BEFORE THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

In the Matter of California’s Request for Confirmation that Certain
2008 Amendments to Spark Ignition Marine Engine and Boat Regulations are
Within-the-Scope of Previous  Authorizations Issued Pursuant to Section
209(e) of the Clean Air Act, and Request for New Authorization Under
Clean Air Act Section 209(e)(2) 

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

 SUBMITTED BY THE

 CALIFORNIA AIR RESOURCES BOARD

November 30, 2012

l. INTRODUCTION AND SUMMARY OF REQUEST

The California Air Resources Board (CARB or Board) requests that the
Administrator of the U.S. Environmental Protection Agency (EPA) take the
Clean Air Act (CAA) section 209 (e) actions described below for
CARB’s 2008 Amendments to its 

Spark Ignition Marine Engine and Boat regulations (2008 Amendments). 

CARB's marine engine program is an important part of efforts to improve
California’s air quality through reductions of hydrocarbon (HC) and
oxides of nitrogen (NOx) emissions. EPA first adopted emission standards
for outboard and personal watercraft (OB/PWC) in 1996.  Because of
California’s unique and severe air quality problems, more stringent
standards were necessary to meet State’s air quality goals and State
Implementation Plan (SIP) obligations.  In 1998, CARB approved exhaust
emission regulations for spark-ignition (gasoline) marine engines that
accelerated implementation of the 2006 federal standards for outboard
engine and personal watercraft in California to 2001. 

Finding that stern drive and inboard engines contributed significantly
to ozone-forming emissions in California, the Board adopted emission
standards for inboard and stern drive engines in 2001.  In 2006, CARB
amended California’s emissions regulations for new spark-ignition
inboard and stern drive engines to provide industry with additional
flexibility for complying with the exhaust standards, while preserving
the emission benefits of the existing regulation. 

On March 22, 2007, the EPA Administrator granted California
authorization to enforce CARB’s marine spark ignition engine
regulations for OB/PWC engines and Tier 1 of the California IB/SD marine
engine emissions standards  pursuant to section 209 (e) (2) of the CAA. 
On April 26, 2011, the EPA Administrator subsequently granted California
authorization to enforce CARB’s second tier (Tier ll) standards for
spark ignited inboard and sterndrive marine engines.  The regulations
that were the subject of these authorizations are referred to herein
collectively as, “CARB Marine Spark Ignition Engine regulations.”

The CARB Marine Spark Ignition Engine regulations require that new
engines comply with a total non-methane hydrocarbon plus oxides of
nitrogen (NMHC+NOx) exhaust standards and that certification and
environmental labels be attached to engines and/or boats to provide
prospective engine owners, current engine owners, and 

enforcement personnel with information about the relative cleanliness of
the engine.

The OB/PWC section of the regulations requires three tiers of
progressively more stringent exhaust standards from 2001 through 2008;
culminating in an emissions level of approximately 16 g/kW-hr NMHC+NOx
for a typical 75 kW OB/PWC engine.  The test procedures for OB/PWC
engines adopted by the Board were largely aligned with those already
promulgated by EPA, but CARB’s regulations required more stringent
long term emission standards for California engines.  These previously
authorized standards are detailed in the CARB Staff Report: Initial
Statement of Reasons (Staff Report), at pages 5-8 (Enclosure 2). 

Additionally, these previously authorized regulations required
manufacturers to employ on-board diagnostics marine (OBD-M) on SD/I
engines and boats complying with 

the 5.0 g/kW-hr NMHC+NOx standard and also provided selective
enforcement auditing, in-use compliance testing, consumer labeling, and
a defects warranty program.

The 2008 Amendments addressed technical issues that developed between
2006 

and 2008, made clarifications and corrected cross referencing errors,
and enhanced alignment with other CARB and EPA regulations. The
remainder of this section summarizes the specific actions CARB is
requesting. Section II provides a summary of the 2008 amendments and
Section III describes the criteria for granting the requested CAA
section 209 (e) (2) determinations and analysis for why the requested
actions should be granted. 

CARB is requesting two types of authorization actions on the 2008
Amendments. 

As detailed in Section lll (A) below, CARB requests confirmation that
the following requirements are within-the-scope of previous
authorizations or, in the alternative, new authorization to enforce:

Aftermarket Exemption Procedures Clarification

Optional Fifth Tier Added to Environmental Label Program

Optional Loaded Test Cycle for High Performance Engines

Optional Portable Measurement Systems for High Performance Engines

Optional Assigned Deterioration Factors for High Performance Engines

Optional Engine Discontinuation Allowance for SD/I Engines

Compliance Assistance for All Spark-Ignition Marine Engines  

Revised On-Board Diagnostic Marine Requirements

Replacement Engine Provisions 

Modification of Exhaust Standards for High Performance SD/I Engines

As detailed in Section lll (B), CARB requests new authorization to
enforce:

Revised Total Hydrocarbon Emission Standards

Enhanced Evaporative Emissions Controls for High Performance 

SD/I Engines  

Not to Exceed Limits

Revised Jet Boat Engine Standards

New Carbon Monoxide Emissions Standards 

ll. Summary of 2008 Amendments 

At its July 24, 2008 public hearing the Board approved the 2008
Amendments by Resolution 08-36 (Enclosure 5). At the direction of the
Board, after making modifications to the proposed amendments available
for supplemental public comment, CARB’s Executive Officer formally
adopted the rulemaking in Executive Order R-09-004 on June 5, 2009
(Enclosure 8).  The Amended Spark-Ignition Marine Engine regulations
were submitted to California’s Office of Administrative Law (OAL) for
review on June 5, 2009, and were approved by OAL and filed with
California’s Secretary of State on 

July 17, 2009.  The Amended Spark-Ignition Marine Engine regulations
became operative under state law on August 16, 2009.  

