Federal Register / Vol. 80, No. 238 / Friday, December 11, 2015 / Notices 76971 

two copies of their comments to the 

Secretary of the Commission. 

Environmental commentors will be 

placed on the Commission’s 

environmental mailing list, will receive 

copies of the environmental documents, 

and will be notified of meetings 

associated with the Commission’s 

environmental review process. 

Environmental commentors will not be 

required to serve copies of filed 

documents on all other parties. 

However, the non-party commentors 

will not receive copies of all documents 

filed by other parties or issued by the 

Commission (except for the mailing of 

environmental documents issued by the 

Commission) and will not have the right 

to seek court review of the 

Commission’s final order. 

The Commission strongly encourages 

electronic filings of comments, protests 

and interventions in lieu of paper using 

the ‘‘eFiling’’ link at http://

www.ferc.gov. Persons unable to file 

electronically should submit an original 

and 7 copies of the protest or 

intervention to the Federal Energy 

Regulatory Commission, 888 First Street 

NE., Washington, DC 20426. 

Comment Date: 5:00 p.m. Eastern 

Time on December 28, 2015. 

Dated: December 7, 2015. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2015–31214 Filed 12–10–15; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

Combined Notice of Filings #1 

Take notice that the Commission 

received the following electric corporate 

filings: 

Docket Numbers: EC15–210–000. 

Applicants: Dominion Solar Projects 

A, Inc., Dominion Solar Projects I, Inc. 

Description: Second Clarification to 

September 24, 2015 Application for 

Authorization Under Section 203 of the 

Federal Power Act of Dominion Solar 

Projects A, Inc., et al. 

Filed Date: 12/4/15. 

Accession Number: 20151204–5299. 

Comments Due: 5 p.m. ET 12/14/15. 

Docket Numbers: EC16–21–000. 

Applicants: Sandstone Solar LLC. 

Description: Clarification to October 

29, 2015 Application for Authorization 

Under Section 203 of the Federal Power 

Act, Request for Expedited 

Consideration and Confidential 

Treatment of Sandstone Solar LLC. 

Filed Date: 12/3/15. 

Accession Number: 20151203–5147. 

Comments Due: 5 p.m. ET 12/14/15. 

Docket Numbers: EC16–46–000. 

Applicants: Bicent (California) 

Malburg LLC. 

Description: Application for 

Authorization for Disposition of 

Jurisdictional Facilities and Request for 

Expedited Action of Bicent (California) 

Malburg LLC. 

Filed Date: 12/4/15. 

Accession Number: 20151204–5293. 

Comments Due: 5 p.m. ET 12/28/15. 

Take notice that the Commission 

received the following electric rate 

filings: 

Docket Numbers: ER16–468–000. 

Applicants: FTS Master Tenant 1, 

LLC. 

Description: Baseline eTariff Filing: 

FTS Master Tenant 1 LLC MBR Tariff to 

be effective 2/1/2016. 

Filed Date: 12/4/15. 

Accession Number: 20151204–5249. 

Comments Due: 5 p.m. ET 12/28/15. 

Docket Numbers: ER16–469–000. 

Applicants: Midcontinent 

Independent System Operator, Inc. 

Description: § 205(d) Rate Filing: 

2015–12–04_Order 1000 CTDS Variance 

Analysis Filing to be effective 2/2/2016. 

Filed Date: 12/4/15. 

Accession Number: 20151204–5257. 

Comments Due: 5 p.m. ET 12/28/15. 

Docket Numbers: ER16–470–000. 

Applicants: Midcontinent 

Independent System Operator, Inc. 

Description: § 205(d) Rate Filing: 

2015–12–04_Order 1000 (TOA) CTDS 

Variance Analysis Filing to be effective 

2/2/2016. 

Filed Date: 12/4/15. 

Accession Number: 20151204–5259. 

Comments Due: 5 p.m. ET 12/28/15. 

Docket Numbers: ER16–471–000. 

Applicants: Midcontinent 

Independent System Operator, Inc. 

Description: Notice of Termination of 

the Generator Interconnection 

Agreement designated as Project No. 

G359 of Midcontinent Independent 

System Operator, Inc. 

Filed Date: 12/4/15. 

Accession Number: 20151204–5286. 

Comments Due: 5 p.m. ET 12/28/15. 

Take notice that the Commission 

received the following open access 

transmission tariff filings: 

Docket Numbers: OA08–14–000. 

Applicants: Midcontinent 

Independent System Operator, Inc. 

Description: Compliance Filing of 

Midcontinent Independent System 

Operator, Inc. 

Filed Date: 12/4/15. 

Accession Number: 20151204–5292. 

Comments Due: 5 p.m. ET 12/28/15. 

The filings are accessible in the 

Commission’s eLibrary system by 

clicking on the links or querying the 

docket number. 

Any person desiring to intervene or 

protest in any of the above proceedings 

must file in accordance with Rules 211 

and 214 of the Commission’s 

Regulations (18 CFR 385.211 and 

§ 385.214) on or before 5:00 p.m. Eastern 

time on the specified comment date. 

Protests may be considered, but 

intervention is necessary to become a 

party to the proceeding. 

eFiling is encouraged. More detailed 

information relating to filing 

requirements, interventions, protests, 

service, and qualifying facilities filings 

can be found at: http://www.ferc.gov/

docs-filing/efiling/filing-req.pdf. For 

other information, call (866) 208–3676 

(toll free). For TTY, call (202) 502–8659. 

