Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Notices 26249 

1The federal term ‘‘nonroad’’ and the California 

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

2 77 FR 9916 (February 21, 2012). 

3CARB ‘‘Resolution 11–30,’’ September 22, 2011; 

CARB ‘‘Executive Order R–12–009,’’ August 2, 

2012. 

the Commission’s Web site at http://

www.ferc.gov using the ‘‘eLibrary’’ link. 

Enter the docket number excluding the 

last three digits in the docket number 

field to access the document. For 

assistance, please contact FERC Online 

Support at FERCOnlineSupport@

ferc.gov, (866) 208–3676 (toll free), or 

(202) 502–8659 (TTY). A copy is also 

available for inspection and 

reproduction at the address in item (h) 

above. 

m. You may also register online at 

http://www.ferc.gov/docs-filing/

esubscription.asp to be notified via 

email of new filings and issuances 

related to this or other pending projects. 

For assistance, contact FERC Online 

Support. 

n. Procedural Schedule: The 

application will be processed according 

to the following preliminary Hydro 

Licensing Schedule. Revisions to the 

schedule may be made as appropriate. 

Milestone Target date 

Notice of Acceptance/Notice of Ready for Environmental Analysis .......................................................................................... July 2015 

Filing of recommendations, preliminary terms and conditions, and fishway prescriptions ....................................................... September 2015 

Commission issues Environmental Assessment (EA) ............................................................................................................... December 2015 

Comments on EA, modified terms and conditions .................................................................................................................... January 2016 

o. Final amendments to the 

application must be filed with the 

Commission no later than 30 days from 

the issuance date of the notice of ready 

for environmental analysis. 

Dated: May 1, 2015. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2015–10975 Filed 5–6–15; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2014–0060; FRL–9927–30– 

OAR] 

California State Nonroad Engine 

Pollution Control Standards; Mobile 

Cargo Handling Equipment at Ports 

and Intermodal Rail Yards 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’s 

(‘‘CARB’’) request for authorization of 

amendments to its mobile cargo 

handling equipment at ports and 

intermodal rail yards regulations (‘‘CHE 

amendments’’). EPA is also confirming 

that certain CHE amendments are 

within the scope of prior EPA 

authorizations. CARB’s mobile cargo 

handling equipment at ports and 

intermodal rail yard regulations apply to 

all newly purchased, leased or rented 

on- and off-road vehicles and 

equipment, as well as in-use on- and offroad vehicles and equipment, with 

compression-ignition engines that 

operate at ports and intermodal rail 

yards. 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–2014–0060. 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–2014–0060 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. Although a 

part of the official docket, the public 

docket does not include Confidential 

Business Information (‘‘CBI’’) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

Air Quality (‘‘OTAQ’’) maintains a Web 

page that contains general information 

on its review of California waiver and 

authorization requests. Included on that 

page are links to prior waiver Federal 

Register notices, some of which are 

cited in today’s notice; the page can be 

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

cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

David Dickinson, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460. Telephone: (202) 343–9256. 

Fax: (202) 343–2804. Email: 

dickinson.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

CARB first adopted its CHE regulation 

on December 31, 2006. The regulation 

applied to newly purchased, leased, or 

rented on- and off-road vehicles and 

equipment, as well as to in-use on- and 

off-road vehicles and equipment with 

compression-ignition (CI) engines that 

operate at ports and intermodal rail 

yards.1 On February 21, 2012, EPA 

granted California a full waiver for those 

parts of the CHE regulation establishing 

emission standards for new on-road 

motor vehicles and full authorization for 

standards and other requirements 

related to the control of emissions 

affecting new and in-use nonroad 

engines.2 CARB formally adopted the 

CHE amendments on October 14, 2012,3

and they are codified at title 13, 

California Code of Regulations (CCR), 

section 2479. The CHE amendments 

modify certain retrofit, operational, and 

compliance requirements; strengthen 

certain emission standards; and address 

definitions and provide other clarifying 

language. By letter dated May 16, 2013, 

CARB submitted a request to EPA 

pursuant to section 209(e) of the Act, 

seeking EPA’s confirmation that certain 

CHE amendments fall within the scope 

of EPA’s February 2012 authorization 

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26250 Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Notices 

4States 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. 

5See ‘‘Air Pollution Control; Preemption of State 

Regulation for Nonroad Engine and Vehicle 

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

6See ‘‘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. 