A summary of the 2008 Amendments follows.  A more detailed description
of these provisions is provided in the Staff Report (Enclosure 2) and
the Supplemental Modifications (Enclosure 3). 

2008 Amendments That  Did That Did Not Impose Emission Limits or Control
Technology And Do Not Require Preemption Determination

Standardized Engine Rebuilding Practices (all spark-ignition marine
categories)  

The amendments standardize procedures for rebuilding spark-ignition
marine engines in alignment with the engine rebuilding practices for
other off-road categories in California and are virtually identical to
that proposed by EPA for spark-ignition marine engines 

(40 CFR 1068.120).  See discussion in the Staff Report at page 20
(Enclosure 2) and title 13, CCR section 2441(a)(54) (Enclosure 9).

Revised Definitions 

In general, definitions were revised and adopted to enhance
harmonization with the requirements proposed by EPA in its May 18, 2007,
Notice of Proposed Rulemaking and Regulatory Impact Analysis documents
to ensure consistency between federal and State regulations regarding
applicability to specific engine configurations.   See discussion in the
Staff Report at pages 24-25 (Enclosure 2) and title 13, CCR section
2441(a)(5, 21-71) (Enclosure 9).

The definition of “New Propulsion Marine Engine or New Engine” was
adopted to clarify that any engine installed for sale in a new vessel,
whether the engine is rebuilt, remanufactured, or used, must comply with
the emission requirements in effect for new engines at the time the
engine was installed.  The definition is the same as that used 

by EPA.  See title 13, CCR section 2441(a)(44) (Enclosure 9) .	

Hang Tag Durability

Prior to 2008, the requirements for environmental labels mandated a
non-permanent label (i.e., hang tag) to be displayed on marine engines
at the time of sale, but provided no material specifications for the
construction of the hang tag.  The 2008 amendments gave the CARB
Executive Officer the discretion to require a demonstration of
durability for any hang tag suspected of being too fragile to remain
viable for two years.  See discussion in the Staff Report at page 20
(Enclosure 2) and title 13, CCR section 2443.3 (Enclosure 9).

Summary of 2008 Amendments that are Within the Scope of Previously
Granted Authorizations or that, in the Alternative, Should be Granted a
New Authorization 

Aftermarket Exemption Procedures Clarification

A correction was needed to the CARB Marine Spark Ignition Engine
regulations to correct a cross referencing error.  After emission
standards were adopted for SD/I engines 

in 2001, a corresponding adjustment to the aftermarket exemption
procedures did not occur.  These procedures were in conflict with the
applicability section of the aftermarket regulations, which grants
exemption applicability to all off-road engines subject to California or
federal emission standards.  As noted in the Staff Report, there has
been no consequence to this apparent conflict in practice (Enclosure 2,
page 21).  The 2008 Amendments removed the exclusion of eligibility for
an aftermarket exemption for 

SD/I parts.  See discussion in the Staff Report at page 21and title 13,
CCR

section 2474 (Enclosure 9) .

Optional Fifth Tier Added to Environmental Label Program

California’s environmental label program as previously authorized by
EPA consisted of four tiers.  CARB added a fifth tier of voluntary
emission standards to which manufacturers may certify spark-ignition
marine engines.  Engines certified to these voluntary requirements are
eligible for a new five-star emissions rating.  See discussion in the
Staff Report at page 16 (Enclosure 2) and title 13, CCR sections 2442(d)
and 2443.2 (Enclosure 9).

Optional Loaded Test Cycle for High Performance Engines

The 2008 Amendments provided three new options for CARB certification of
high performance (  HYPERLINK "http://en.wikipedia.org/wiki/Bracket" \l
"Uses_of_.22.3C.22_and_.22.3E.22" \o "Bracket"  > 373kW) marine engines
to provide additional flexibility while retaining the emissions benefits
of preexisting requirements.  The amendments included an optional
certification test cycle for all high performance SD/I engines.  The
optional cycle is similar to the required steady-state test cycle, but
instead of measuring emissions at 

a “no load” idle, the test is at a 15 percent load.  High
performance engines typically operate at loaded idle since much of their
operation occurs while going through numerous zones near docks and
swimming areas with five mile per hour 

“no wake” speed limits.  Loaded idle operation is therefore more
representative of high performance engine operation than “no load”
idle operation.  See discussion in the Staff Report at pages 24-25
(Enclosure 2) and title 13, CCR section 2441(a)(5, 21-71) (Enclosure 9).

Optional Portable Emissions Measurement Systems for High Performance
Engines

For the certification of high performance SD/I engines manufactured in
extremely low

volumes, the Board adopted as an option to engine dynamometer testing,
the use of portable emissions measurement systems (PEMS) for
measurements in the laboratory or in the field.  Eligible PEMS must
comply with the same specifications and verifications as the laboratory
instrumentation described in the spark-ignition marine engine test
procedures, but with added flexibility per the incorporation of the
provisions for portable measurement systems from sections 1065.901
through 1065.940 of 

Title 40, Code of Federal Regulations.

The PEMS option is limited to manufacturers that produce no more than 75
engines per year nationally (roughly 10 percent of which end up in
California) to ensure a reasonable mix of dynamometer and PEMS data for
comparison.  Such an amendment would greatly reduce the cost of
compliance for the many small volume manufacturers in the high
performance sector.  See discussion in the Staff Report at page 17
(Enclosure 2).  

Optional Assigned Deterioration Factors for High Performance Engines

The Board adopted the optional use of assigned deterioration factors for
high

performance engines regardless of production volumes.  Emissions
deterioration over a

high performance engine’s useful life is expected to be relatively
small considering an engine’s 50-hour or 150-hour rebuild frequency. 
Therefore, the assignment of reasonable deterioration factors provided a
cost effective and low-risk alternative to the

traditional method of determining deterioration factors.  See discussion
in the 

Staff Report at page 17 (Enclosure 2).

