by 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. 2015–10610 Filed 5–5–15; 8:45 am] 

BILLING CODE P 

FEDERAL COMMUNICATIONS 

COMMISSION 

[OMB 3060–0723] 

Information Collection Being Reviewed 

by the Federal Communications 

Commission Under Delegated 

Authority 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice and request for 

comments. 

SUMMARY: As part of its continuing effort 

to reduce paperwork burdens, and as 

required by the Paperwork Reduction 

Act (PRA) of 1995 (44 U.S.C. 3501– 

3520), the Federal Communications 

Commission (FCC or Commission) 

invites the general public and other 

Federal agencies to take this 

opportunity to comment on the 

following information collections. 

Comments are requested concerning: 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

the accuracy of the Commission’s 

burden estimate; ways to enhance the 

quality, utility, and clarity of the 

information collected; ways to minimize 

the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 


tkelley on DSK3SPTVN1PROD with NOTICES