California State Nonroad Engine
Pollution Control Standards;
Commercial Harbor Craft Regulations
Decision Document
rnA United States
Environmental Protection
Agency
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California State Nonroad Engine
Pollution Control Standards;
Commercial Harbor Craft Regulations
Decision Document
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
United States
Environmental Protection
Agency
EPA-420-R-25-002
January 2025
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EPA-420-R-25-002; January 2025
California State Nonroad Engine Pollution Control Standards; Commercial Harbor Craft
Regulations; Decision Document
On March 19, 2023, the Environmental Protection Agency (EPA) published a Federal
Register notice announcing its receipt of the California Air Resources Board's (CARB)
authorization request for amendments adopted in 2022 to its Commercial Harbor Craft (CHC)
regulation (the 2022 CHC Amendments).1 In its notice, EPA invited public comment on
California's authorization request and provided an opportunity to request a public hearing. EPA
opened a docket for the authorization request at EPA-HQ-OAR-2023-0153. In response to public
request, EPA announced that it would hold a public hearing on June 1, 2023,2 and the transcript
for the hearing is included in the docket. The comment period for the authorization request
closed on July 1, 2023.
In this Decision Document, EPA is taking final action to grant a partial authorization for
the 2022 CHC Amendments, pursuant to section 209(e) of the Clean Air Act (CAA).3 EPA is
also providing notice of the availability of this Decision Document in the Federal Register. As
explained in Section V, EPA is granting California authorization to enforce the 2022 CHC
Amendments with the following exceptions: (a) EPA is not at this time taking any action on the
Zero-Emission and Advanced Technologies (ZEAT) standards for in-use short run ferries; and
(b) EPA is not at this time taking any action on the standards for in-use engines and vessels
(excluding commercial fishing vessels) that would apply after the expiration of the feasibility
extensions when an engine or diesel particulate filter (DPF) is not feasible and the owner cannot
1 88 FR 16439 (March 17, 2023).
2 88 FR 25636 (April 27, 2023).
3 This Decision Document can be found in the public docket at regulations.gov at EPA-HQ-OAR-2023-0153.
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afford vessel replacement ("E3" extensions). Nonetheless, California is authorized to enforce
provisions related to CARB Verified Diesel Emission Control Strategy (VDECS) technology
that is installed on any in-use vessel at any time.
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Table of Contents
I. Background
II. Principles Governing This Review
A. Clean Air Act Nonroad Engine and Vehicle Authorizations
B. Deference to California
C. Burden and Standard of Proof
D. EPA's Administrative Process in Consideration of California's Request
III. Response to Comments Regarding the Authorization Criteria
A. First Authorization Criterion
B. Second Authorization Criterion
C. Third Authorization Criterion
IV. Other Issues
V. Decision
VI. Statutory and Executive Order Reviews
I. Background
CARB first adopted the Commercial Harbor Craft (CHC) regulation on September 2,
2008, and EPA granted California an authorization for that regulation in 2011.4 The initial
regulation established emission standards and other emissions-related requirements applicable to
both new and in-use diesel propulsion and auxiliary engines on commercial harbor craft that
operate within Regulated California Waters (RCW).5 As set out in Section 93118.5(e) of the
2008 regulation, the standards applied to new harbor craft, including ferries, and existing harbor
craft, including in-use ferries, excursion vessels, tugboats, towboats, push boats, and multi-
4 76 FR 77521 (Dec. 13,2011).
5 Regulated California Waters include all California inland waters, all California estuarine waters, and all waters
within a zone 24 nautical miles seaward of the California coastline, except for specified areas along the Southern
California coastline. Cal. Code Regs, title 17, § 93118.5(d).
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purpose craft.6 Propulsion and auxiliary engines on new CHC were required to be certified to the
most stringent federal new marine engine emission standards applicable (generally EPA Tier 2
through Tier 4 marine engine emission standards).7 New ferry vessels capable of transporting 75
or more passengers were required to be equipped with propulsion engines certified to either Tier
4 marine engine standards, or with engines certified to Tier 2 or Tier 3 marine engine standards
and also be equipped with the best available control technology (BACT) to reduce emissions of
oxides of nitrogen (NOx) or particulate matter (PM) to the greatest extent feasible. New and in-
use engines for in-use harbor craft were required to be certified to at least federal Tier 2 or Tier 3
marine emission standards, and in-use Tier 0 and Tier 1 propulsion and auxiliary marine engines
in specified categories of in-use CHC—ferries, excursion vessels, tugboats, and towboats—were
generally required to demonstrate compliance with Tier 2 or Tier 3 standards by specified
compliance dates. In turn, these dates were based on both the model year and hours of operation
of the in-use engines. In-use CHC with home ports in the South Coast Air Basin were subject to
accelerated compliance schedules. CHC owners or operators could comply with the in-use
requirements by replacing an in-use engine with a new engine, or by demonstrating that an
existing engine complied with the applicable Tier 2 or Tier 3 standards (e.g., through utilization
of engine rebuild kits or aftertreatment technologies), or by demonstrating that their CHC would
not operate more than 300 hours in a year. Owners or operators of CHC were also required to
install a non-resettable hour meter on each engine, to report certain information including contact
information, vessel and engine information, annual hours operated and locations to CARB, and
6 "Multi-purpose harbor craft" was defined as a harbor craft that serves as a ferry, excursion vessel, tugboat, or
towboat but is also used as a work, crew and supply, pilot, fishing, supply, or other vessel. Cal. Code Regs, title 17,
§ 93118.5(b)(45) (subsequently amended). See Final Regulation Order Approved by OAL effective November 19,
2008.
7 See 40 CFR part 1042; 73 FR 37243 (June 30, 2008).
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to only fuel diesel engines in CHC vessels with CARB diesel fuel or specified alternative diesel
fuels.
On April 11, 2011, CARB adopted amendments to its CHC regulation (the 2011
Amendments). The 2011 Amendments primarily allowed CARB or EPA Tier 2 or higher
certified off-road (nonroad)8 engines to be used as auxiliary or propulsion engines in both new
and in-use CHC vessels and expanded the in-use requirements to three additional vessel
categories of CHC: crew and supply, barge, and dredge vessels, and removed the category
"multipurpose harbor craft" from the regulation. In 2017, EPA granted CARB an authorization
for certain elements of the 2011 Amendments to the CHC regulation and confirmed that other
elements of the Amendments were within the scope of the previously granted authorization for
CHC.9
On January 31, 2023, CARB submitted a new authorization request to EPA for additional
amendments to the CHC regulation that EPA previously authorized in the two actions noted
above.10 Also noted above, EPA announced a public comment period and an opportunity for
public hearing on March 19, 2023, and, in response to public request, EPA held a hearing on
June 1, 2023, and accepted comments until July 1, 2023.
The 2022 CHC Amendments revise the emission standards and other emissions-related
requirements applicable to both new and in-use diesel propulsion and auxiliary engines on CHC
that operate within RCW and extend the requirements to additional categories of CHC: pilot
boats, push boats, workboats, research vessels, commercial passenger fishing vessels (CPFV),
8 The engines and equipment referred to by California as "off-road" are the same as those referred to by EPA as
"nonroad." In this document, "off-road" and "nonroad" refer to the same engines and vehicles and are used
interchangeably but reflect different official terminology used by CARB and EPA, respectively.