Dated: December 7, 2015. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2015–31211 Filed 12–10–15; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2014–0535; FRL 9939–94– 

OAR] 

California State Nonroad Engine 

Pollution Control Standards; Small OffRoad Engines Regulations; Tier 4 OffRoad Compression-Ignition 

Regulations; Exhaust Emission 

Certification Test Fuel for Off-Road 

Spark-Ignition Engines, Equipment, 

and Vehicles Regulations; Notice of 

Decision 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice of Decision. 

SUMMARY: The Environmental Protection 

Agency (EPA) is confirming that the 

California Air Resources Board’s 

(CARB’s) 2011 amendments to its Small 

Off-Road Engines (SORE) regulations 

(2011 SORE amendments), Tier 4 OffRoad Compression-Ignition (CI) 

regulations (2011 Tier 4 amendments), 

and Exhaust Emission Certification Test 

Fuel for Off-Road Spark-Ignition (SI) 

Engines, Equipment, and Vehicles 

regulations (2011 Certification Test Fuel 

amendments) are within the scope of 

previous EPA authorizations. The 2011 

SORE amendments modify California’s 

existing SORE test procedures by 

aligning California procedures to be 

consistent with recent amendments by 

EPA to the federal certification and 

exhaust emission testing requirements. 


jstallworth on DSK7TPTVN1PROD with NOTICES
76972 Federal Register / Vol. 80, No. 238 / Friday, December 11, 2015 / Notices 

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

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

2 60 FR 37440 (July 20, 1995). 

3 65 FR 69763 (November 20, 2000). 

4 Id. at 69767. 

5 71 FR 75536 (December 15, 2006). 

6 80 FR 26041 (May 6, 2015). 

7See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 4. 

8 Id. 

9 60 FR 37440 (July 5, 1995). 

10See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 5. 

11 Id. 

12 75 FR 8056 (February 23, 2010). 

13 Id. 

The 2011 Tier 4 amendments enhance 

the harmonization of CARB’s exhaust 

emission requirements for new off-road 

CI engines with the corresponding 

federal emissions requirements for 

nonroad CI engines. The 2011 

Certification Test Fuel amendments 

modify the certification test fuel 

requirements for off-road spark ignition, 

gasoline-fueled engines to allow the use 

of 10-percent ethanol-blend gasoline 

(E10) as a certification fuel. This 

decision is issued under the authority of 

the Clean Air Act (‘‘CAA’’ or ‘‘Act’’). 

DATES: Petitions for review must be filed 

by February 9, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2014–0535. 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–2014–0535 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 

A. 2011 SORE Amendments 

CARB includes within its SORE 

regulations small off-road engines and 

equipment 1 rated at or below 19 

kilowatts (kW) (25 horsepower (hp)). 

The vast majority of engines covered by 

the SORE regulations are SI engines that 

are used to power a broad range of 

equipment, including lawn mowers, leaf 

blowers, generators, and small 

industrial equipment. Exhaust and 

evaporative emissions from these 

engines are a significant source of 

hydrocarbons and oxides of nitrogen, 

pollutants that contribute to smog 

problems in California. 

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 1995.2 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 

confirmed these three amendment 

packages as within the scope of 

previous authorizations in 2000.3

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. EPA confirmed these 

amendments to be within the scope of 

previous authorizations in 2000.4

In 2004, CARB amended its off-road 

CI regulations to match federal 

standards and exhaust emissions 

standards, and adopted evaporative 

emissions standards for small off-road 

SI engines rated at or below 19 kW. EPA 

granted a full authorization for these 

amendments in 2006.5 CARB adopted 

additional SORE amendments in 2008 

which modified the emission credits 

program to provide manufacturers with 

additional flexibility and permitted the 

use of certification fuels with up to ten 

volume percent ethanol content, 

provided that the same fuel is used for 

certification with the EPA. EPA found 

these amendments to be within the 

scope of previous authorizations in 

2015.6

B. 2011 Tier 4 Amendments 

The second element of CARB’s 

request is amendments to its nonroad 

regulations that include CI engines used 

in tractors, excavators, dozers, scrapers, 

portable generators, transport 

refrigeration units, irrigation pumps, 

welders, compressors, scrubbers, and 

sweepers.7 In 1992, CARB approved a 

regulation to control exhaust emissions 

from heavy-duty off-road CI engines 175 

hp and above.8 EPA granted 

authorization in 1995.9 In 2000 CARB 

harmonized California’s emission 

standards and test procedures to federal 

standards that EPA promulgated in 1998 

for the same nonroad CI engine 

categories (Tier 1 through Tier 3).10 In 

2004–2005 CARB generally harmonized 

California’s Tier 4 standards to the 

federal Tier 4 standards for these same 

off-road CI engines that EPA adopted in 

2004.11 EPA confirmed that the 2000 

amendments to the smallest category of 

engines (less than 19 kW) were within 

the scope of previous authorizations.12

EPA granted full authorizations for the 

2004–2005 amendments as they affected 

new off-road CI engines less than 19 

kW, and for the 2000 and 2004–2005 

amendments as they affected new offroad CI engines for the other two power 

categories (19 kW–130 kW and greater 

than 130 kW).13

C. 2011 Certification Test Fuel 

Amendments 

The third element of CARB’s request 

is amendments to its Exhaust Emission 

Certification Test Fuel for Off-Road SI 


jstallworth on DSK7TPTVN1PROD with NOTICES
Federal Register / Vol. 80, No. 238 / Friday, December 11, 2015 / Notices 76973 

14Phase 1 CaRFG, which was implemented in 

1992, eliminated lead from gasoline and set 

regulations for deposit control additives and reid 

vapor pressure (RVP). Phase 2 CaRFG (CaRFG2), 

which was implemented in 1996, set specifications 

for sulfur, aromatics, oxygen, benzene, T50, T90, 

Olefins, and RVP and established a Predictive 

Model. Phase 3 CaRFG (CaRFG3), which was 

implemented in 1999, eliminated methyl-tertiarybutyl-ether from California gasoline. 