Optional Engine Discontinuation Allowance for SD/I Engines

After the adoption of the 2005 CARB marine regulations, engine
marinizers (those who modify existing automobile engines to operate in
marine environment) encountered the unanticipated discontinuation of
engines by the base engine supplier and lack of development time
necessary to develop reliable emission control systems for the engines
that replace them.  CARB adopted the option of an Engine Discontinuation
 Allowance whereby manufacturers could certify one engine family per
year to current emission certification levels if they certified one or
more other SD/I engine family to more stringent standards to make up for
the emissions deficit.  This allowed flexibility without an impact on
emissions.  See discussion in the Staff Report at pages18-19 (Enclosure
2) and title 13, CCR section 2442 (Enclosure 9).

Compliance Assistance for All Spark-Ignition Marine Engines 

A separate provision applicable to all spark-ignition marine engines
granted the 

Executive Officer discretion to issue additional compliance assistance
for matters of extreme hardship for which the engine discontinuation
allowance may not be completely adequate.  Such compliance assistance
would not be automatically available to the manufacturer; the
manufacturer would be required to show proof that the situation was
completely beyond its control, and that the manufacturer had done
everything feasible to resolve the situation under existing provisions. 
See discussion in the Staff Report at page 19 (Enclosure 2) and title
13, CCR section 2442(g) (3) (Enclosure 9).

Revised On-Board Diagnostics Marine (OBD-M) Requirements

CARB’s previously authorized regulations required manufacturers to
employ OBD-M on SD/I engines and boats complying with the 5.0 g/kW-hr
NMHC+NOx standard and also provided selective enforcement auditing,
in-use compliance testing, consumer labeling, and a defects warranty
program.

When the OBD-M requirements were originally adopted in 2006, industry
believed that catalyst construction would have to be far more robust
than that of existing automotive catalysts to meet the 5.0 g/kW-hr
NMHC+NOx standard and remain durable in a water environment.  Because of
that assumption, industry contended that misfire would not be an issue
regarding catalyst durability and CARB agreed to make misfire monitoring
a conditional OBD-M requirement.  Prior to the 2008 amendments, misfire
monitoring was only required when CARB or the certifying manufacturer
determined that engine misfire would cause the catalyst to fail before
the emissions durability period of the engine had elapsed.

Manufacturers then began certifying SD/I engines in California, and all
voluntarily included misfire monitoring as part of their OBD-M systems. 
This is due in part because they had found ways to incorporate
conventionally designed catalytic converters that were susceptible to
damage from engine misfire.  As such, and because misfire monitoring had
already been introduced voluntarily, CARB believed that mandatory
misfire monitoring should be required for all OBD-M systems starting in
2010.  

See discussion in the Staff Report at pages 19-20 (Enclosure 2) and
title 13, CCR section 2442.2 (Enclosure 9).

The amendments also eased the transition to OBD-M for manufacturers of
high performance engines by extending compliance dates to allow for the
deployment of more sophisticated on-board computers and/or by
temporarily relaxing the requirement for audio/visual alert device
(i.e., malfunction indicator light) activation.

Replacement Engine Provisions 

Previously, California Exhaust Emission Standards and Test Procedures
for 2001 Model Year and Later Spark-Ignition Marine Engines required new
SD/I replacement engines to comply with current model year emission
standards.  This unintentionally necessitated that a catalyst-equipped
engine be used to replace the engine in an older model boat that may not
be properly designed to accommodate or support a 

catalyst-equipped engine (e.g., limited engine compartment space,
incompatible wiring harnesses, etc.).  The 2008 Amendments require
installation of the cleanest engine currently available that can be
installed in a boat without unreasonable modifications when replacing an
existing engine. If no cleaner engine is available or compatible with
the boat, a less stringent new replacement engine would be allowed so
long as its emissions performance is at least as stringent as that of
the engine being replaced.  See discussion in the Staff Report at page
20 (Enclosure 2) and title 13, CCR section 2442(e) (Enclosure 9).

Modification of Exhaust Standards for High Performance SD/I Engines 

The high performance engine sector (engines with maximum power greater
than 373 kilowatts (500 horsepower)) in California consists of a
relatively small number of manufacturers that cumulatively sell between
200 - 250 new engines statewide each year. Despite this small number of
engines, the emissions contribution from this category is not trivial. 
California’s previously authorized spark-ignition marine regulations
required high performance SD/I engines to comply with a 

5.0 g/kW-hr HC+NOx exhaust standard as of 2009.  The regulation allowed
standard performance and high performance engine family emission levels
to be averaged within a manufacturer’s product line as a means to
facilitate compliance.

Technical obstacles existed regarding the effective use of catalytic
converters on high performance marine engines.  There also was a
competitive disadvantage that averaging placed on small volume
manufacturers who did not have enough standard performance engines to
generate offsets.  The 2008 Amendments modified the high performance
engine requirements to address both of these concerns.

The Board relaxed the 2009 and later HC+NOx exhaust standard for small
volume manufacturers of high performance engines (see Table 3.2 in the
Staff Report, at page 14) (Enclosure 2).  Large volume dual category
manufacturers continue to have to meet the existing HC+NOx exhaust
standard, but may use averaging beginning in 2009.  See discussion in
the Staff Report at pages 13-15 and title 13, CCR section 2442(b)
(Enclosure 9).

Emissions shortfalls, if any, were compensated for in the enhanced
evaporative emissions control discussed in Section C (2) below.