9 82 FR 6500 (Jan. 19, 2017).
10 CARB's CHC Authorization Request (CHC Authorization Support Document), EPA-HQ-OAR-2023-0153-0004.
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commercial fishing vessels, and temporary replacement vessels, as well as tank barges under 400
feet and 10,000 gross tons (GT).11
The 2022 CHC Amendments create new emission standards and compliance dates that
are different depending on vessel category and, for existing vessels, engine model year. The
amendments include ZEAT requirements for new and in-use ferries and new excursion vessels
and phase in beginning December 31, 2024.12 The owners of these boats are also subject to an
infrastructure requirement.13
For other harbor craft,14 both new and existing, the 2022 CHC Amendments set engine
requirements that are equivalent in stringency to: (1) the most stringent federal marine engine
standard (federal Tier 3 or Tier 4 marine engine standards) or California or federal off-road
engine standards (California or federal Final Tier 4 off-road engine standards) that were in effect
at the time any of the aforementioned actions occur and that are applicable to new engines with
the same power ratings and displacements as the subject propulsion and auxiliary engines, and
(2) reflect the addition of a "level 3" CARB Verified Diesel Emission Control Strategy
(VDECS), such as a verified DPF. The exception is for engines on existing commercial fishing
vessels, which are subject to less stringent emission standards.15 The compliance dates for new
vessels are a function of the date the vessel is built.16 For existing vessels, the compliance dates
11 The 2022 CHC Amendments also include a fuel-related requirement; this is an operational regulation not
preempted by CAA section 209. See Section III.3.B.
12 California Code of Regulations, Section 93118.5(e)(10).
13 California Code of Regulations, Section 93118.5(i).
14 ""Harbor Craft" means any private, commercial, government, or military marine vessel including passenger
ferries, excursion vessels, tugboats, ocean-going tugboats, towboats, push-boats, crew and supply vessels, work
boats, pilot vessels, supply boats, fishing vessels, research vessels, barge and dredge vessels, commercial passenger
fishing vessels, oil spill response vessels, U.S. Coast Guard vessels, hovercraft, emergency response harbor craft,
and barge vessels that do not otherwise meet the definition of ocean-going vessels or recreational vessels."
California Code of Regulations, Section 93118.5(d).
15 California Code of Regulations, Section 93118.5(e)(13).
16 California Code of Regulations, Section 93118.5(e)(8) and (9).
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are a function of the engine model year;17 after that date a non-compliant vessel may no longer
be operated in the regulated waters of California.
The new requirements rely on the use of EPA-certified Tier 3 or Tier 4 engines, equipped
with a DPF and, for short-run ferries and excursion vessels, ZEAT. CARB's CHC Authorization
Support Document and other materials describe how these standards are technologically feasible.
However, CARB acknowledged that no DPFs have been certified for marine applications yet.
Given this, CARB allows regulated entities to seek compliance extensions, which are available
for the ZEAT and related infrastructure requirements18 and the existing vessel requirements.19 A
vessel owner may apply for and receive approval for a compliance extension. There are five
extensions available, as follows:
• Extension type 1 (El) Shore power and ZEAT infrastructure delays: one year; can be
renewed once;
• Extension type 2 (E2) No certified engines or DPFs available: two-years; unlimited
renewals;20
• Extension type 3 (E3) Engines or DPFs not feasible and owner cannot afford vessel
replacement: two years; can be renewed; cannot exceed 6-8 years (depending on
vessel type), when combined with other extensions, or extend past December 31,
2034;21
17 California Code of Regulations, Section 93118.5(e)(12).
18 California Code of Regulations, Sections 93118.5(e)(10) and (i).
19 California Code of Regulations, Section 93118.5(e)(12) and (13).
20 As a condition of receiving this extension, the engine must meet the most stringent Federal marine engine
standards (Tier 3 or Tier 4) or California or Federal Tier 4 Final off-road standards plus a level 3 verified DPF
within 6 months of one becoming available for the engine installed on the vessel. California Code of Regulations,
Section 93118.5(e)(12)(E)(2)(d).
21 Commercial passenger fishing vessels may obtain one ten-year extension under (E3). California Code of
Regulations, Section 93118.5(e)(12)(E)(3)(a).
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• Extension type 4 (E4) Tier 4 engines with limited operating hours and DPFs not
feasible: two years; unlimited renewals; and
• Extension type 5 (E5) Scheduling extension: one year; unlimited renewals.22
For new vessels, this means that beginning January 1, 2023, each engine in a regulated
category must meet the most stringent federal marine engine standards (Tier 3 or Tier 4) or
California or federal Tier 4 Final off-road standards plus a level 3 verified DPF. If no DPF is
available, the vessel should be designed to install one once a DPF becomes available. In the
meantime, once the ship goes into service, it becomes an existing vessel with respect to the DPF
requirement and would be eligible for an E2 availability extension followed by a scheduling
extension, if necessary. For existing vessels, each engine on any ship in a regulated category
must meet the most stringent federal marine engine standards (Tier 3 or Tier 4) or California or
federal Tier 4 Final off-road standards plus a level 3 verified DPF by the relevant compliance date,
as adjusted by the relevant extensions. Once the feasibility extensions expire, the vessels with
noncompliant engines may no longer be used on RCW. The owner then has the choice of
replacing the vessel or ceasing operation in California.
II. Principles Governing This Review
A. Clean Air Act NonroadEngine and Vehicle Authorizations
CAA section 209(e)(1) prohibits states and local governments from adopting or
attempting to enforce any standard or requirement relating to the control of emissions from
certain new nonroad vehicles or engines.23 The CAA also preempts states from adopting and
22 California Code of Regulations, Section 93118.5(e)(12)(E).
23 CAA section 209(e)(1) prohibits states or any political subdivision from adopting or enforcing any standard or
other requirement relating to the control of emissions from new engines which are used in construction equipment or
vehicles or used in farm equipment or vehicles, and which are smaller than 175 horsepower, or new locomotives or
new engines used in locomotives. See 40 CFR section 1074.10(a).
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enforcing standards and other requirements related to the control of emissions from all other
nonroad engines (including "non-new" engines) or vehicles.24 CAA section 209(e)(2)(A),
however, requires EPA, after notice and opportunity for public hearing, to authorize California to
adopt and enforce standards and other requirements relating to the control of emissions from
such vehicles or engines not preempted by CAA section 209(e)(1) if California determines that
California standards will be, in the aggregate, at least as protective of public health and welfare
as applicable Federal standards. However, EPA shall not grant such authorization if it finds that
(1) the protectiveness determination of California {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) California standards and accompanying enforcement procedures are not
consistent with CAA section 209.
On July 20, 1994, EPA promulgated a rule (the 1994 rule) that sets forth, among other
things, regulations providing the criteria, as found in CAA section 209(e)(2), which EPA must
consider before granting any California authorization request for new nonroad engine or vehicle
emission standards.25 EPA revised these regulations in 1997.26
24 See CAA section 209(e)(2), 42 U.S.C. 7543(e). See 40 CFR section 1074(b). States and localities are categorically
prohibited from regulating the control of emissions from new nonroad vehicles and engines set forth in section
209(e)(1) of the CAA, but "all other" nonroad vehicles and engines (including non-new engines and vehicles
otherwise noted in 209(e)(1) and all other new and non-new nonroad engines and vehicles) are preempted unless and
until preemption is waived. See EPA's nonroad preemption rulemakings at 59 FR 36969 (1994)) and revised in 1997
(62 FR 67733). EPA notes that Appendix A to 40 CFR Part 1074, Subpart A sets out EPA's interpretation of what
types of state nonroad engine use and operation provisions are not preempted by section 209.