15See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 9. 

16 Id. at 8. 

17 60 FR 37440 (July 20, 1995). 

18 65 FR 69763 (November 20, 2000). 

19 80 FR 26041 (May 6, 2015). 

20 71 FR 29623 (May 23, 2006). 

21See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 9. 

22 72 FR 14546 (March 28, 2007). 

23 61 FR 69093 (December 31, 1996). 

24 65 FR 69763 (November 20, 2000). 

25See EPA–HQ–OAR–2014–0535–0008, 

‘‘Enclosure 5 CARB Resolution 11–41’’, and EPA– 

HQ–OAR–2014–0535–0009, ‘‘Enclosure 6 Executive 

Order R–12–005’’. 

26 Id. 

27See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’. 

28 Id.at 11. 

29 Id.at 11. 

30See EPA–HQ–OAR–2014–0535–0008, 

‘‘Enclosure 5 CARB Resolution 11–41’’, and EPA– 

HQ–OAR–2014–0535–0009, ‘‘Enclosure 6 Executive 

Order R–12–005’’. 

31 Id. 

32See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 12. 

33 76 FR 37977 (June 28, 2011). 

34See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 13– 

18. 

Engines, Equipment, and Vehicles 

regulations. Prior to these amendments, 

California’s SORE and Large Spark 

Ignition (LSI) test procedures allowed 

gasoline-fueled, SI engines to be tested 

for compliance with certification 

exhaust standards using either Indolene 

or Phase 2 California Reformulated 

Gasoline (CaRFG2) 14 as an option to 

federally specified test fuels. 

Recreational Marine engines were 

permitted to use CaRFG2, federal 

Indolene, or the fuel specified in Table 

3 of Appendix A to 40 CFR part 91, 

subpart D. Off Highway Recreational 

Vehicles (OHRV) that were categorized 

as off-road motorcycles were required to 

certify using Indolene. OHRVs that were 

categorized as go-karts and specialty 

vehicles were allowed to certify using 

either Indolene or CaRFG2, and OHRVs 

that were categorized as all-terrain 

vehicles (ATVs) were primarily required 

to use Indolene, but under certain 

circumstances were allowed to certify 

using CaRFG2.15

The initial SORE regulation and the 

1993 amendments to the SORE 

regulation allowed manufacturers to 

utilize either Indolene or California 

Phase 1 fuel as test fuel for 

certification.16 EPA granted California a 

full authorization for the initial SORE 

regulation and the 1993 amendments.17

In 1994 CARB amended the SORE 

regulation to provide manufacturers the 

option to certify SORE engines using 

CaRFG2 that was consistent with the 

certification test fuel specified for onroad motor vehicles. EPA confirmed 

that the 1994 amendment was within 

the scope of the previous 

authorizations.18 In 2008, EPA 

confirmed that allowing the use of 10- 

percent ethanol-blend of gasoline (E10) 

as a certification fuel for SORE was 

within the scope of previous 

authorizations.19

The initial LSI regulation specified 

that the certified gasoline test fuels for 

LSI engines were either Indolene or 

CaRFG2. EPA granted California a new 

authorization for the initial LSI 

regulation on May 15, 2006.20

The initial CARB Marine SI Engine 

regulation applicable to 2001 and later 

model year outboard SI marine engines 

and personal watercraft engines 

established test procedures that were 

virtually identical to those in the federal 

SI Marine Engine regulations. In 2002 

CARB adopted regulations establishing 

exhaust emission standards and related 

certification and test procedures for 

2003 and later model year SI inboard 

and sterndrive marine engines that 

specified the same certification test 

fuels as those applicable to outboard 

engines and personal water craft.21 EPA 

granted California an authorization for 

these regulations in 2007.22

EPA granted California a new 

authorization for the initial OHRV 

regulation, which included initial test 

fuel certification requirements, in 

1996,23 and confirmed that 1996 

amendments to the OHRV regulation 

were within the scope of the initial 

authorization in 2000.24

D. California’s Authorization Request 

By letter dated June 13, 2014, CARB 

submitted a request to EPA pursuant to 

section 209(e) of the Act for 

authorization of its 2011 SORE 

amendments, 2011 Tier 4 amendments, 

and 2011 Certification Test Fuel 

amendments (with all three sets of 

amendments collectively known as the 

‘‘2011 Amendments’’). CARB sought 

EPA’s confirmation that the 2011 

Amendments fell within the scope of 

EPA’s previous authorizations, or, in the 

alternate, a full authorization for those 

amendments. 

1. 2011 SORE Amendments 

CARB approved the 2011 SORE 

amendments at issue on December 16, 

2011, and adopted them on October 25, 

2012.25 The 2011 SORE amendments 

became operative on January 10, 2013.26

The 2011 SORE amendments modify 

California’s existing SORE test 

procedures by aligning California 

procedures to be consistent with recent 

amendments by EPA to the federal 

certification and exhaust emission 

testing requirements at 40 CFR parts 

1054 and 1065.27 Part 1054 contains 

certification protocols, production-line 

testing requirements, credit-generation 

allowances, and other related provisions 

applicable to federally certified engines. 