C.  Summary of 2008 Amendments That Establish New or More Stringent
Standards That Should be Granted a New Authorization

The following 2008 Amendments created new or more stringent emission
standards for new SD/I marine engines.

Revised Total Hydrocarbon plus Oxides of Nitrogen (HC+NOx) Standards
(all spark-ignition marine categories)

As previously authorized, CARB regulations require spark-ignition marine
engines to comply with NMHC+NOx standards as a condition of
certification and sale in California.  Only the non-methane component of
hydrocarbon was included in those standards because the intent of the
regulation was to control ozone and methane does not contribute to ozone
formation in the atmosphere.  However, methane has been identified as
one of the greenhouse gases responsible for manmade global warming;
therefore, marine standards, as amended, now reflect the total
hydrocarbon species.  This harmonizes the form of California’s
spark-ignition marine standards with that proposed by EPA for gasoline
fuel certification.  See discussion in the Staff Report at page 11
(Enclosure 2) and title 13, CCR section 2442 (Enclosure 9).

Enhanced Evaporative Emissions Controls for High Performance SD/I
Engines  

To compensate for the shortfall in emission benefits from the change in
exhaust standards, all boats using 2009 and later high performance SD/I
engines were required to incorporate enhanced evaporative controls,
including evaporative control canisters and low permeation fuel tanks
and hoses.  The evaporative requirements were based on national data
compiled by EPA and rely in part on the analyses presented in the 

May 18, 2007, Notice of Proposed Rulemaking and its incorporated
Regulatory Impact Analysis (RIA 2007).  See discussion in the Staff
Report at pages 13-15 (Enclosure 2) and title 13, CCR section 2442(b)
(Enclosure 9) .  As noted in the Staff Report at page 26, the 2008
Amendments to High Performance SD/I Engine Standards retain the
emissions benefits of CARB’s previously authorized Marine Spark
Ignition Engine regulations.

Not-To-Exceed (NTE) Limits (all spark-ignition marine engines, except
SD/I > 373 kW)

CARB amended the regulations to harmonize with federal NTE requirements
for OB/PWC engines and SD/I engines with rated power less than or equal
to 373 kW.  The NTE requirements ensure emissions control in modes of
engine operation that are not fully represented by the certification
test cycle.  Although engine manufacturers would be required to certify
separately in California no additional testing beyond that is federally
required.  See discussion in the Staff Report at pages 15-16 (Enclosure
2) and title 13, CCR section 2442(c) (Enclosure 9).

Revised Jet Boat Engine Standards

The 2008 Amendments provide enhanced alignment with the federal
definitions for “Sterndrive/inboard engine” and “Jet boat” and
require manufacturers that were certifying jet boat engines to the
OB/PWC standards to certify them to the more stringent SD/I standards. 
This change was necessary as jet boats typically compete in the same
market as boats with sterndrive engines, and was needed to prevent a
potential shift in the sterndrive market favoring greater production and
sales of higher emitting OB/PWC engines. 

EPA has allowed manufacturers of jet boats with OB/PWC engines to comply
federally by using banked emission credits until 2012.  CARB regulations
did not permit the banking of emission credits so manufacturers would
have been required to have made the transition immediately.  To help
facilitate the transition to the SD/I standards, CARB made the following
amendments: 

Jet boat engine families previously certified to the OB/PWC standards 
could continue to be certified to the OB/PWC standards until 2012;

Beginning in 2010, newly introduced jet boat engine families had to
comply with the SD/I requirements upon introduction, but same-year
offsets from any other jet boat or OB/PWC engine family may be used to
comply with the HC+NOx standards through averaging until 2012. 
Compliance with the proposed CO standards would need to be met without
averaging.  Engine families certified to the OB/PWC HC+NOx standards in
prior years, but not used in jet boat applications until 2010 would be
considered newly introduced jet boat families;

Jet boat engines previously certified in the same engine family as
OB/PWC engines had to be certified separately and in a unique engine
family beginning in 2010 if newly introduced, or in 2012 otherwise.

See discussion in the Staff Report at pages 10-11 (Enclosure 2) and
24-25 and title 13, CCR section 2442(g) (Enclosure 9).

New Carbon Monoxide Standards  

 

EPA first adopted carbon monoxide (CO) standards for all spark-ignition
marine engines on October 8, 2008, which became effective in 2010.  The
CO standards adopted by CARB as part of the 2008 amendments apply to
OB/PWC and SD/I engines and essentially capped CO emissions at then
current measured levels.  The CO standards adopted by CARB differ
slightly from the federal standards for OB/PWC and 

SD/I engines in that the California standards apply to each engine
family whereas the proposed federal standards can be met using
averaging.  As a result, some manufacturers may need to adjust engine
calibrations on some applications to comply with the adopted California
standards, but such modifications are expected to be rare and minor. 
CARB did not provide for CO averaging because of the immediate risk from
CO poisoning that higher emitting engines would pose to vessel
occupants; not to mention the added complexity that would be added to
the State’s enforcement efforts should multiple emissions
configurations become applicable (via averaging) to engines whose final
point-of-sale destinations are not always predictable.  See discussion
in the Staff Report at pages 11-13 (Enclosure 2) and title 13, CCR
section 2442(b and c) (Enclosure 9).