25' 'Air Pollution Control; Preemption of State Regulation for Nonroad Engine and Vehicle Standards," 59 FR
36969 (July 20, 1994).
26 See "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, Part
1074.
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As stated in the preamble to the 1994 rule, EPA historically has interpreted the CAA
section 209(e)(2)(A)(iii) "consistent with section 209" inquiry to require that California
standards and enforcement procedures be consistent with CAA sections 209(a), 209(e)(1), and
209(b)(1)(C).27 In order to be consistent with CAA 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 CAA 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 CAA section 209(b)(1)(C), EPA
typically reviews nonroad authorization requests under the same "consistency" criteria that are
applied to motor vehicle waiver requests. Pursuant to CAA section 209(b)(1)(C), the
Administrator shall not grant California a motor vehicle waiver if he finds that California
"standards and accompanying enforcement procedures are not consistent with section 202(a)" of
the CAA. Previous decisions granting waivers and authorizations have noted that state standards
and enforcement procedures are inconsistent with CAA 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.28 When considering whether to grant
authorizations for accompanying enforcement procedures tied to standards (such as record
keeping and labeling requirements) for which an authorization has already been granted, EPA
has evaluated (1) 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
27 59 FR 36982-83.
28 Id. See also 78 FR 58090, 58092 (Sept. 20, 2013).
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applicable Federal standards, and (2) whether the Federal and California enforcement procedures
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are consistent.
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).30 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),31 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.32
29 See Motor & Equipment Manufacturers Association v. Environmental Protection Agency ('MEMA 7"), 627 F.2d
1095, 1112 (D.C. Cir. 1979). California certification test procedures need not be identical to the Federal test
procedures to be "consistent." California procedures would be inconsistent, however, if manufacturers would be
unable to meet both the state and Federal test requirements with the same test vehicle in the course of the same test.
See, e.g., 43 FR 32182, (July 25, 1978).
30 See Engine Manufacturers Association v. EPA, 88 F.3d 1075, 1087 (D.C. Cir. 1996).
31 59 FR at 36983 a 12.
32 "Waiver of Application of Clean Air Act to California State Standards," 36 FR 17458 (Aug. 31, 1971). Note that
the more stringent standard expressed here, in 1971, was superseded by the 1977 amendments to section 209, which
established that California must determine that its standards are, in the aggregate, at least as protective of public
health and welfare as applicable Federal standards. In the 1990 amendments to section 209, Congress established
section 209(e) and similar language in section 209(e)(l)(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.
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This principle of narrow EPA review has been upheld by the U.S. Court of Appeals for the
District of Columbia Circuit.33 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).
B. Deference to California
In previous waiver and authorization decisions, EPA has recognized that the intent of
Congress in creating a limited review based on specifically listed criteria was to ensure that the
Federal government did not second-guess state policy choices. As the Agency explained in a
prior waiver decision:
It is worth noting ... I would feel constrained to approve a California approach to
the problem which I might also feel unable to adopt at the federal level in my own
capacity as a regulator. The whole approach of the Clean Air Act is to force the
development of new types of emission control technology where that is needed by
compelling the industry to "catch up" to some degree with newly promulgated
standards. Such an approach . . . may be attended with costs, in the shape of
reduced product offering, or price or fuel economy penalties, and by risks that a
wider number of vehicle classes may not be able to complete their development
work in time. Since a balancing of these risks and costs against the potential
benefits from reduced emissions is a central policy decision for any regulatory
agency under the statutory scheme outlined above, I believe I am required to give
very substantial deference to California's judgments on this score.34
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.35
This interpretation is supported by relevant discussion in the House Committee Report
for the 1977 Amendments to the CAA. Congress had the opportunity through the 1977
33 See, e.g., MEMA /, 627 F.2d at 1119.
34 See. "California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption," 40 FR 23102,
23103-23104 (May 28, 1975).
35 Id.
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Amendments to restrict the preexisting waiver provision but elected instead to expand
California's flexibility to adopt a complete program of motor vehicle emission controls. The
report explains that the amendment is intended to ratify and strengthen the preexisting California
waiver provision and to affirm the underlying intent of that provision, that is, to afford California
the broadest possible discretion in selecting the best means to protect the health of its citizens
and the public welfare.36
C. Burden and Standard of Proof
As the U.S. Court of Appeals for the D.C. Circuit made clear in MEMA /, opponents of
the waiver or authorization request by California bear the burden of showing that the statutory
criteria for a denial of the request have been met:
The language of the statute and its legislative history indicate that California's
regulations, and California's determinations that they 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.37
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 or authorization 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.'"38
Therefore, the Administrator's burden is to act "reasonably."39
36 MEMA /, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977)).
37 MEMA /, 627 F.2d at 1121.
38 Id. at 1126.
39 Id.
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With regard to the standard of proof, the court in MEMAI explained that the
Administrator's role in a CAA 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.40
In that decision, the court considered the standard of proof under CAA 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 CAA 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."41
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
procedures undermine the protectiveness of California's standards.42 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.43
40 Id. at 1122.
41 Id.
42 Id.
43 Id.
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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 standard of proof under CAA section 209 concerning a
waiver request for "standards," as compared to 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
"44
narrow one.
I). EPA's Administrative Process in Consideration of California's Request
On March 19, 2023, EPA issued a notice for comment regarding CARB's authorization
request for the 2022 CHC Amendments.45 The notice requested the public provide EPA with
comment on issues relevant to EPA's consideration of the request along with an opportunity to
request a public hearing. EPA did receive a request for public hearing on the 2022 CHC
Amendments and subsequently announced a hearing date of June 1, 2023, and extended the
comment period associated with that request to July 1, 2023.46
EPA requested comment on the 2022 CHC Amendments, and whether they meet the
criteria for a full authorization. Specifically, EPA requested public comment on: (a) whether
44 80 FR 76468, 76471 (December 9, 2015).
45 See "California State Nonroad Engine Pollution Control Standards; Ocean-Going Vessels At-Berth and
Commercial Harbor Craft; Requests for Authorization; Opportunity for Public Hearing and Comment" 88 FR 16439
(March 17, 2023).
46 88 FR 25636, April 27, 2023; this hearing was for only the 2022 CHC Amendments and did not include the 2020
At-Berth amendments.
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CARB's determination that its standards, in the aggregate, are at least as protective of public
health and welfare as applicable federal standards is arbitrary and capricious, (b) whether
California needs such standards to meet compelling and extraordinary conditions, and (c)
whether California's standards and accompanying enforcement procedures are consistent with
section 209 of the Act.47
EPA received written comments from health and environmental organizations, industry,
manufacturers and end users, and individuals, all of which can be found, along with a transcript
of the public hearing including all oral testimonies provided, in the public docket.48 EPA
addresses these comments below.