7See supra note 12. EPA has interpreted 

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

vehicle waivers. 

8See 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.’’ 

9See supra note 12, at 36983. 

10 ‘‘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. 

11See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

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

and a full authorization for other CHE 

amendments. Those CHE amendments 

for which CARB sought within-thescope confirmation are related to 

compliance flexibility and reduced 

compliance costs and include: 

Modification to retrofit requirements 

and operational practices; 

demonstration of emissions equivalency 

for alternative technology; and 

modification of certain compliance 

requirements. CARB sought a full 

authorization for the CHE amendments 

related to new, more stringent 

requirements and include: A new 

opacity based monitoring program for 

in-use nonroad vehicles and equipment; 

and, a new retrofit requirement for 

engines meeting the Tier 4 Family 

Emissions Limit standards. 

A. Clean Air Act Nonroad Engine and 

Vehicle Authorizations 

Section 209(e)(1) of the Act 

permanently preempts any state, or 

political subdivision thereof, from 

adopting or attempting to enforce any 

standard or other requirement relating 

to the control of emissions for certain 

new nonroad engines or vehicles.4 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.5 EPA revised these 

regulations in 1997.6 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.7

In order to be consistent with section 

209(a), California’s nonroad standards 

and enforcement procedures must not 

apply to new motor vehicles or new 

motor vehicle engines. To be consistent 

with section 209(e)(1), California’s 

nonroad standards and enforcement 

procedures must not attempt to regulate 

engine categories that are permanently 

preempted from state regulation. To 

determine consistency with section 

209(b)(1)(C), EPA typically reviews 

nonroad authorization requests under 

the same ‘‘consistency’’ criteria that are 

applied to motor vehicle waiver 

requests under section 209(b)(1)(C). 

That provision provides that the 

Administrator shall not grant California 

a motor vehicle waiver if she finds that 

California ‘‘standards and 

accompanying enforcement procedures 

are not consistent with section 202(a)’’ 

of the Act. Previous decisions granting 

waivers and authorizations have noted 

that state standards and enforcement 

procedures will be found to be 

inconsistent with section 202(a) if (1) 

there is inadequate lead time to permit 

the development of the necessary 

technology, giving appropriate 

consideration to the cost of compliance 

within that time, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

In light of the similar language of 

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

has reviewed California’s requests for 

authorization of nonroad vehicle or 

engine standards under section 

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

that it has historically applied in 

reviewing requests for waivers of 

preemption for new motor vehicle or 

new motor vehicle engine standards 

under section 209(b).8 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),9 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.10

This principle of narrow EPA review 

has been upheld by the U.S. Court of 

Appeals for the District of Columbia 

Circuit.11 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). 

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 

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Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Notices 26251 

12See ‘‘California State Motor Vehicle Pollution 

Control Standards; Amendments Within the Scope 

of Previous Waiver of Federal Preemption,’’ 46 FR 

36742 (July 15, 1981). 

13 40 FR 23102, 23103–23104 (May 28, 1975). 

14 Id. at 23104; 58 FR 4166 (January 13, 1993). 

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

294, 95th Cong., 1st Sess. 301–302 (1977)). 

16 Id. 

17 MEMA I, supra note 19, at 1121. 

18 Id. at 1126. 

19 Id. at 1126. 

20 Id. at 1122. 

21 Id. 22 Id. 23 Id. 24See, e.g., ‘‘California State Motor Vehicle 

Pollution Control Standards; Waiver of Federal 

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

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.12

B. 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.13

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.14 This 

interpretation is supported by relevant 

discussion in the House Committee 

Report for the 1977 amendments to the 

Clean Air Act.15 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.16

C. 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.17

The Administrator’s burden, on the 

other hand, is to make a reasonable 

evaluation of the information in the 

record in coming to the waiver decision. 

As the court in MEMA I stated: ‘‘here, 

too, if the Administrator ignores 

evidence demonstrating that the waiver 

should not be granted, or if he seeks to 

overcome that evidence with 

unsupported assumptions of his own, 

he runs the risk of having his waiver 

decision set aside as ‘arbitrary and 

capricious.’ ’’ 18 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 19

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.20

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.’’ 21

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.22 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.23

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.’’ 24

D. EPA’s Administrative Process in 

Consideration of California’s CHE 

Amendment Request for Authorization 

On May 28, 2014, EPA published a 

Federal Register notice announcing its 

receipt of California’s authorization 

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25See ‘‘California State Nonroad Engine Pollution 

Control Standards; Mobile Cargo Handling 

Equipment at Ports and Intermodal Rail Yards 

Regulation; Request for Within-the-Scope and Full 

Authorization; Opportunity for Public Hearing and 

Comment,’’ 79 FR 30608 (May 28, 2014). 