Since CARB had previously 

promulgated California-specific versions 

of these provisions for SORE engines, 

the 2011 SORE amendments adopted 

the language of CFR part 1054, but with 

modifications that substitute 

California’s specific emission standards, 

production-line testing requirements 

and credit-allowances for the 

corresponding federal provisions.28 Part 

1065 specifies the ‘‘state-of-the-art’’ 

testing equipment, systems, and 

processes that must be utilized in 

conducting emissions testing of 

applicable engines. The 2011 SORE 

amendments align California test 

procedures for 2013 and later model 

year engines with the requirements 

specified in Part 1065.29

2. 2011 Tier 4 Amendments 

CARB approved the Tier 4 

amendments at issue on December 16, 

2011, and adopted them on October 25, 

2012.30 The 2011 Tier 4 amendments 

became operative on January 10, 2013.31

The 2011 Tier 4 amendments enhance 

the harmonization of CARB’s exhaust 

emission requirements for new off-road 

CI engines with the corresponding 

federal emissions requirements for 

nonroad CI engines set forth in CFR 

parts 1039, 1065, and 1068.32 EPA most 

recently amended these Parts in 2011.33

The 2011 Tier 4 amendments correct 

clerical errors, standardize measurement 

specifications, calibrations, and 

instrumentation, remove unnecessarily 

burdensome reporting requirements, 

and provide additional compliance 

flexibility options.34 The 2011 Tier 4 

amendments also incorporate EPA’s 

anti-stockpiling provisions, which help 

ensure the realization of projected 

emission benefits, and also establish a 

new interim Tier 4 combined 

hydrocarbon plus oxides of nitrogen 

emission standard that has the potential 


jstallworth on DSK7TPTVN1PROD with NOTICES
76974 Federal Register / Vol. 80, No. 238 / Friday, December 11, 2015 / Notices 

35 Id. at 2. 

36See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 18. 

37States 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. 

38See ‘‘Air Pollution Control; Preemption of State 

Regulation for Nonroad Engine and Vehicle 

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

39See ‘‘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. 

40See supra note 12. EPA has interpreted 

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

vehicle waivers. 

41See 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.’’ 

42See supra note 12, at 36983. 

43 ‘‘Waiver of Application of Clean Air Act to 

California State Standards,’’ 36 FR 17458 (August 

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. 

44See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

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

to provide additional emission 

benefits.35

3. 2011 Certification Test Fuel 

Amendments 

The 2011 Certification Test Fuel 

amendments modify the certification 

test fuel requirements for off-road spark 

ignition, gasoline-fueled engines to 

allow the use of 10-percent ethanolblend of gasoline (E10) as a certification 

fuel. The use of the E10 certification 

fuel is allowed as an option for 

certification exhaust emission testing of 

new gasoline-fueled SORE, LSI, 

Recreational Marine, and OHRV off-road 

categories from the 2013 through 2019 

model years, and is mandatory for 

certification exhaust emission testing of 

these categories beginning with the 2020 

model year.36

E. 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.37 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.38 EPA revised these 

regulations in 1997.39 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.40

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).41 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),42 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.43

This principle of narrow EPA review 

has been upheld by the U.S. Court of 

Appeals for the District of Columbia 

Circuit.44 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). 

F. 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 


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45See ‘‘California State Motor Vehicle Pollution 

Control Standards; Amendments Within the Scope 

of Previous Waiver of Federal Preemption,’’ 46 FR 

36742 (July 15, 1981). 

46 40 FR 23103–23104 (May 28, 1975); see also 

LEV I Decision Document at 64 (58 FR 4166 

(January 13, 1993)). 

47 40 FR 23104; 58 FR 4166. 

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

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

49 MEMA I, supra note 19, at 1121. 

50 Id. at 1126. 

51 Id. at 1126. 

52 Id. at 1122. 

53 Id. 54 Id. 55 Id. 56See, e.g., ‘‘California State Motor Vehicle 

Pollution Control Standards; Waiver of Federal 

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

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.45

G. 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 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.46

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.47

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.48

H. Burden and Standard of Proof 

As the U.S. Court of Appeals for the 

DC Circuit has made clear in MEMA I, 

opponents of a waiver request by 

California bear the burden of showing 

that the statutory criteria for a denial of 

the request have been met: 

[T]he language of the statute and its 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they must comply with the statute, when 

presented to the Administrator are presumed 

to satisfy the waiver requirements and that 

the burden of proving otherwise is on 

whoever attacks them. California must 

present its regulations and findings at the 

hearing and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.49

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.’ ’’ 50 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 51

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.52

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.’’ 53

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.54 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.55

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.’’ 56

I. EPA’s Administrative Process in 

Consideration of California’s 

Amendment Requests for Authorization 

On November 21, 2014, EPA 

published a Federal Register notice 

announcing its receipt of California’s 


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57See ‘‘California State Nonroad Engine Pollution 

Control Standards; Small Off-Road Engines 

Regulations; Tier 4 Off-Road Compression-Ignition 

Regulations; Exhaust Emission Certification Test 

Fuel for Off-Road Spark-Ignition Engines, 

Equipment, and Vehicles Regulations; Request for 

Within-the-Scope and Full Authorization; 

Opportunity for Public Hearing and Comment,’’ 79 

FR 69465 (November 21, 2014). 

58See EPA–HQ–OAR–2014–0535–0003, ‘‘2013– 

13–14 Auth Support Document SORE 2011’’ at 11. 

59 Id. at 11. 

60 Id. 

61 Id. at 12. 

62 Id. 

63 Id. 

64 Id. at 13. 

65 Id. 

66 Id. 

authorization request. In that notice, 

EPA invited public comment on the 

2011 SORE amendments, the 2011 Tier 

4 amendments, and 2011 Certification 

Test Fuel amendments (collectively 

known as the 2011 Amendments) and 

an opportunity to request a public 

hearing.57

EPA requested comment on the 2011 

Amendments, as follows: (1) Should 

California’s 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 no written comments. 