III. Response to Comments Regarding the Authorization Criteria
47 Id.
48 All American Marine, Inc. (AAM), EPA-HQ-OAR-2023-0153-0019; American Lung Association, EPA-HQ-
OAR-2023-0153-0026; American Waterways Operators (AWO), EPA-HQ-OAR-2023-0153-0043; American
Waterways Operators (AWO), EPA-HQ-OAR-2023-0153-0055; American Waterways Operators et al., EPA-HQ-
OAR-2023-0153-0018; AMNAV Maritime, EPA-HQ-OAR-2023-0153-0047; Angel Island Tiburon Ferry Inc.,
EPA-HQ-OAR-2023-0153-0056; Anita Youabian, EPA-HQ-OAR-2023-0153-0064; Ann Harvey, EPA-HQ-0 AR-
2023-0153-0025; Anonymous public comment, EPA-HQ-OAR-2023-0153-0053; Bay delta Maritime, EPA-HQ-
OAR-2023-0153-0011; Baydelta Maritime, EPA-HQ-OAR-2023-0153-0014; Baydelta Maritime, EPA-HQ-0 AR-
2023-0153-0049; Big Sky Grant Associates, LLC, EPA-HQ-OAR-2023-0153-0017; Centerline Logistics
Corporation, EPA-HQ-OAR-2023-0153-0012; Centerline Logistics Corporation, EPA-HQ-OAR-2023-0153-0046;
Conshelf Services, EPA-HQ-OAR-2023-0153-0040; Crowley Maritime Corporation, EPA-HQ-0 AR-2023-0153-
0052; Cruise Lines International Association (CLIA), EPA-HQ-OAR-2023-0153-0032; Curtin Maritime Corp.,
EPA-HQ-OAR-2023-0153-0051; Earthjustice et al., EPA-HQ-OAR-2023-0153-0044; Earthjustice et al., EPA-HQ-
OAR-2023-0153-0061; EV Maritime, EPA-HQ-OAR-2023-0153-0059; Green Yachts, EPA-HQ-0 AR-2023-0153-
0058; Ian Brothers, EPA-HQ-OAR-2023-0153-0016; International Organization of Masters, and Mates & Pilots
(MMP) et al., EPA-HQ-OAR-2023-0153-0037; Island Packers Cruises, EPA-HQ-OAR-2023-0153-0031; Jacobsen
Pilot Service, Inc., EPA-HQ-OAR-2023-0153-0030; Kiiby Offshore Marine, LLC, EPA-HQ-0 AR-2023-0153-
0038; North Tahoe Cruises Tahoe Gal, EPA-HQ-OAR-2023-0153-0057; Ocean Conservancy, EPA-HQ-0 AR-2023-
0153-0033; Passenger Vessel Association (PVA), EPA-HQ-0AR-2023-0153-0015; Passenger Vessel Association
(PVA), EPA-HQ-0AR-2023-0153-0048; RE. Staite Engineering, Inc. (RES), EPA-HQ-0AR-2023-0153-0039;
Saltchuk Marine, EPA-HQ-OAR-2023-0153-0010; Saltchuk Marine, EPA-HQ-0AR-2023-0153-0028; Sam Reed,
EPA-HQ-0AR-2023-0153-0024; San Diego Working Waterfront, EPA-HQ-0AR-2023-0153-0034; San Francisco
Bar Pilots Association, EPA-HQ-0AR-2023-0153-0045; Seabulk, EPA-HQ-0AR-2023-0153-0036; Shaver
Transportation Company, EPA-HQ-OAR-2023-0153-0042; Starlight Marine Services LLC, EPA-HQ-0 AR-2023-
0153-0009; Suzanne Hume, EPA-HQ-0AR-2023-0153-0065; The American Waterways Operators (AWO), EPA-
HQ-0 AR-2023-0153-0007; The Vane Brothers Company, EPA-HQ-0AR-2023-0153-0027; Truck and Engine
Manufacturers Association, EPA-HQ-0AR-2023-0153-0035; Vane Brothers Company, EPA-HQ-OAR-2023-0153-
0050; Vane Line Bunkering Inc., EPA-HQ-0 AR-2023-0153-0008; Westar Marine Services, EPA-HQ-0 AR-2023-
0153-0013; Westar Marine Services, EPA-HQ-0AR-2023-0153-0041; Wind Wing Technologies, Inc., EPA-HQ-
OAR-2023 -0153 -0060; Zoe Edington, EPA-HQ-OAR-2023-0153-0063.
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In this section, EPA addresses the comments received with respect to the three
authorization criteria.
A. First Authorization Criterion
CAA section 209(e)(2)(A)(i) instructs that EPA cannot grant an authorization if the
Agency finds that California was arbitrary and capricious in its determination that its standards
will be, in the aggregate, at least as protective of public health and welfare as applicable Federal
standards.
EPA's evaluation of this first authorization prong is performed under the construct
explained here. CAA section 209(e)(2)(A)(i) requires EPA to grant an authorization unless the
Administrator finds that California has been arbitrary and capricious in its determination that its
State standards will be, in the aggregate, at least as protective of public health and welfare as
applicable Federal standards. EPA may not disregard California's determination unless there is
"clear and compelling evidence" to the contrary.49 Moreover, "[t]he language of the statute and
its legislative history indicate that California's regulations, and California's determination that
they comply with the statute, when presented to the Administrator are presumed to satisfy the
waiver requirements."50 Additionally, "the parties opposing the waiver request bear the burden of
persuading the Administrator that the waiver request should be denied."51
CARB states that as with standards for new on-road motor vehicles and engines,
California evaluates the protectiveness of its nonroad standards "in the aggregate," assessing
whether the State's standards, as a whole regulatory program, are at least as protective as EPA's
standards.52 CARB notes that this protectiveness assessment also takes place against the
49 MEMA I, 627 F.2d 1095, 1121-22 (D.C. Cir. 1979).
50 Id; see also Ford Motor Co. v. EPA, 606 F.2d 1293, 1297 (D.C. Cir. 1979).
51 MEMA /, 627 F.2d at 1121.
52 CHC Authorization Support Document at 25. EPA-HQ-OAR-2023-0153-0004.
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backdrop of prior nonroad authorizations granted for which California determined, and EPA
affirmed, that California's existing nonroad emissions program is at least as protective as
EPA's.53
CARB states in its CHC Authorization Support Document that, in adopting the 2022
CHC Amendments, CARB's Board approved Resolution 22-6, in which it expressly declared,
"the Board hereby determines that the amended regulations adopted herein will not cause
California's off-road engine emission standards, in the aggregate, to be less protective of public
health and welfare than applicable federal standards."54 CARB states in their CHC Authorization
Support Document that there is no basis for EPA to find the Board's determination is arbitrary
and capricious since (1) its threshold requirement for new and newly-acquired in-use harbor craft
and new and newly-acquired in-use engines acquired for in-use harbor craft is to certify to
federal Tier 3 or Tier 4 marine engine emission standards (or California Final Tier 4 off-road
engine standards applicable to such engines)—these standards are identical to the federal
standards applicable to new marine and off-road engine standards; and (2) its remaining
requirements, including DPF-equivalent emission performance, methane limits, use of ZEAT in
short-run ferries and excursion vessels, are both individually and collectively more stringent than
comparable federal standards, because there are no comparable federal standards.55
In evaluating CARB's authorization request under the first prong, EPA is following its
traditional practice, which represents the best reading of the statute. This approach begins by
53 Id. EPA notes that its recently granted nonroad authorization confirmed the approach of determining whether
CARB's nonroad amendments undermine California's previous determination that its standards and accompanying
enforcement procedures, in the aggregate, are at least as protective of public health and welfare as applicable federal
standards. 88 FR 24411, 24414 (April 20, 2023).