26See EPA–HQ–OAR–2014–0060–0019. 

27The exemption applies if the average annual 

throughput of goods through a port is less than one 

million tons and the port is located more than 75 

miles from an urban area. 28 Id. at 16. 29See CARB Board Resolution 11–30 (enclosure 

4 of CARB’s authorization request). 

30See CARB Staff Report (enclosure 2 of CARB’s 

authorization request). 

request. In that notice, EPA invited 

public comment on each of the CHE 

amendments and an opportunity to 

request a public hearing.25

First, EPA requested comment on the 

CHE amendments, as follows: (1) 

Should California’s CHE amendments 

be considered under the within-thescope analysis, or should they be 

considered under the full authorization 

criteria?; (2) If those amendments 

should be considered as a within-thescope request, do they meet the criteria 

for EPA to grant a within-the-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 full authorization? 

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: Mobile 

Cargo Handling Equipment at Ports and 

Intermodal Rail Yards Regulations.’’ 26

EPA is not promulgating any regulations 

or rules regarding California’s CHE 

regulations, but rather is adjudicating 

whether or not the amendments that 

CARB made to its own CHE 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 

The CHE amendment package 

contains six categories of amendments. 

CARB seeks within-the-scope 

confirmation for the following 

amendments: (1) Modification to retrofit 

requirements; (2) modification of 

operation practices; (3) allowance of 

demonstration of emissions equivalency 

for alternative technology; and (4) 

modification of compliance 

requirements. CARB seeks a full 

authorization to enforce amendments 

that establish: (1) A new opacity based 

monitoring program; and (2) new retrofit 

requirements for engines meeting the 

Tier 4 Family Emission Limits 

standards. 

A. Within-the-Scope Discussion 

California maintains that many of the 

CHE amendments were enacted to 

address a variety of implementation 

issues associated with the initial CHE 

regulations. CARB asserts that the 

amendments provide additional 

compliance flexibilities without 

sacrificing significant emission 

reductions. 

CARB’s amendments to the retrofit 

requirements allow additional time for 

fleet owners/operators (fleets) to retrofit 

equipment for which no verified diesel 

emission control strategies (VDECS) are 

available. The retrofit amendments also 

add safety as a criterion for assessing 

VDECS availability, allow additional 

time to request a compliance date 

extension, and allow an extension of the 

time for the use of experimental diesel 

particulate matter emissions control 

strategies for the purpose of gathering 

verification data on such strategies. 

According to CARB, the amendments 

that modify the operational practice 

requirements involve four minor 

adjustments to the CHE regulations. 

These include a low-use compliance 

extension (a two-year extension for 

equipment that operates less than 200 

hours per year), an allowance for cargo 

handling equipment other than yard 

trucks (‘‘non-truck CHE’’), owned or 

leased by one party to be transferred to 

another location under certain 

limitations, an allowance for fleets to 

replace engines still under the original 

equipment manufacturer’s warranty 

with replacement engines that meet the 

emission standards of the original 

engine, even when newer engine 

emission standards are in place for 

newly produced engines, and a new 

provision allowing fleets to rent noncompliant equipment in the event that 

compliant equipment is unavailable due 

to manufacturer delivery delays. 

The third set of amendments that 

CARB maintains are within the scope of 

the prior authorization establishes a 

compliance option that allows fleets to 

demonstrate emissions equivalency for 

alternative technology. CARB states that 

these amendments are designed to 

encourage introduction of new 

technologies such as hybrid and electric 

equipment. 

Finally, the fourth set of amendments 

modifies compliance requirements by 

establishing a compliance schedule that 

allows fleets to bring older engines into 

compliance first if owners and operators 

choose to do so, and by exempting 

equipment at rural low-throughput 

ports.27

CARB maintains that the amendments 

noted above meet all three within-thescope criteria, i.e. that the amendments: 

(1) Do not undermine the original 

protectiveness determination 

underlying California’s CHE regulations; 

(2) do not affect the consistency of the 

CHE regulations with section 209, and 

(3) do not raise any new issues affecting 

the prior authorizations.28 We received 

no adverse comments or evidence 

suggesting a within-the-scope analysis is 

inappropriate, or that these CHE 

amendments fail to meet any of the 

three criteria for within-the-scope 

confirmation. 