III.	criteria for granting THE CAA section 209 REQUESTED determinations
for THE 2008 Amendments AND ANALYSIS 

Section 209(e)(2) of the CAA sets forth the protocol for granting
California authorization to adopt and enforce standards and other
requirements relating to controlling emissions from nonroad engines that
are not otherwise specifically preempted from all state regulations
under section 209(e)(1).  Under section 209(e)(2), the Administrator is
directed to grant the authorization to California if the Administrator
determines that the State's standards will be in the aggregate, at least
as protective of public health and welfare as applicable federal
standards.  The Administrator is to deny a waiver only if she finds
that: (1) the protectiveness finding of the State is arbitrary and
capricious, 

(2) California does not need separate State standards to meet compelling
and extraordinary conditions, or (3) the State’s standards and
accompanying enforcement procedures are not consistent with section 209
of the CAA.  In considering consistency under section 209(e)(1), the
Administrator has determined that she must consider consistency with not
only section 202(a) – as required under section 209(b)(1)(C) – but
also with sections 209(a) and 209(e)(1).  

In addressing a within-the-scope of a previous authorization request,
EPA has explained: 

If California acts to amend a previously authorized standard or
accompanying enforcement procedure, the change may be included within
the scope of the previously granted authorization if it does not
undermine California’s determination that its standards, in the
aggregate, are as protective of public health and welfare as applicable
Federal standards, does not affect the consistency of California’s
requirements with section 209 of the [CAA], and raises no new issues
affecting the Administrator’s previous authorization determination.

In addressing authorizations for associated enforcement requirements,
the Administrator has considered whether the enforcement procedures are
so lax that they threaten the validity of California’s determination
that its standards are as protective of public health and welfare as
applicable federal standards and whether the enforcement procedures
conflict with federal procedures.

Finally, in light of the similar language of sections 209(b) and
209(e)(2), EPA has analyzed requests for California authorization and
within the scope determinations under 209(e)(2) using the same
principles that it has historically applied in analyzing motor vehicle
waiver requests under section 209(b).  These principles include, among
other things, that EPA should limit its inquiry to the specific criteria
identified in section 209(e)(2); and that it give substantial deference
to the policy judgments California has made in adopting its regulations.
 California’s regulations and protectiveness determinations are
presumed to satisfy the criteria for granting a waiver, and the burden
to show otherwise is on those persons challenging the waiver request.  

The Administrator Must Confirm CARB’s Request that Certain of the 2008
Amendments Are Within-the-Scope of Previous Authorizations or, in the
Alternative, Grant a New Waiver

Certain Amendments Are Clearly Within the Scope 

As summarized above, CARB requests that the Administrator confirm that
the following 2008 Amendments are within the scope of the previously
granted authorizations for CARB Marine Spark Ignition Engine
regulations:  

Aftermarket Exemption Procedures Clarification

Optional Fifth Tier Added to Environmental Label Program

Optional Loaded Test Cycle for High Performance Engines

Optional Portable Measurement Systems for High Performance Engines

Optional Assigned Deterioration Factors for High Performance Engines

Engine Discontinuation Allowance for SD/I Engines

Compliance Assistance for All Spark-Ignition Marine Engines  

Revised On-Board Diagnostic Marine  Requirements

Replacement Engine Provisions 

If California acts to amend a previously authorized standard or
accompanying enforcement procedure, the amendment may be considered
within-the-scope of a previously granted authorization if: 

a.  The law or regulation amends a previously authorized standard or 

      accompanying enforcement procedure;

b.  that does not undermine California's determination that its
standards in the 

     aggregate are as protective of public health and welfare as
applicable

     Federal standards;

c.  that does not affect the consistency with section 209 of the CAA,
and 

d.  that raises no new issues affecting EPA's previous authorization

     determination.  

The Above-Identified 2008 Amendments Amend Previously Authorized
Standards

The majority of the regulations in this category consist of additions of
optional compliance mechanisms for regulations previously authorized.  

The OBD-M requirements taken as a whole establish a single monitoring
system which may only be certified if it fully complies with all
requirements.  Thus, even though there are numerous monitoring
requirements and diagnostics that must be met, they should for purposes
of within the scope analysis be considered as just one standard.  

EPA recognized this in granting a previous waiver to California for OBD
for motor vehicles: 

[U.S.] EPA agrees . . . that CARB’s OBD II regulation should be
treated as a standard under section 209 . . . . EPA believes that the
classification of CARB’s OBD II requirements as a standard for
purposes of section 209 is consistent with statutory language, case law,
and with past waiver practice. 

The 2008 Amendments to the OBD-M regulations were intended to adjust and
upgrade the OBD-M systems, for which authorization was granted in 2007. 
They do not mandate a new system or require appreciable hardware
changes.

The Above-Identified 2008 Amendments Do Not Undermine California's
Protectiveness Determination

In initially adopting the Spark Ignition Marine Engine and Boat
Regulations in 1998, 

the Board found that the regulation was in the aggregate at least as
protective of 

public health and welfare rather than applicable federal regulations. 
In granting California authorization for the regulation, the
Administrator affirmed that this determination was neither arbitrary nor
capricious.  In adopting the 2008 Amendments, the Board approved
Resolution 08-36 (Reference 5), in which it expressly declared:

BE IT FURTHER RESOLVED that the Board hereby determines the regulations
approved herein will not cause the California emission standards, in the
aggregate, to be less protective of public health and welfare than
applicable federal standards. 

This finding was reaffirmed by the CARB Executive Officer.  No basis
exists for the Administrator to find that the Board’s determination is
arbitrary or capricious.  The 2008 Amendments addressed issues that
developed since CARB last considered similar regulations (November 2005)
and enhanced alignment with other CARB and EPA regulations. 

Many of the 2008 Amendments provided industry with compliance options
for high performance SD/I engines that preserved the emissions reduction
goals of the previously authorized regulations (i.e., they are
emissions-neutral with respect to the existing regulations).  As shown
in the Staff Report on page 26-29 (Enclosure 2), no adverse
environmental impacts were expected as a result of amendments).  All of
the 2008 Amendments are either emissions reducing or emissions neutral.