54 CARB, Resolution 22-6, March 24, 2022 (quoted in CHC Authorization Support Document at 25).
https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2021/chc2021/reso22-6chc.pdf. accessed December 18, 2024.
55 CHC Authorization Support Document at 25-26, citing CAA section 213 (EPA's authority to set nonroad
emission standards for new nonroad engines and vehicles) and Engine Manufacturers Association v. EPA, 88 F.3d
1075 (D.C. Cir 1996) ("£M4").
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comparing the stringency of the specific standards that CARB has submitted for authorization
with the relevant federal standards. If each CARB standard is more stringent than the relevant
federal standards, then the first authorization criterion is satisfied. In addition, in the event that it
appears that a specific California standard may be less stringent than an applicable federal
standard, then EPA will evaluate whether California's standards as a whole are 'in the
aggregate" as protective of public health and welfare as applicable federal standards for nonroad
vehicles and engines. In that circumstance, even if the standards in question are less stringent
than the relevant federal standards, so long as California's nonroad standards, in the aggregate,
are more stringent than the federal standards, the first authorization criteria is satisfied.
No evidence was submitted to support an argument that the stringency of CARB's CHC
regulation is numerically less stringent than the applicable EPA standard. EPA does not have the
authority to regulate in-use CHC under its regulatory authority set forth in section 213 of the
CAA, therefore any regulation by CARB reducing emissions from in-use vessels is by definition
more stringent than non-existent applicable federal standards. Where federal standards do exist
for new vessels and engines, CARB's standards use federally-defined engine tiers and are
therefore equivalent in stringency.56 Therefore, EPA cannot find that CARB was arbitrary and
capricious in its protectiveness determination and cannot deny CARB's authorization request
based on a finding under CAA section 209(e)(2)(A)(i).
Two commenters stated that the 2022 CHC Amendments would cause adverse
environmental impacts.57 One commenter stated that the amendments would effectively bar
operation of their ocean-going vessel (OGV) articulated tug barges (ATBs) from operating in
56 See 40 CFR part 1042.
57 Crowley Maritime Corporation ("Crowley"), EPA-HQ-OAR-2023-0153-0052; Island Packers Cruises, EPA-HQ-
O AR-2023 -0153-0031.
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California, requiring alternate methods of transporting petroleum products, all of which they
claim are "dirtier" than OGV-ATBs.58 The other commenter claimed that the cost of complying
with the amendments would prevent innovation in emissions reduction from occurring.59 They
further claimed that they would need to install larger diesel auxiliary power units than they
currently operate to support the power required by DPF active regeneration, in turn causing
increased emissions compared to replacing current auxiliary diesel engines with batteries.
As noted above, EPA's scope of review of CARB's authorization request is narrow and is
limited to the criteria in CAA section 209(e)(2)(A). As explained below, commenters have not
submitted information or data showing CARB's standards, whether alone or in the aggregate, to
be less protective than applicable federal standards. EPA does not consider California's policy
choices as to how it achieves emissions reductions, as long as its choice satisfies the "in the
aggregate" criteria set forth in section 209(e)(2)(A).60
EPA notes that the commenters here did not provide record evidence to substantiate their
claims, and even if such evidence is implicit or otherwise exists within the claims, CARB has
reasonably addressed the claims. Regarding ATBs, CARB identified multiple operational
similarities to other CHC vessels, yet extended flexibility for their emission control compliance
through a CARB-approved Alternative Control of Emissions (ACE) plan that allows operators to
opt to use certain equipment or shore power to control barge emissions while at berth.61 The
claim that these vessels are therefore barred from operation is unsubstantiated, as is the claim
that the products carried by these vessels would shift to other conveyances, let alone whether
58 Crowley.
59 Island Packers Cruises.
60 See also Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 207, 91 Stat. 685; Motor Vehicle Mfrs. Ass'n
of U.S., Inc. v. New York State Dep't ofEnv't Conservation, 17 F.3d 521, 525 (2d Cir. 1994).
61 Staff Report, Initial Statement of Reasons, Date of Release September 21, 2021 ("CARB ISOR") at 1-6-7; see
CHC Authorization Support Document at 17-18.
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such other paths involve higher emissions burdens or would undermine CARB's "in the
aggregate" protectiveness finding.
Similarly, whether a speculative potential for installing batteries is replaced by the need
to install auxiliary engines to power DPF regeneration does not undermine that finding. CARB
considered DPF operating temperature requirements62 and effects on emissions.63 Meanwhile,
the commenter did not claim to have an acquisition process underway to replace current auxiliary
engines with battery systems. Nor did the commenter demonstrate that, even if these claims were
correct, that the claimed need for auxiliary engines sufficiently increases emissions to undermine
CARB's protectiveness determination in the aggregate. Since there was no pre-existing
requirement for the installation of batteries on relevant vessels, CARB's analysis and policy
choices are not offset by the commenter's hypothetical alternative.
EPA also received comments that questioned whether CARB adequately justified the
available emissions reductions from the 2022 CHC Amendments in its protectiveness
determination. Two commenters claimed flaws in CARB's emission inventory, calling for third-
party verification.64 Other commenters went further and specifically questioned the towing vessel
inventory used by CARB, claiming that the count was too high. Two such commenters cited an
independent study by Ramboll that had reduced inventory based on automatic identification
system ("AIS") data.65 These commenters claimed that this data showed that "non-reporting"
62 See id. at 1-34-35; Response to Comments on the Draft Environmental Analysis released March 14, 2022
("CARB Response to Comments") at 47-48.
63 CARB ISOR app. D-l at D-73-74 (noting that "[p]ost-combustion technologies such [sic] DPFs tend to slightly
increase GHG emissions due to increased fuel or power use .. . However, DPFs also remove black carbon, a
component of DPM [diesel particulate matter] and a short-lived climate pollutant").
64 Island Packers Cruises; Kirby Offshore Marine LLC ("Kirby"), EPA-HQ-OAR-2023-0153-0038.
65 American Waterways Association ("AWO"), EPA-HQ-OAR-2023-0153-0043 and -0055; Curtin Maritime, EPA-
HQ-0 AR-2023 -0153-0051.
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vessels account for a smaller percentage of the total operating hours assumed by CARB. Another
two commenters cited their own data for inventory discrepancies.66
CARB noted that while "AIS is generally a good indicator of where vessels operate," it
contains various discrepancies, errors, and lacks the specificity needed to provide the basis for
rulemaking.67 Instead, CARB primarily relied on the legally-mandated U.S. Coast Guard
database of vessel registration, which it identified as the best available data, "particularly when
compared with a useful but not error-free AIS system," and barring "an ongoing systematic
reason to register vessels in California before moving them out of state."68 Going forward,
CARB stated that it will continue outreach efforts to increase direct activity reporting from
vessel owners, which together with registration data provides "by far the best sources available
for non-reported vessels."69
As noted above, the scope of EPA's review of the first authorization prong is limited to
examining the stringency of CARB's emission standards, in the aggregate, in comparison to
applicable Federal standards and the burden of proof lies with the opponents of the authorization.