With regard to the first within-thescope prong, CARB maintains that the 

stringency of its emission standards is, 

in the aggregate, at least as protective of 

public health and welfare as applicable 

federal standards.29 CARB also notes 

that its amendments will not create any 

expected adverse environmental 

impacts.30 Finally, CARB notes that 

there can be no question that the CHE 

regulations are at least as protective of 

public health and welfare as applicable 

federal standards given that EPA is 

unable to regulate emissions from in-use 

nonroad engines and equipment and 

that no federally applicable regulations 

exist. EPA agrees that there are no 

federally applicable standards for in-use 

nonroad engines and that no evidence 

exists in the record to demonstrate that 

CARB’s CHE regulations, in the 

aggregate, are less protective than 

applicable federal standards. Therefore, 

we cannot find that the CHE 

amendments, as noted, undermine the 

protectiveness determination made with 

regard to the original CHE authorization. 

With regard to the second within-thescope prong (consistency with section 

209), CARB maintains that the CHE 

amendments do not regulate new motor 

vehicles or motor vehicles engines and 

so are consistent with section 209(a). 

Likewise the CHE amendments do not 

regulate any of the permanently 

preempted categories of engines or 

vehicles, and so are consistent with 

section 209(e)(1). Finally, CARB 

maintains that the CHE amendments do 

not cause any technological feasibility 

issues or cause inconsistency between 

state and federal test procedures, per 

section 209(b)(1)(C). CARB maintains 

that the CHE amendments, as noted, 

provide additional compliance 

flexibilities beyond the CHE regulations 

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Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Notices 26253 

31CARB authorization support document at 14, 

docket entry EPA–HQ–OAR–2014–0060–0003. 

32See CARB Board Resolution 11–30 (enclosure 

4 of CARB’s authorization request). 33See CARB Staff Report (enclosure 2 of CARB’s 

authorization request). 34See 74 FR 32744, 32761 (July 8, 2009); 49 FR 

18887, 18889–18890 (May 3, 1984). 

35See CARB’s Authorization Support document 

at 15, citing CARB Board Resolution 11–30. 

36See 59 FR 36969 (July 20, 1994). 

already found to be technologically 

feasible. Because there is no evidence in 

the record to indicate that CARB’s CHE 

amendments are inconsistent with 

section 209 we cannot find that the CHE 

amendments, as noted, are inconsistent 

with section 209. 

Third, California states that no new 

issues exist, and EPA has received no 

evidence to the contrary.31 We therefore 

do not find any new issues raised by the 

CHE amendments as noted. 

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 these amendments are 

thus confirmed as within the scope of 

previous EPA authorizations of 

California’s CHE regulations. 

B. Full Authorization Discussion 

As noted above, CARB seeks a full 

authorization to enforce amendments 

that establish a new opacity based 

monitoring program and new retrofit 

requirements for engines meeting the 

Tier 4 Family Emission Limits 

standards. 

CARB’s CHE amendments establish 

new in-use opacity standards and 

require owners/operators to conduct 

annual opacity monitoring of all CHE 

more than four years old from the date 

of its original manufacture to ensure 

proper operation and maintenance so 

that engines continue to perform as 

designed and certified. Retrofitted 

engines are similarly monitored to 

ensure that the engines continue to be 

in compliance with the VDECS 

executive order issued by CARB. 

Equipment found to be in excess of 

opacity standards would be required to 

receive maintenance and repair before 

being returned to service. 

Under the CHE regulation that EPA 

previously authorized, engine 

manufacturers are allowed some 

flexibility during periods in which 

emission standards are transitioning 

from one emission level (tier) to another 

emission level (tier). This flexibility 

allows engine manufacturers to certify a 

certain percentage of engines 

manufactured, and identified as being 

part of the more stringent tier, to 

emission levels that do not meet that 

more stringent tier. CARB established a 

family emission limit (FEL) alternate 

particulate matter (PM) emission 

standard (Tier 4 Alternate PM standard) 

that is essentially equivalent to the less 

stringent Tier 3 PM emission standard. 