Additionally, EPA received no requests 

for a public hearing. Consequently, EPA 

did not hold a public hearing. 

II. Discussion 

A. California’s 2011 SORE Amendments 

The 2011 SORE amendments 

incorporate provisions of 40 Code of 

Federal Regulations (CFR) Parts 1054 

and 1065 into the test procedures 

applicable to 2013 and later model year 

engines, and incorporate citations to the 

newly modified test procedures. The 

2011 SORE amendments dealt with 

three specific topics: (1) Improved 

alignment with 40 CFR part 1054; (2) 

improved alignment with 40 CFR part 

1065; and (3) amendments to CA-Part 

1065 that maintain differences between 

California and EPA test procedures. 

CARB asserts that the 2011 SORE 

amendments do not affect the stringency 

of the exhaust emission standards and 

associated test procedures for SORE 

engines. 

1. Improved Alignment With Part 1054 

Part 1054 contains certification 

protocols, production-line testing 

requirements, credit-generation 

allowances, and other related provisions 

applicable to federally certified engines. 

Since CARB had already promulgated 

California-specific versions of these 

provisions for SORE engines, the 2011 

SORE amendments adopted language 

similar to Part 1054, but with 

modifications that substitute 

California’s specific emission standards, 

production-line testing requirements 

and credit-generations allowances for 

the corresponding federal provisions.58

2. Improved Alignment With Part 1065 

Part 1065 specifies the ‘‘state-of-theart’’ testing equipment, systems, and 

processes that must be utilized in 

conducting emissions testing of 

applicable engines. The 2011 SORE 

amendments largely align the test 

procedures applicable to 2013 and later 

model year engines with the 

requirements specified in Part 1065, and 

will therefore prevent the need for 

manufacturers to conduct separate 

emissions tests for certifying engines 

with EPA and CARB.59 Additionally, 

CARB states that a majority of engine 

manufacturers had already upgraded 

their test equipment in order to be 

compliant with Part 1065, and not 

aligning California and federal test 

procedures would mean that the use of 

the existing California test procedures 

would become increasingly impractical 

for manufacturers, independent testing 

facilities, and CARB.60 CARB adopted 

Part 1065 into the SORE test procedures 

except for the modifications discussed 

below. 

3. Amendments to CA-Part 1065 that 

Maintain Differences between California 

and EPA Test Procedures 

The 2011 SORE amendments 

maintain California-specific 

requirements applicable to new 2013 

and later model year SORE engines in 

the following areas: Allowance for 

supplemental engine cooling, 

measurement of particulate matter (PM) 

emissions from two-stroke engines, and 

exhaust emission certification test fuel 

requirements (discussed later in the 

decision).61 CARB believes that the 

existing California provisions in the 

SORE test procedures regarding 

supplemental cooling are more 

representative of in-use conditions than 

the corresponding federal provision, 

and are needed to maintain the 

stringency of California’s existing test 

procedures. The California provisions 

require that manufacturers justify the 

need for and the use of any auxiliary 

fans used to provide supplemental 

cooling, and further require that 

manufacturers demonstrate that the 

supplemental cooling is representative 

of in-use engine operation. CARB’s 

SORE emission standards include a PM 

emissions standard for two-stroke 

engines while EPA’s small nonroad 

engine standards do not.62 California’s 

existing regulations provide 

manufacturers the option of 

demonstrating compliance with the PM 

standard for two-stroke engines by using 

measured hydrocarbon emissions as a 

surrogate in lieu of determining actual 

PM emission levels.63 CARB determined 

that extending this option was 

warranted as it provides manufacturers 

flexibility in conducting the testing 

required for demonstrating emissions 

compliance, without affecting the 

stringency of the current PM emission 

standards. 

B. California’s 2011 Tier 4 Amendments 

The 2011 Tier 4 amendments enhance 

the harmonization of CARB’s exhaust 

emission requirements for new off-road 

CI engines with the corresponding 

federal emissions requirements for 

nonroad CI engines in 40 CFR parts 

1039, 1065, and 1068, as most recently 

amended by EPA in 2011.64 CARB states 

that the amendments correct clerical 

errors, standardize measurement 

specifications, calibrations, and 

instrumentation, remove unnecessarily 

burdensome reporting requirements, 

and provide additional compliance 

flexibility options without sacrificing air 

quality benefits.65 The 2011 Tier 4 

amendments dealt with three specific 

areas: (1) Modifications to Tier 4 offroad CI exhaust emission standards; (2) 

updated test procedures; and (3) 

amendments that maintain needed 

differences between California and EPA 

Nonroad CI programs. 

1. Modifications to Tier 4 Off-Road CI 

Exhaust Emission Standards 

The 2011 Tier 4 amendments aligned 

with the federal alternate combined 

oxides of nitrogen and non-methane 

hydrocarbons (ALT NOX + NMHC) 

standards and the corresponding family 

emission limit (FEL) caps for Tier 4 

engines ranging from 56 kW through 

560 kW.66 The amendments corrected 

clerical errors that unintentionally 

limited the years of applicability for 

several alternative FEL caps erroneously 

identified in the regulations and test 

procedures. The California Tier 4 OffRoad CI regulation and the federal Tier 


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67 Id. 