Based on the record, the opponents have not met their burden of proof and therefore EPA cannot
deny the authorization request on the basis of the first prong. These comments are not germane
as even assuming CARB's emission inventory was flawed and CARB overestimated the benefits
of its rule, nothing in CAA section 209(e)(2)(A)(i) (or section 209(e) generally) requires CARB
to achieve a specific level of benefits beyond the Federal program. The commenter failed to
show how its alleged inventory-related claims were so grave as to render CARB's nonroad
66Kirby; Westar Marine Services, EPA-HQ-OAR-2023-0153-0041.
67 Final Statement of Reasons for Rulemaking, Including Summary of Comments and Agency Response Public
Hearing Date: November 19, 2021, and March 24, 2022 ("CARB FSOR") at 225. EPA-HQ-OAR-2023-0153-0006.
68 Id. at 226.
69 Id.
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program less protective than the Federal program in the aggregate. In addition, although not
germane to section 209(e)(2)(A)(i), EPA also finds that opponents have not demonstrated that
inaccuracy of CARB's count of total affected vessels undermines California's protectiveness
determination.70 Compared to Coast Guard registration data, reporting data to CARB as of
February 2019 reflected only about half of the total CHC population in California.71 CARB then
scaled its reporting data to reflect local and statewide Coast Guard vessel counts, and refined its
engine and vessel population according to stakeholder input, resulting in a total scaled CHC
population of 3,159 vessels (down from the Coast Guard value of 3,692, but more than CARB
reporting at 1,908).72 By contrast, commenters did not demonstrate how AIS is a superior source
of data, nor did they convince CARB of that position during the development of the
amendments. And beyond comparing conclusions drawn from each set of data, they failed to
explain how AIS data could be applied to correct Coast Guard counts, let alone how such a
correction would compare to the scaling and corrections applied by CARB. Indeed, CARB
responded to explain how its use of registration data constituted the best available data.73
Commenters opposing CARB's vessel population data did not meet their burden.
Therefore, EPA cannot find that CARB was arbitrary and capricious in its protectiveness
determination and cannot deny CARB's authorization request based on a finding under CAA
section 209(e)(2)(A)(i).
70 EPA also notes that it considers CARB's vessel population to not bear on California's need for standards to meet
compelling and extraordinary conditions. As noted in Section III.B, this need is defined by the conditions existing in
California, not by the amount of emission reductions expected by the standards under review.
71 CARB ISOR app. C-l at A-19.
12 Id.
73 CARB FSOR at 225-26.
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B. Second Authorization Criterion
Under CAA section 209(e)(2)(A)(ii), EPA must grant an authorization for California
nonroad vehicle and engines standards and accompanying enforcement procedures unless EPA
finds that California "does not need such State standards to meet compelling and extraordinary
conditions." EPA has traditionally interpreted this provision, consistent with its interpretation of
similar language in section 209(b)(1)(B), as requiring consideration of whether conditions in
California justify the need for a separate nonroad vehicle and engine program to meet compelling
and extraordinary conditions, and not whether any given standard or set of standards is necessary
to meet such conditions.74
Congress intended to allow California to address its extraordinary environmental
conditions and foster its role as a laboratory for control of emissions from nonroad vehicles and
engines. The Agency's longstanding practice therefore has been to evaluate CARB's requests
with the broad discretion to allow California to select the means it determines best to protect the
health and welfare of its citizens in recognition of both the harsh reality of California's air
pollution and the importance of California's ability to serve as a pioneer and a laboratory for the
nation in setting new motor vehicle emission standards and developing control technology.75
EPA notes that "the statute does not provide for any probing substantive review of the California
standards by federal officials."76 As a general matter, EPA has applied the traditional
interpretation in the same way for all air pollutants, criteria and GHG pollutants alike.77 In the
CHC Authorization Support Document, CARB stated that EPA has traditionally interpreted
74 See, e.g., 82 FR 6525 (January 19, 2017); 78 FR 58090 (September 20, 2013).
75 See, e.g., S. Rep. No. 403, 90th Cong., 1st Sess. 33 (1967) (The waiver of preemption is for California's "unique
problems and pioneering efforts."); 113 Cong. Rec. 30950, 32478 ('' [T]he State will act as a testing agent for
various types of controls and the country as a whole will be the beneficiary of this research.'') (Statement of Sen.
Murphy).
76 Ford Motor v. EPA, 606 F.2d 1293, 1300 (D.C. Cir. 1979).
77 74 FR at 32763; 76 FR 34693; 79 FR 46256; 81 FR 95982; 88 FR 20688.
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CAA sections 209(b)(1)(B) and 209(e)(2)(A)(ii) as requiring an inquiry regarding California's
need for a separate motor vehicle and nonroad engine and equipment emissions control program,
respectively, to meet compelling and extraordinary conditions, and not whether any given
standard is necessary to meet such conditions.78 CARB also stated that even under an alternative
interpretation where the need for each standard is assessed, that the CHC standards are needed to
address both criteria pollutants and greenhouse gas emission.79 EPA has expressed this as an
inquiry into "the existence of 'compelling and extraordinary' conditions" of the kind for which a
separate state program of controls remains warranted. In other words, "review ... under section
209(b)(1)(B) is not based on whether California has demonstrated a need for the particular
regulations, but upon whether California needs standards to meet compelling and extraordinary
conditions."80
CARB notes that California, particularly in the South Coast and San Joaquin Valley Air
Basins, "continues to experience some of the worst air quality in the nation and the South Coast
and San Joaquin Valley Air Basins, in particular, continue to be in extreme non-attainment with
national ambient air quality standards for ozone and serious non-attainment with national
ambient air quality standards for particulate matter."81 CARB identified CHCs as significant
sources of harmful air pollutants, and the need for CARB to achieve reductions of NOx and PM
78 CARB CHC Authorization Support Document at 27.
79 CARB CHC Authorization Support Document at 29. CARB notes that EPA has reconsidered its SAFE I action
that had interpreted the second waiver prong as requiring an inquiry into the need for each standard. EPA notes that
it continues to believe the best interpretation of the second waiver prong is that set forth in the SAFE I
reconsideration action (87 FR 14332 (March 14, 2022). Nonetheless, even if EPA were to apply the alternative
interpretation, we would still find that the State needs the 2022 CHC Amendments to meet compelling and
extraordinary conditions, substantially for the reasons stated in CARB's CHC authorization request.
80 CARB CHC Authorization Support Document at 27.
81 Id. at 28. See https://www3.epa.gOv/airqualitv/greenbook/ancl.html#CA. last consulted November 30, 2024,
located at EPA-HQ-OAR-2023-0153 for a list of the nonattainment areas in California both for ozone and PM2.5.
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to attain the national ambient air quality standards (NAAQS) for ozone and PM.82 In addition,
CARB noted the public health and air quality benefits that would accrue from these reductions in
NOx and PM emissions, including "to reduce the total number of incidents for premature
mortality, cardiovascular and respiratory hospitalizations, and emergency room visits between
2023-2028, in an amount equivalent to monetized health benefits of approximately $5.25
billion."83 CARB also notes that even under the alternative interpretation of the second prong,
California's need for individual GHG emissions standards to meet compelling and extraordinary
conditions continues to exist "because many CHC are powered by diesel-fueled [sic] engines that
emit GHGs" and "emissions of GHGs from the maritime industry is projected to increase by up
to 250 percent from current levels by 2050, due to industry growth."84
EPA received comment that noted the American Lung Association's April 2023 report,
which ranks cities and counties based on ozone and particle pollution, "found that California is
home to six of the ten most ozone-polluted cities in the United States, including the top four."85
A commenter noted that CHCs and ships "are a growing obstacle for attainment in the South
Coast. . . projected to emit 36 tons per day of NOx emissions in the South Coast, more than
mobile or non-mobile source [sic] in the region."86 Likewise, another commenter agreed that
CHCs account for "one of the largest sources of toxic diesel pollution for Californians living in,
or near, port adjacent communities."87
82 M at 30. CARB projects the 2022 CHC Amendments to cumulatively reduce statewide emissions of
approximately 33,340 tons of oxides of nitrogen and 1,610 tons of particulate matter (PM2 5) from 2023 to 2028.