The Tier 4 Alternate PM standard is 

about ten times higher than the 

otherwise applicable Tier 4 PM 

standard. Through inadvertent error by 

CARB, the CHE regulations allowed for 

in-use nonroad non-truck CHE to meet 

the applicable upgrade requirements by 

meeting the Tier 4 Alternate PM 

standard rather than the Tier 4 PM 

standard. CARB’s CHE amendments 

correct this error by requiring fleets that 

used the FEL-certified engines to retrofit 

these engines with the highest available 

(best—Tier 4) VDECS within one year. 

With regard to the first full 

authorization prong at section 

209(e)(2)(i) of the Act, CARB maintains 

that the stringency of its emission 

standards is, in the aggregate, at least as 

protective of public health and welfare 

as applicable federal standards.32 CARB 

also notes that its amendments will not 

create any expected adverse 

environmental impacts.33 Finally, CARB 

notes that there can be no question that 

its CHE regulation is at least as 

protective of public health and welfare 

as applicable federal standards given 

that EPA is unable to regulate emissions 

from in-use nonroad engines and 

equipment and that no federally 

applicable regulations exist. EPA agrees 

that there are no federally applicable 

standards for in-use nonroad engines 

and that no evidence exists in the record 

to demonstrate that CARB’s CHE 

regulation is less protective, in the 

aggregate, than applicable federal 

standards. Accordingly, we cannot find 

that CARB’s protectiveness finding is 

arbitrary and capricious. 

With regard to the second 

authorization criterion, section 

209(e)(2)(A)(ii) instructs that EPA 

cannot grant an authorization if the 

Agency finds that California ‘‘does not 

need such California standards to meet 

compelling and extraordinary 

conditions.’’ EPA’s inquiry under this 

second criterion (found both in 

paragraphs 209(b)(1)(B) and 

209(e)(2)(A)(ii)) has been to determine 

whether California needs its own mobile 

source pollution program (i.e. set of 

standards) for the relevant class or 

category of vehicles or engines to meet 

compelling and extraordinary 

conditions, and not whether the specific 

standards that are the subject of the 

authorization or waiver request are 

necessary to meet such conditions.34

CARB notes that in adopting its CHE 

amendments the CARB Board confirmed 

its longstanding position that California 

continues to need its own nonroad 

engine emission program to meet 

serious air pollution problems.35 Based 

on the lack of evidence in the record or 

any suggestion that CARB no longer has 

a need for its standards to meet 

compelling and extraordinary 

conditions, we have no reason to deny 

CARB’s authorization request based on 

this second authorization criterion. 

Section 209(e)(2)(A)(iii) of the Act 

instructs that EPA cannot grant an 

authorization if California’s standards 

and enforcement procedures are not 

consistent with ‘‘this section.’’ As 

described above, EPA’s section 209(e) 

rule states that the Administrator shall 

not grant authorization to California if 

she finds (among other tests) that the 

‘‘California standards and 

accompanying enforcement procedures 

are not consistent with section 209.’’ 

EPA has interpreted the requirement to 

mean that California standards and 

accompanying enforcement procedures 

must be consistent with at least section 

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

209(b)(1)(C), as EPA has interpreted this 

last subsection in the context of motor 

vehicle waivers.36 Thus, this can be 

viewed as a three-pronged test. 

1. Consistency With Section 209(a) 

Section 209(a) of the Clean Air Act 

prohibits states or any political 

subdivisions of states from setting 

emission standards for new motor 

vehicles or new motor vehicle engines. 

Section 209(a) is modified in turn by 

section 209(b) which allows California 

to set such standards if other statutory 

requirements are met. To find a 

standard to be inconsistent with section 

209(a) for purposes of section 

209(e)(2)(A)(iii), EPA must find that the 

standard in question actually regulates 

new motor vehicles or new motor 

vehicle engines. In its authorization 

request, CARB stated that by definition, 

the CHE amendments do not regulate 

new motor vehicles or new motor 

vehicle engines. EPA received no 

comments to suggest the contrary. 

Therefore, EPA cannot deny California’s 

request based on the CHE amendments 

being inconsistent with section 209(a) of 

the Act. 

2. Consistency With Section 209(e)(1) 

To be consistent with section 

209(e)(1), California’s standards or other 

requirements relating to the control of 

emissions must not relate to new 

engines which are used in farm or 

construction equipment or vehicles and 

which are smaller than 175 horsepower 

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26254 Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Notices 

37See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

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

(hp), and new locomotives or new 

engines used in locomotives. 