As detailed in the Environmental Impacts portion of the Staff Report at
pages 25-29, the CARB Marine Spark Ignition Engine regulations as
modified by the 2008 Amendments exceed applicable federal standards for
similar type new engines.  As for CARB’s in-use requirements for
marine engines, there is no question that the 2008 Amendments are more
stringent than applicable federal regulations for the simple reason that
EPA is without authority to regulate in-use nonroad engines.

The Above-Listed 2008 Amendments Are Consistent with Section 209 of the
CAA  

For a California nonroad regulation to be consistent, it must not
regulate either 

motor vehicles that are preempted under section 209(a) or engines that
are specifically preempted under section 209(e)(1).  The 2008 Amendments
neither broaden, nor attempt to broaden, the applicability of the CARB
Marine Spark Ignition Engine regulations to cover either motor vehicles
or nonroad engine expressly preempted under section 209(e)(1).   

The 2008 amendments must also be consistent with CAA section
209(b)(1)(C).  Under section 209(b)(1)(C), the Administrator may not
grant a motor vehicle waiver if the Administrator finds that
California’s standards and accompanying enforcement procedures are not
consistent with section 202(a) of the CAA.  EPA has interpreted
consistency under section 202(a) to be a two-prong test: (1) that there
is sufficient lead time to permit the development of technology
necessary to meet the standards and other requirements, giving
appropriate consideration to the cost of compliance in the time frame
provided, and (2) that the California and federal test procedures are
sufficiently compatible to permit manufacturers to meet both the state
and federal test requirements with one test vehicle or engine.  The
reference to “cost of compliance” in CAA section 202(a) refers to
the economic costs of emission standards and accompanying enforcement
procedures and the timing of a particular emission control regulation
rather than to its social implications.  

Lead time to permit the development of technology necessary to meet the
standards is not an issue, as the 2008 Amendments were designed to
assist manufacturers in addressing feasibility issues that had arisen
with previously authorized regulations and to offer new compliance
options.  The only regulation that might raise the issue of lead time is
the revision to the OMD-M standard and that is not an issue as all
manufacturers were voluntarily supplying this information prior to the
enactment of the regulation.

No New Issues Exist

CARB is not aware of any new issues affecting the previously granted
authorization determination for the CARB Marine Spark Ignition Engine
regulations.  The amendments do not force any change in technology to
warrant revisiting conclusions reached in granting the existing
authorization.  California's need for the emission reductions retained
by the 2008 Amendments obviously remains compelling.  It is therefore
entirely appropriate for EPA to approve the within-the-scope request. 

Alternatively, a New Authorization Must Be Granted for the 2008
Amendments Described Above.

If the Administrator were to find that a within-the-scope determination
cannot be granted for any of the above-identified 2008 Amendments, she
must grant CARB a new authorization for those amendments based on the
same record CARB has provided.

Protectiveness and Consistency Findings 

For the reasons described above, the Administrator must find that the
Board’s determination that the amended standards continue to be at
least as protective of public health and welfare as applicable federal
standards was neither arbitrary nor capricious and that the amendments
are consistent with section 209.

Compelling and Extraordinary Circumstances 

In adopting Resolution 08-36 (Reference 5), the Board also confirmed
CARB’s longstanding position that California continues to need its own
nonroad engine program to meet serious air pollution problems.  The
relevant inquiry under section 209(e)(2)(A)(ii) is whether California
needs its own emission control program to meet compelling and
extraordinary conditions, not whether any given standard is necessary to
meet such conditions. The Administrator has previously and consistently
recognized that California meets the compelling and extraordinary
criterion when granting waivers for motor vehicles under section 209(b)
and authorizations for California’s nonroad regulations under section
209(e) of the CAA.  No basis exists for the Administrator to deny
California a waiver under this criterion.  

Consistency

Section 209(e) (2) (A) (iii) provides that the Administrator shall not
authorize California to regulate nonroad sources if “California’s
standards and accompanying enforcement procedures are not consistent
with this section.”  In the Final 209(e) Rule, U.S. EPA interpreted
“consistent with this section” to mean all of section 209, including


section 209(b) (1) (C).  It accordingly concluded that the
“consistency” criterion review of nonroad requests should parallel
that of on-road motor vehicle waiver requests. 

The Administrator has established a two-part test for determining
whether California’s standards and test procedures are consistent with
section 202(a).  First, California’s standards and test procedures
must be technologically feasible in the lead time provided considering
the cost of compliance.  Second, the test procedures must be compatible
with federal test procedures.  

Technological Feasibility and Lead Time

Section 202(a) (2) provides that a regulation shall take effect after
such period as the Administrator finds necessary to permit the
development and application of the requisite technology, giving
appropriate consideration to the cost of compliance.  

In both its Staff Report (Enclosure 2) and Final Statement of Reasons
(Enclosure 10),  CARB has demonstrated that either the necessary
technology presently exists to meet the established standards or has
specifically identified the projected control technology, answered
objections raised by industry regarding that technology, and has
explained its reasons for believing that each of the steps can be
completed in the time available. 

The revised On-Board Diagnostics Marine (OBD-M) requirements described
in 

Section A (10) above are technically feasible.  No additional hardware
is required to monitor misfire and manufacturers generally like being
able to detect misfire and to alert the vessel operator when their
engine is misfiring because early diagnosis can prevent further harm to
the engine and can potentially result in savings by the manufacturer in
not having to pay for expensive warranty claims when an engine is
damaged because of prolonged and excessive misfire.  As noted above,
manufacturers were voluntarily submitting the misfiring information
before the 2008 Amendments were put into effect

 

As discussed in the Staff Report on pages 29-31 (Enclosure 2), the 2008
Amendments were not expected to result in additional costs that would
impact the feasibility standard.