83 CARB CHC Authorization Support Document at 30 n.80 (citing CARB ISOR at V-7).
84 Id. at 32-33.
85 American Lung Association, EPA-HQ-OAR-2023-0153-0026 (citing https://www.lung.org/sota). EPA notes that
the cited website now displays the American Lung Association's April 2024 report, but that the reflected data
continues to match the commenter's statement.
86 Earthjustice et al., EPA-HQ-OAR-2023-0153-0044.
87 Ocean Conservancy, EPA-HQ-OAR-2023-0153-0033.
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EPA also received comments that questioned whether CARB had adequately
demonstrated the need for the 2022 CHC Amendments. Two commenters claimed flaws in
CARB's emission inventory, calling for third-party verification.88 Other commenters went
further to question the towing vessel inventory used by CARB, claiming that the count was too
high. Two such commenters cited an independent study by Ramboll that had reduced inventory
based on automatic identification system ("AIS") data.89 These commenters claimed that this
data showed that "non-reporting" vessels account for a smaller percentage of the total operating
hours assumed by CARB. Another two commenters cited their own data for inventory
discrepancies.90
As discussed in Section III. A, CARB notes that while "AIS is generally a good indicator
of where vessels operate," it contains various discrepancies, errors, and lacks the specificity
needed to provide the basis for rulemaking.91 Instead, CARB primarily relied on the legally-
mandated U.S. Coast Guard database of vessel registration, which it identified as the best
available data, "particularly when compared with a useful but not error-free AIS system," and
barring "an ongoing systematic reason to register vessels in California before moving them out
of state."92 Going forward, CARB states that it will continue outreach efforts to increase direct
activity reporting from vessel owners, which together with registration data provides "by far the
best sources available for non-reported vessels."93
Based on a review of the authorization record, the opponents have not demonstrated that
California no longer has a need for its nonroad emission program, including its 2022 CHC
88 Island Packers; Kirby Offshore Marine LLC.
89 AWO; Curtin Maritime.
90 Kirby Offshore Marine LLC; Westar Marine Services.
91 CARB Final Statement of Reasons ("FSOR") at 225.
92 Id. at 226.
93 Id.
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Amendments. As noted above, CARB discussed California's severe air quality conditions at
length, and showed how CHCs contribute to these issues. Opponents to the authorization did not
meet their burden to show how CARB's analysis of the need for its standards to meet these
compelling and extraordinary conditions was insufficient.
CARB's submission and EPA's evaluation of the second authorization criterion at section
209(e)(2)(A)(ii) plainly demonstrates the criterion is met. CARB's Board Resolution and its
authorization request plainly sets forth its basis to demonstrate the need for its nonroad emission
program to meet compelling and extraordinary conditions under the second authorization
criterion.
CARB has repeatedly demonstrated the need for its nonroad engines and vehicles
emissions program to address compelling and extraordinary conditions throughout the state of
California, including in its nonattainment areas as well as in local communities affected by the
2022 CHC Amendments. The opponents of the waiver have not adequately demonstrated that
California does not need its nonroad emissions program to meet compelling and extraordinary
conditions. Therefore, EPA determines that it cannot deny the authorization requests under
section 209(e)(2)(A)(ii). Accordingly, for the reasons stated above, EPA cannot find that
California does not need the 2022 CHC Amendments to meet compelling and extraordinary
conditions. In addition, to the extent the alternative interpretation were to apply, for the reasons
noted above, EPA cannot find that California does not need the standards contained in the 2022
CHC Amendments on their own are not needed to meet compelling and extraordinary conditions
and thus cannot deny CARB's request for authorization based on this criterion under section
209(e)(2)(A)(ii).The opponents of the waiver have not adequately demonstrated that California
does not need its nonroad emissions program to meet compelling and extraordinary conditions.
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Therefore, EPA determines that it cannot deny the authorization requests under section
209(e)(2)(A)(ii).
C. Third Authorization Criterion
CAA section 209(e)(2)(A)(iii) instructs that EPA cannot grant an authorization if
California's standards and enforcement procedures are not consistent with "this section." As
noted above, EPA's 1994 rule sets forth, among other things, regulations providing the criteria,
as found in section 209(e)(2)(A), which EPA must consider before granting any California
authorization request for new nonroad engine or vehicle emission standards.94 EPA has
traditionally interpreted the section 209(e)(2)(A)(iii) "consistency" inquiry to require that
California standards and enforcement procedures be consistent with section 209(a), section
209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted that subsection in the context of
section 209(b) motor vehicle waivers).95 This section provides information for each element of
the third authorization criterion for the 2022 CHC Amendments.
1. Consistency with CAA Section 209(a)
To be consistent with CAA section 209(a), the 2022 CHC Amendments must not apply to
new motor vehicles or new motor vehicle engines. This is the case here. The 2022 CHC
Amendments expressly apply only to nonroad engines and do not apply to motor vehicles or
engines used in motor vehicles as defined by CAA section 216(2). In its CHC Authorization
Support Document, CARB stated that the 2022 CHC Amendments are consistent with section
209(a) because "[njeither the propulsion nor the auxiliary engines covered by 2022 CHC
Amendments are preempted under section 209(a) because they are neither new motor vehicles
nor new motor vehicle engines, and clearly fall within the definition of nonroad engine
94 See 40 CFR part 1074.
95 59 FR at 36982-83.
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established by Congress."96 We received one comment on this issue, which was supportive.97 We
did not receive any comments in opposition to the authorization based on this criterion.
Therefore, EPA cannot deny California's request on the basis that California's 2022 CHC
Amendments are not consistent with CAA section 209(a).
2. Consistency with CAA Section 209(e)(1)
To be consistent with CAA section 209(e)(1), the 2022 CHC Amendments must not
affect new farm or construction equipment or vehicles that are below 175 horsepower or new
locomotives or new engines used in locomotives. In its Authorization Support Document, CARB
stated that the 2022 CHC Amendments "do not establish any emissions standards or other
emissions related requirements for locomotives, locomotive engines, or to farm or construction
equipment of any power size and are therefore not inconsistent with section 209(e)(1)."98 We
received one comment on this issue, which was supportive.99 EPA did not receive any adverse
comments regarding California's consistency with CAA section 209(e)(1). Therefore, EPA
cannot deny California's request on the basis that California's 2022 CHC Amendments are not
consistent with section 209(e)(1).