68 Id. 

69 Id. at 14. 

70 Id. 

71 Id. at 15. 

72 Id. 

73 Id. 

74 Id. at 16. 

75 Id. 

76 Id. 

77 Id. at 17. 

78 Id. at 17, 18. 

79 Id. at 18. 

80 Id. 

4 nonroad CI regulation allowed engine 

manufacturers to continue producing a 

small number of Tier 3 off-road CI 

engines using emission credits after the 

Tier 4 standards began.67 However, both 

the original EPA and California 

regulations inadvertently hindered 

manufacturers from using these 

certification allowances because the 

Tier 4 averaging programs did not allow 

manufacturers to show compliance with 

the existing 0.19 g/kW-hr NMHC 

standard using credits. To correct this, 

the 2011 Tier 4 amendments establish 

new Tier 4 alternative combined NOX + 

NMHC standards for off-road CI engines 

that align with the amendments to 

EPA’s nonroad CI regulation in 2007, 

which similarly provides manufacturers 

the option to use credits to show 

compliance with the new alternative 

NOX + NMHC standards for engines 

ranging from 56 kW through 560 kW.68

The 2011 Tier 4 amendments also revise 

the start dates for the ALT 20% NOX

FEL caps to correct an inconsistency in 

a regulatory table regarding the period 

of applicability for certifying engines to 

the ALT 20% NOX FEL caps that stated 

the period was only one or two years to 

the correct four-year period.69

2. Updated Test Procedures 

The 2011 Tier 4 amendments 

primarily revise California’s Tier 4 offroad CI engine test procedures to align 

them with the modifications to the 

corresponding federal nonroad CI 

engine test procedures that have been 

enacted by EPA since 2005 to improve 

the accuracy and precision of the 

measurement and reporting of emissions 

data. The new California off-road CI 

engine test procedures are comprised of 

three separate documents that largely 

incorporate provisions of the federal test 

procedures contained in 40 CFR parts 

1039, 1065, and 1068, but that also 

incorporate several California-specific 

modifications.70

The 2011 Tier 4 amendments 

incorporate EPA’s June 28, 2011 

modifications to Part 1039 into the new 

test procedure entitled ‘‘California 

Exhaust Emission Standards and Test 

Procedures for New 2011 and Later Tier 

4 Off-Road Compression Ignition 

Engines, Part I–D’’. Included among the 

alignments are modification of the 

criterion for selecting engine families 

regarding engine cylinder arrangement 

(§ 1039.230(b)(7)), removal of 

unnecessary and/or redundant labeling 

and notification instructions regarding 

the equipment manufacturer flexibility 

program (§ 1039.625), correction of 

clerical errors that inadvertently 

elevated the minimum standard for 

equipment flexibility engines beyond 

that originally intended 

(§ 1039.625(e)(3)), and clarification 

regarding the rounding of Averaging, 

Banking, and Trading credits 

(§ 1039.705(b)).71

The 2011 Tier 4 amendments deleted 

CARB’s existing CA-Part 1065-based test 

procedures and created a brand-new 

version in Part I–E based solely on 

CARB’s modifications to EPA’s 40 CFR 

1065 as it existed on June 28, 2011.72

The California alignments with 40 CFR 

1065 included in the 2011 Tier 4 

amendments are provisions for using 

and calculating an optional declared 

speed value (§ 1065.510(f)(3)(i)), and 

provisions regarding the standardization 

of calculating exhaust restriction set 

points (§ 1065.130(h)).73

The 2011 Tier 4 amendments 

incorporate EPA’s modifications to 40 

CFR part 1068 into the new test 

procedure entitled ‘‘California Exhaust 

Emission Standards and Test 

Procedures for New 2011 and Later Tier 

4 Off-Road Compression Ignition 

Engines, Part I–F’’. The 2011 Tier 4 

amendments included alignments 

regarding allowance for distributors to 

replace incorrect labels prior to sale of 

the engine to an ultimate purchaser 

(§ 1068.101(b)(7)(i)(D)), incorporation of 

provisions related to the duration and 

applicability of Executive Orders 

(§ 1068.103(c)), incorporation and 

clarification of anti-stockpiling 

provisions (§ 1068.103 and 105), 

revisions to the label content for 

replacement engines (§ 1068.240), 

clarification of the provisions for 

shipping engines independently of 

required after treatment and for 

delegated final assembly (§ 1068.260 

and 261), clarification that defect 

reporting applies only to regulated 

pollutants and revision of thresholds for 

filing reports (§ 1068.501), and 

incorporation of the federal definition 

for ‘‘Date of Manufacture’’ 

(§ 1068.801).74

The 2011 Tier 4 amendments also 

included a new section that establishes 

an anti-stockpiling provision that is 

consistent with recently added federal 

provisions in 40 CFR 1068.103 and 

1068.105 which address intentional 

over-production of engines prior to a 

year in which a change in the emissions 

standards occur.75 The new section 

makes clear that manufacturers cannot 

deviate from normal production and 

inventory practices to circumvent the 

regulations.76

3. Amendments That Maintain Needed 

Differences Between California and EPA 

Nonroad CI Programs 

The 2011 Tier 4 amendments also 

maintain differences from the federal 

provisions that are needed to support 

California’s unique air quality programs. 

These differences primarily consist of 

documentation requirements. CARB 

states that none of the differences 

present any technical obstacles for offroad engine manufacturers.77 The 

differences include: enhanced emissions 

control labeling beyond that required on 

federal labels to include information 

such as the certification power category 

or an explicit designation of the 

emissions tier to which the engine 

conforms; removing the prior assurance 

to manufacturers that preliminary 

approvals of certification will not 

usually be reversed absent the discovery 

of new information contrary to the 

findings that resulted in the preliminary 

approval; not exempting a small number 

of replacement engines from engine 

labeling requirements; and not 

incorporating EPA’s amended 

definitions of ‘‘engine,’’ which define an 

engine to be an engine block with an 

installed crankshaft and ‘‘partially 

complete engine’’ as defined in 40 CFR 

1068.30 and 1068.240.78

C. California’s 2011 Certification Test 

Fuel Amendments 

The 2011 Certification Test Fuel 

amendments modify the certification 

test fuel requirements for off-road SI, 

gasoline-fueled engines to allow the use 

of 10-percent ethanol-blend of gasoline 

(E10) as a certification fuel.79 The use of 

the E10 certification test fuel is allowed 

as an option for certification exhaust 

emission testing of new gasoline-fueled 

LSI, SORE, OHRV, and Recreational 

Marine off-road categories from the 2013 

through the 2019 model years, and is 

mandatory for certification exhaust 

emission testing of these categories 

beginning with the 2020 model year.80

The 2011 Certification Test Fuel 

amendments also provide 

manufacturers the option of using other 

renewable fuel blends that have been 

certified by CARB as yielding test 


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81 Id. 