For the above reasons, the Administrator must grant California a new
waiver for those Amendments that she cannot find to be within the scope
of previously granted authorizations.  

State Test Procedures Are Compatible with Federal Test Procedures

 

None of the regulations in the 2008 Amendments require testing that is
incompatible with federal testing procedures.  CARB’s goals in
amending the marine regulations were to address any potential conflict
with the federal regulations that may have hindered or unnecessarily
complicated certification, including duplicative testing. 

The Administrator Must Grant a New Authorization for the Those
Amendments that Establish New or More Stringent Standards

CARB respectfully requests that a new authorization for the following
2008 Amendments that establish new, more stringent standards:  

Revised Total Hydrocarbon Emission Standards

Enhanced Evaporative Emissions Controls for High Performance SD/I
Engines  

Not to Exceed Limits

Revised Jet Boat Engine Standards

New Carbon Monoxide Emissions Standards 

Protectiveness and Compelling and Extraordinary Circumstances Findings 

For the reasons described in Section III (A)(1)(b) above, the
Administrator must find that the Board’s determination that the
amended standards continue to be at least as protective of public health
and welfare as applicable federal standards was neither arbitrary nor
capricious and that the amendments are consistent with section 209. 
Similarly, for the reasons set forth in Section III (A) (2) (b) above,
the Administrator should find that compelling and extraordinary
conditions continue to exist that establish the need for California’s
independent mobile source programs. 

Consistency Findings

 Consistent with CAA Sections 209(a) and (e)(1)

As with the 2008 Amendments that CARB believes to fall within the scope
of previously granted waivers, CARB finds that the amendments that
require a new waiver are consistent with the CAA sections 209(a) and (e)
(1) in that the amendments continue not to regulate new motor vehicles
or motor vehicle engines, new locomotives or locomotive engines, or new
nonroad engines under 175 horsepower that are used in farm and
construction vehicles and equipment.  

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

The technological feasibility of the existing spark-ignition marine
regulations has already been established by staff in its reports to the
Board during the 1998, 2001, and 2005 rulemakings and previously
authorized.  The technologies such as four-stroke and direct injection
two-stroke technologies, leaner air-fuel calibration, electronic fuel
injection, oxygen sensor feedback fuel control, catalytic converters,
and on-board diagnostics have all been determined to be feasible and
appropriate for marine applications.

The 2008 Amendments are technically feasible, see discussion in the CARB
Staff Report at pages 23-24. CARB Executive Orders approving engines and
equipment that meet the 2008 Amendment standards may be found at
CARB’s website http://www.arb.ca.gov/msprog/offroad/cert/cert.php; 
select category “spark-ignited marine engines” and model years 2009
and after.

The 2008 Amendments HC+NOx standards are technically feasible. 
Virtually all regulated spark-ignition marine manufacturers in
California had already voluntarily submitted total hydrocarbon
measurements in their certification applications to eliminate having to
speciate emission samples.  The methane component is only about one
percent of the total hydrocarbon species for gasoline and does not
constitute much of a change in ozone precursor reductions.

The additional evaporative emission such as evaporative carbon canisters
and low-permeation hoses are well-established, have been used
successfully by the automotive industry for many years, and are
currently required for use on other off-road applications including some
lawnmowers.  U.S. EPA has also demonstrated the feasibility of carbon
canisters and low-permeation hoses in marine applications as part of its
current proposed rulemaking for spark-ignition marine engines.  The
carbon canisters and hoses for high performance SD/I engines are
expected to have similar material specifications as those mentioned in
the referenced studies, and are indeed the same as those on which
staff’s and U.S. EPA’s proposals are based. 

The new Carbon Monoxide standards are technically feasible.  Compliance
with the standards did not require the incorporation of any additional
technology not already required by existing California regulation.  

The Replacement Engine Provisions are technically feasible and were
designed to alleviate an equipment compatibility issue.

IV. CONCLUSION

Based on the foregoing, CARB respectfully requests that the
Administrator grant California’s requests for the determinations and
authorization action as described in this document pursuant to CAA
section 209(e).  To assist you in reviewing the requests, CARB has
enclosed a Compact Disc (CD) containing the following referenced
documents to be included in the record of this waiver proceeding.

Reference Materials from the 2008 Amendments to its Spark Ignition
Marine Engine and Boat regulations (as titled on the enclosed CD)

1.	Public Hearing Notice dated May 27, 2008. (Enclosure 1 Notice)

2.	CARB Staff Report: Initial Statement of Reasons for Proposed
Rulemaking, with Attachments A, B and C, dated June 6, 2008. (Enclosure
2 ISOR with Attachments)

3.	Second Notice of Public Availability of Modified Text dated May 14,
2009 with 

Appendix 1: Staff's Supplemental Modifications to the Proposed
Regulation Order and Appendix 2: Supplemental Test Procedure
Modifications. (Enclosure 3 Second 15 Day)

4.	First Notice of Public Availability of Modified Text and Availability
of Additional Documents dated March 25, 2009 with Appendix 1 Staff
Modifications to the Proposed Regulation Order, Appendix 2 Test
Procedures, Appendix 3 Resolution 08-36, Appendix 4 Staff's Suggested
Modifications to the Original Proposal, as distributed at the July 24,
2008, Board hearing and Appendix 5 Society of Automotive Engineers (SAE)
J1939-05 OBD-M Implementation Guidelines. (Enclosure 4 First 15 Day)

Final Resolution 08-36 with Attachment D. (Enclosure 5 Final Res. 08-36
with Attachment D)

6.	Copy of Slides from Staff Presentation. (Enclosure 6 Slide
Presentation)

7.	CARB Board Proposed Resolution 08-36, dated July 24, 2008, with
Attachment D: Staff's Suggested Modifications to the Original Proposal,
as distributed at the July 24, 2008, Board hearing. (Enclosure 7
Proposed Resolution 08-36 with Attachment D)