CARB maintains that its CHE 

amendments do not regulate new 

engines which are used in construction 

or farm equipment or vehicles below 

175 hp, nor do the CHE amendments 

regulate new locomotives or new 

engines used in locomotives. 

In light of the lack of contrary 

information in the record, EPA cannot 

make a finding that CARB’s CHE 

amendments are inconsistent with 

section 209(e)(1). Therefore, EPA cannot 

deny CARB’s authorization request on 

this basis. 

3. Consistency With Section 209(b)(1)(C) 

The requirement that California’s 

standards be consistent with section 

209(b)(1)(C) of the Clean Air Act 

effectively requires consistency with 

section 202(a) of the Act. To determine 

this consistency, EPA has applied to 

California nonroad standards the same 

test it has used previously for California 

motor vehicle standards; namely, state 

standards are inconsistent with section 

202(a) of the Act if there is inadequate 

lead-time to permit the development of 

technology necessary to meet those 

requirements, giving appropriate 

consideration to the cost of compliance 

within that timeframe. California’s 

accompanying enforcement procedures 

would also be inconsistent with section 

202(a) if federal and California test 

procedures conflicted. The scope of 

EPA’s review of whether California’s 

action is consistent with section 202(a) 

is narrow. The determination is limited 

to whether those opposed to the 

authorization or waiver have met their 

burden of establishing that California’s 

standards are technologically infeasible, 

or that California’s test procedures 

impose requirements inconsistent with 

the federal test procedures.37

CARB states that the smoke opacity 

test is a quick and inexpensive way to 

detect if an engine is emitting excessive 

emissions. CARB maintains that the 

smoke opacity test is technologically 

feasible and that compliance with the 

standards does not require the 

incorporation of any new technology 

not already required by existing 

regulations that have previously 

received an EPA authorization. CARB 

also states that the clarification of the 

Tier 4 FEL emission standards 

provisions are technologically feasible 

and were designed to correct an 

unintentional error and to clarify the 

original intent of the previously 

authorized CHE regulations. The CHE 

amendments only require retrofit to the 

Tier 4 emission level if appropriate 

technology is available and require the 

retrofit be performed within one year. 

EPA did not receive any comment or 

evidence to suggest that either of the 

two amendments for which CARB 

requested authorization is 

technologically infeasible. 

Consequently, based on the record, 

EPA is unable to make the finding that 

the CHE amendments are not 

technologically feasible with the 

available lead time giving consideration 

to the cost of compliance. 

EPA received no comments suggesting 

that CARB’s CHE amendments pose any 

test procedure consistency problem. 

Therefore, based on the record, EPA 

cannot find that CARB’s testing 

procedures are inconsistent with section 

202(a) and cannot deny CARB’s request 

based on this criterion. 

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 CHE regulations described above and 

CARB’s submissions for EPA review, 

EPA is taking the following actions. 

First, EPA is granting a within-thescope authorization for the CHE 

amendments that modify the retrofit 

requirements, modify operational 

practices, allow demonstration of 

emissions equivalency for alternative 

technology, and modify compliance 

requirements. 

Second, EPA is granting a full 

authorization for the CHE amendments 

that establish a new opacity based 

monitoring program and new retrofit 

requirements for engines meeting the 

Tier 4 FEL standards. 

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. 2015–11034 Filed 5–6–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL_XXXX–X] 

Cross-Media Electronic Reporting: 

Authorized Program Revision 

Approval, State of Florida 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: This notice announces EPA’s 

approval of the State of Florida’s request 

to revise/modify certain of its EPAauthorized programs to allow electronic 

reporting. 

DATES: EPA’s approval is effective May 

7, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Karen Seeh, U.S. Environmental 

Protection Agency, Office of 

Environmental Information, Mail Stop 

2823T, 1200 Pennsylvania Avenue NW., 

Washington, DC 20460, (202) 566–1175, 

seeh.karen@epa.gov. 

SUPPLEMENTARY INFORMATION: On 

October 13, 2005, the final Cross-Media 

Electronic Reporting Rule (CROMERR) 

was published in the Federal Register 

(70 FR 59848) and codified as part 3 of 

title 40 of the CFR. CROMERR 

establishes electronic reporting as an 

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