82 Id. 

83This request excluded the amendment that 

establishes the Tier 4 alternative NOx + NMHC 

standards for off-road CI engines because this 

amendment will only be utilized by manufacturers 

that have accumulated emission credits. Such 

standards do not constitute mandatory compliance 

requirements, but instead provide a compliance 

alternative and do not require authorization. See 

Motor and Equipment Mfrs. Ass’n, Inc. v. 

Environmental Protection Agency (MEMA II), 627 

F.2d 1128, 1132 (D.C. Cir. 1979)(a regulatory 

compliance option is only a mandate that can result 

in a denial of a waiver if the regulation does not 

specify another technically feasible compliance 

option.) 

84 Id. at 21. 

85 Id. 

86 Id. at 22. 

87 Id. 

88 Id. 

89 Id. at 23. 

90 Id. 

91 Id. 

92 Id. 

results equivalent to, or more stringent 

than those resulting from E10, and 

which are appropriate for the 

certification of small off-road engines 

beginning with the 2013 model year.81

The amendments maintain test fuel 

consistency between on-road motor 

vehicles and most of the off-road 

categories and establish complete 

consistency between the off-road 

categories’ certification test fuels and 

commercially available fuels.82

D. Within-the-Scope Analysis 

California requested that the 

Administrator confirm that the 2011 

Amendments detailed above are within 

the scope of previously granted 

authorizations.83 California asserted that 

all three sets of 2011 amendments met 

all three within-the-scope criteria, i.e. 

that the amendments: (1) Do not 

undermine the original protectiveness 

determination underlying California’s 

regulations; (2) do not affect the 

consistency of the regulations with 

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

new issues affecting the prior 

authorizations.84 We received no 

adverse comments or evidence 

suggesting a within-the-scope analysis is 

inappropriate, or that any of the three 

sets of 2011 amendments fail to meet 

any of the three criteria for within-thescope confirmation. 

In regard to the first within-the-scope 

criterion, CARB found that the 2011 

Amendments did not cause the 

California emissions standards, in the 

aggregate, to be less protective of public 

health and welfare than applicable 

federal standards. California asserts 

their protectiveness determination is not 

arbitrary or capricious, and that the 

elements of the 2011 Amendments do 

not affect the stringency of the 

previously authorized SORE or Tier 4 

Off-Road CI emission standards and 

associated test procedures, or the other 

regulations and test procedures affected 

by these amendments (LSI, Recreational 

Marine, and OHRV).85 CARB asserts 

that, therefore, the subject regulations 

and test procedures continue to be at 

least as protective of public health and 

welfare as the federal nonroad 

emissions standards and test 

procedures. 

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 2011 Amendments is 

arbitrary or capricious. 

In regard to the second within-thescope criterion, the 2011 Amendments 

do not attempt to regulate new motor 

vehicles or motor vehicles engines and 

so are consistent with section 209(a). 

They likewise did not attempt to 

regulate any of the permanently 

preempted engines or vehicles, and so 

are consistent with section 209(e)(1). 

Finally, they did not cause any 

technological feasibility issues for 

manufacturers or cause inconsistency 

between state and federal test 

procedures, per section 209(b)(1)(C). No 

manufacturer raised technical feasibility 

or lead time concerns regarding the 

2011 Amendments.86 Additionally, the 

2011 Amendments are later than EPA’s 

corresponding amendments to the 

federal nonroad regulations and 

associated test procedures. Given these 

facts, EPA cannot find that the 2011 

Amendments are not technically 

feasible or do not provide sufficient lead 

time.87 CARB enacted the 2011 

Amendments at the behest of 

manufacturers who had already 

implemented modifications to their 

emissions facilities that are required by 

EPA’s corresponding amendments to the 

federal nonroad regulations. No 

technical feasibility or lead time 

concerns were raised regarding the 

elements of the 2011 Certification Test 

Fuel amendments either.88 These 

amendments establish complete 

consistency between the certification 

and the commercially available fuels for 

off-road engines subject to California’s 

SORE, LSI, Recreational Marine, and 

OHRV regulations.89 Manufacturers of 

off-road spark-ignition, gasoline-fueled 

engines have needed to account for the 

usage of E10 in their engines since 

December 31, 2009, and those engines 

have been capable of being emissions 

tested using E10 by that date, which 

precedes the 2020 model-year 

requirement to use E10 by ten years.90

The 2011 Amendments present no 

issue of incompatibility between 

California and federal test procedures, 

as they essentially harmonize 

California’s test procedures associated 

with the SORE, Off-Road CI Engine, LSI, 

Recreational Marine, and OHRV 

regulations with the corresponding 

federal test procedures. The 

corresponding federal regulations for 

such engines have already designated 

E10 as a test fuel for exhaust emissions 

testing, so the amendments do not 

impose inconsistent certification 

requirements so as to make 

manufacturers unable to meet both 

California and federal requirements 

with one test vehicle or engine.91

In regard to the third within-the-scope 

criterion, California stated that it is not 

aware of any new issues presented by 

the 2011 Amendments that affect the 

previously granted authorizations for 

the SORE, Off-Road CI Engine, LSI, 

Recreational Marine, or OHRV 

regulations, and EPA has received no 

evidence to the contrary.92 We therefore 

do not find any new issues raised by the 

amendments. 