8.	Executive Order R-09-004 dated June 9, 2009. (Enclosure 8 Executive
Order R-09-004)

9.	Final Regulation Order. (Enclosure 9 Final Regulation)

10.	Final Statement of Reasons for Rulemaking, Including Summary of
Comments and Agency Response. (Enclosure 10 FSOR)

11.	Transcript of July 24, 2008 Public Hearing in the 2009
Spark-Ignition Marine Engine Regulation rulemaking. (Enclosure 11
Transcript 06-24-08)

12.	Fully endorsed STD 400 face sheet and Final Regulation Order as
approved by OAL and filed with the Secretary of State July 17, 2009, for
amendment of title 13, California Code of Regulations, sections 2111,
2112, and Appendix A, 2139, 2147,  2440, 2441, 2442, 2443.1, 2443.2,
2443.3, 2444.1, 2444.2, and 2445, and repeal of Section 2448  and
amendments to the following documents incorporated by reference in
Section 2447, 13 CCR: “California Exhaust Emission Standards and Test
Procedures for 2001 Model Year and Later Spark-Ignition Marine
Engines,” as last amended September 22, 2006, and in Section 2474, 13
CCR: “Procedures for Exemption of Add-On and Modified Parts for
Off-Road Categories,” as adopted July 14, 2000. (Enclosure 12 STD 400
incl Regs and Proc)

 

13.	Office of Administrative Law Approval Notice, July 21, 2009.
(Enclosure 13 OAL Notice) 

14.      CARB Board Resolution 98-63, dated December 10, 1998.
(Enclosure 14 Final Resolution 98-63) 

CARB Contacts

Technical questions or requests for additional technical information on
this item should be directed to Ron Haste, Emission Research and
Regulation Development Branch, Off-Road Control Section, at (626)
575-6676 or   HYPERLINK "mailto:rhaste@arb.ca.gov"  rhaste@arb.ca.gov .
Legal questions should be directed to Lisa Brown, Senior Staff Counsel,
at (916) 324-2132.

 The specific regulatory text enacted by the 2008 Amendments are set
forth in title 13, 

California Code of  Regulations (CCR), sections 2111, 2112, Appendix A
therein, 2139, 2147, 2440, 2441, 2442, 2443.1, 2443.2, 2443.3, 2444.1,
2444.2,  2445.1, 2445.2, 2447, 2474 and 2448 

(Enclosure 9).

 72 Fed.Reg.14546 (March 28, 2007).

 76 Fed.Reg. 24872 (May 3, 2011).

 72 Fed. Reg. 14546 (March 28, 2007).

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

 Id., 69674.

 76 Fed.Reg. 77515, 77519 (December 13, 2011).

 Final 209(e) Rule, 59 Fed. Reg. 36969, 36983; See 36 Fed.Reg. 17158
(August 21, 1971); 40 

Fed.Reg. 23102, 23103 (May 28, 1975).

 40 Fed.Reg. 23102, 23104.  See also 58 Fed.Reg. 4166, Decision
Document, at p. 64.

 Motor and Equipment Manufacturers Association v. EPA (D.C. Cir. 1979)
627 F.2d 1095, 1121.

 See, e.g., 51 Fed.Reg. 12391 (April 10, 1986), 65 Fed.Reg. 69673, 69674
(November 20, 2000) and 

Decision Document for California Nonroad Engine Regulations Amendments,
Dockets A-2000-05 to 08, entry V-B, p. 28.

 61 Fed.Reg. 53371 (October 11, 1996), Waiver Decision, p. 20.  

 CARB Resolution 98-63, Enclosure 14.

 72 Fed. Reg. 14546 (March 28, 2007).

 Executive Order R-09-004 (June 9, 2009), Enclosure 8.

 See CAA section 213.

 See 59 Fed. Reg. 36983 (July 20, 1994) and 61 Fed.Reg. 53371, 53372
(October 11, 1996); 

Decision Document at p.2 (OBD II Waiver Decision).

 Id., referencing S. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965);
H.R. Rep. No. 728, 90th Cong., 1st Sess. 23 (1967), U.S. Code Cong. &
Admin. News 1967, p. 1938; see also 74 Fed.Reg. 3030 

(January 16, 2009), Decision Document at p. 49.

 CARB Board Resolution 08-36, Reference 5; California State Motor
Vehicle Pollution Control Standards; Waiver of Federal
Preemption–Notice of Waiver Decision and Within-the-scope
Determinations, 64 Fed.Reg. 42689, 42690 (August 5, 1999).

 Final 209(e) Rule, 59 Fed.Reg. at 36982.  The Administrator has
recognized that even if such a standard by standard test were applied to
California, it "would not be applicable to its fullest stringency due to
the degree of discretion given to California in dealing with its mobile
source pollution problems."  (41 Fed.Reg. 44209, 44213, (October 7,
1976); 49 Fed.Reg. 18887, 18892 (May 3, 1984).)

 American Trucking Associations, Inc. v. E.P.A., (2010) 600 F.3d 624. 

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

  Id.

 California Air Resources Board, Proposed Amendments to California
Exhaust and Evaporative Emission Standards and Test Procedures for
Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, September
18, 1998.

 California Air Resources Board, Public Hearing to Consider the Adoption
of Exhaust and Evaporative Emission Control Requirements for Small
Off-Road Equipment and Engines Less Than or Equal To 19 kW, August 8,
2003.

 United States Environmental Protection Agency, Control of Emissions
from Marine SI and Small SI Engines, Vessels, and Equipment, Draft
Regulatory Impact Analysis, April 2007.

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