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 2011 Amendments are 

confirmed as within the scope of 

previous EPA authorizations of 

California’s SORE, Off-Road CI Engine, 

LSI, Recreational Marine, or OHRV 

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 2011 amendments 

to CARB’s SORE regulations, Tier 4 OffRoad CI regulations, and Exhaust 

Emission Certification Test Fuel for OffRoad Spark-Ignition Engines, 

Equipment, and Vehicles regulations 

described above and CARB’s 

submissions for EPA review, EPA is 

taking the following actions. 

First, EPA confirms that California’s 

2011 amendments modifying its SORE 

regulations is within the scope of prior 

authorizations. Second, EPA confirms 

that California’s amendment modifying 

its Tier 4 Off-Road CI regulations is 

within the scope of prior authorizations. 

Third, EPA confirms that California’s 

amendment modifying its Exhaust 

Emission Certification Test Fuel for OffRoad Spark-Ignition Engines, 


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Equipment, and Vehicles regulations 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 February 9, 2016. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

section 307(b)(2) of the Act. 

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

Act, 5 U.S.C. 801, et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

rule for purposes of 5 U.S.C. 804(3). 

Dated: December 1, 2015. 

Janet G. McCabe, 

Acting Assistant Administrator, Office of Air 

and Radiation. 

[FR Doc. 2015–31189 Filed 12–10–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9939–86–OARM] 

Request for Nominations to the 

National Advisory Council for 

Environmental Policy and Technology 

(NACEPT) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice; request for nominations. 

SUMMARY: The Environmental Protection 

Agency (EPA) invites nominations to fill 

vacancies on its National Advisory 

Council for Environmental Policy and 

Technology (NACEPT). The Agency 

seeks nominees from a diverse range of 

qualified candidates representing the 

following sectors: Academia; state, 

local, and tribal governments; business 

and industry; and, non-governmental 

organizations. Potential vacancies are 

anticipated to be filled in April, 2016. 

Sources in addition to this Federal 

Register notice may be utilized in the 

solicitation of nominees. 

DATES: Nomination packages must be 

emailed or postmarked no later than 

January 15, 2016. 

ADDRESSES: Nomination packages may 

be mailed to: Eugene Green, Designated 

Federal Officer, Office of Diversity, 

Advisory Committee Management, and 

Outreach, U.S. Environmental 

Protection Agency (1601M), 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460. 

FOR FURTHER INFORMATION CONTACT: 

Eugene Green, Designated Federal 

Officer, U.S. EPA; telephone (202) 564– 

2432; fax (202) 564–8129; email 

green.eugene@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Background: The National Advisory 

Council for Environmental Policy and 

Technology (NACEPT) is a federal 

advisory committee chartered under the 

Federal Advisory Committee Act 

(FACA), Public Law 92–463. EPA 

established NACEPT in 1988 to provide 

advice to the EPA Administrator on a 

broad range of environmental policy, 

management and technology issues. 

Members serve as representatives from 

academia, industry, non-governmental 

organizations, and state, local, and tribal 

governments. Members are appointed by 

the EPA Administrator for two year 

terms. The Council usually meets 2–3 

times annually face-to-face or via video/ 

teleconference and the average 

workload for the members is 

approximately 10 to 15 hours per 

month. Members serve on the Council 

in a voluntary capacity. However, EPA 

provides reimbursement for travel and 

incidental expenses associated with 

official government business. EPA is 

seeking nominations from candidates 

representing all sectors noted above. 

Within these sectors, EPA is seeking 

nominees with a strong background in 

citizen science, crowd source 

monitoring and technologies, 

community sustainability, 

environmental justice and economic 

initiatives, ecology and biodiversity, 

public health, social science, and 

environmental policy and management. 

Nominees will be considered 

according to the mandates of the Federal 

Advisory Committee Act (FACA), which 

requires committees to maintain 

diversity across a broad range of 

constituencies, sectors, groups, and 

geographical locations. EPA values and 

welcomes diversity. In an effort to 

obtain nominations of diverse 

candidates, EPA encourages 

nominations from women and men of 

all racial and ethnic groups, as well as 

persons with disabilities. Please note 

that interested candidates may selfnominate. 

The following criteria will be used to 

evaluate nominees: 

—Professional knowledge of 

environmental policy, management, 

and technology issues, particularly 

issues dealing with all facets of 

citizen science. 

—Demonstrated ability to assess and 

analyze environmental challenges 

with objectivity and integrity. 

—Middle/Senior-level leadership 

experience that fills a current need on 

the Council. 

—Excellent interpersonal, oral and 

written communication skills, and 

consensus-building skills. 

—Ability to volunteer approximately 10 

to 15 hours per month to the 

Council’s activities, including 

participation in face-to-face meetings, 

video/teleconference meetings and 

preparation of documents for the 

Council’s reports and advice letters. 

EPA’s policy is that, unless otherwise 

prescribed by statute, members 

generally are appointed to two year 

terms. 

Prospective candidates interested in 

being considered for an appointment to 

serve on the Council, should submit the 

following items to process your 

nomination package: Nomination 

packages must include a brief statement 

of interest, resume, or curriculum vitae, 

and a short biography (no more than 

two paragraphs) describing your 

professional and educational 

qualifications, including a list of 

relevant activities and any current or 

previous service on advisory 


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