3. Consistency with CAA Section 209(B)(1)(C)
a. Historical Context
As explained above, EPA has historically interpreted the 209(e)(2)(A)(iii) consistency
requirement to mean that California's standards must be consistent with CAA section
209(b)(1)(C) and therefore consistent with CAA section 202(a). Under CAA section
209(b)(1)(C), EPA must grant California's waiver (or authorization) request unless the Agency
96 CHC Authorization Support Document at 33 (citations omitted).
97 Earthjustice et al. at 15-16.
98 Clean Air Act § 209(e)(2); CARB CHC Authorization Support Document at 33-34.
99 Earthjustice et al. at 15-16.
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finds that California standards and accompanying enforcement procedures are "not consistent"
with CAA section 202(a). CAA section 202(a)(2) specifies that standards are to "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 within such
period." EPA has long limited its evaluation of whether California's standards are consistent
with CAA section 202(a) to determining 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 period; or whether (2) California and Federal test procedures are
incompatible so that a single vehicle could not be subjected to both tests. EPA has also explained
that "the import of section 209(b) is not that California and Federal standards be identical, but
that the Administrator not grant a waiver of Federal preemption where compliance with the
California standards is not technologically feasible within available lead time."
We often refer to the first element by the shorthand of "technological feasibility." The
scope of EPA's review of whether California's action is consistent with CAA section 202(a) is
narrow. The determination is limited to whether those opposed to the authorization have met
their burden of establishing that California's standards are technologically infeasible, or that
California's test procedures impose requirements inconsistent with the Federal test procedures.100
Further, EPA's review is limited to the record on feasibility of the technology. Therefore,
EPA's review is narrow and does not extend to, for example, whether the regulations under
review are the most effective, whether the technology incentivized by California's regulations
are the best policy choice, whether EPA has the authority under the CAA to set such standards
(versus California's sovereign authority to set its standards), or whether better choices should be
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evaluated. The Administrator has thus long explained that "questions concerning the
effectiveness of the available technology are also within the category outside my permissible
scope of inquiry," under CAA section 209(b)(1)(C).101
In determining whether there is inadequate lead time to permit the development of
technology, EPA considers whether adequate technology is presently available or already in
existence and in use. If technology is not presently available, EPA will consider whether
California has provided adequate lead time for the development and application of necessary
technology prior to the effective date of the standards for which a waiver is being sought.
Additionally, the D.C. Circuit has held that "[i]n the waiver context, section 202(a)
relates in relevant part to technological feasibility and to federal certification requirements. The
technological feasibility component of section 202(a) obligates California to allow sufficient lead
time to permit manufacturers to develop and apply the necessary technology. The federal
certification component ensures that the Federal and California test procedures do not impose
inconsistent certification requirements. Neither the Court nor the agency has ever interpreted
compliance with section 202(a) to require more."102
Regarding the costs portion of the technology feasibility analysis, when cost is at issue
EPA evaluates the cost of developing and implementing control technology in the actual time
provided by the California regulations. The D.C. Circuit has stated that compliance cost "relates
to the timing of a particular emission control regulation."103 That court, in MEMA /, opined that
CAA section 202's cost of compliance concern, juxtaposed as it is with the requirement that the
101 41 FR 44209, 44210 (October 7, 1976); 47 FR 7306, 7310 (February 18, 1982) ("I am not empowered under the
Act to consider the effectiveness of California's regulations, since Congress intended that California should be the
judge of 'the best means to protect the health of its citizens and the public welfare.'" (internal citations omitted)).
102 Motor Equipment Manufacturers Association v. Nicols, 143 F. 3d 449 (D.C. Cir 1998).
103 MEMA I at 1119.
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Administrator provide the requisite lead time to allow technological developments, refers to the
economic costs of motor vehicle emission standards and accompanying enforcement
procedures.104
b. CARB's CHC Authorization Discussion of Section 209(B)(1)(C)
As noted above, CARB's 2022 CHC Amendments performance standards apply to new,
newly-acquired, and in-use commercial harbor craft. The standards and compliance dates vary by
vessel category and, in the case of existing vessels, engine model year. The new requirements
rely on the use of EPA-certified Tier 4 (or Tier 3) engines equipped with a diesel particulate
filter (DPF) and, for short-run ferries and excursion vessels, Zero-Emission and Advanced
Technologies (ZEAT). To address the potential absence of certified DPFs for marine
applications, the 2022 CHC Amendments include a set of compliance extensions; a vessel owner
must apply for and receive approval for a compliance extension. Once an owner has exhausted
the available compliance extensions, or December 31, 2034, at the latest, the owner will no
longer be permitted to operate a non-compliant vessel in Regulated California Waters (RCW).
The 2022 CHC Amendments also include a renewable diesel fuel requirement and a
methane emission limit.105 CARB's renewable fuel requirement is an operational regulation not
preempted by CAA section 209 and is therefore not before EPA in this authorization
proceeding.106 CARB's methane standard limits new engines fueled by gaseous or liquid fuels
other than diesel fuel to not more than 1.0 grams methane/brake horsepower-hour.
104 Id. See S. Rep. No. 192, 89th Cong., 1st Sess. 5-8 (1965); H.R. Rep. No. 728 90th Cong., 1st Sess. 23 (1967),
reprinted in U.S. Code Cong. & Admin. News 1967, p. 1938. It relates to the timing of a particular emission control
regulation rather than to its social implications.
105 Renewable diesel fuel regulation is at Cal. Code Regs, title 17, § 2299.5; methane requirement is at Cal. Code
Regs, title 17, § 93118.5(e)(9)(A)(3).
106 See 40 C.F.R. part 1074, app. A to subpart A ("EPA believes that states are not precluded under 42 U.S.C. 7543
from regulating the use and operation of nonroad engines, such as regulations on. . . sulfur limits on fuel. . . .")•
Accordingly, CARB is not requesting a waiver for its fuel requirements. CARB CHC Authorization Request at 20
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i. Requirements for New and Newly-Acquired Harbor Craft
The 2022 CHC Amendments set out requirements for new and newly-acquired harbor
craft vessels.107 Beginning January 1, 2023, these vessels
may not be sold, offered for sale, leased, rented, or acquired unless each
propulsion and auxiliary engine on the vessel meets performance standards that
are equivalent in stringency to: (1) the most stringent federal marine engine
standard (federal Tier 3 or Tier 4 marine standards) or California or federal
offroad engine standards (California or federal Final Tier 4 off-road engine
standards) that were in effect at the time any of the aforementioned actions occur
and that are applicable to new engines with the same power ratings and
displacements as the subject propulsion and auxiliary engines, and that (2) reflect
the addition of a level 3 Verified Diesel Emission Control Strategy (VDECS),
such as a verified diesel particulate filter (DPF).108
The requirements for new and newly-acquired vessels begin January 1, 2023.
CARB stated that:
[t]he basic requirement for new engines in new CHC and new engines acquired
for use in new or newly acquired in-use CHC to meet either the most stringent
federal marine engine emission certification standards applicable ... are (sic)
clearly technologically feasible, since those requirements simply mirror EPA's
Tier 3 and Tier 4 marine engine and California and federal Final Tier 4 off-road
engine emission standards, and because EPA fully considered the technological
feasibility and economic costs associated with each of those emission standards in
its rulemakings promulgating those standards.109
CARB stated that more than 20 marine engines have been certified to federal Tier 4 marine
standards. CARB also allows off-road Tier 4 Final engines to be used in marine applications
provided that manufacturers/operators comply with the provisions of 40 CFR 1042.605. CARB
stated that there is at least one company in the process of marinizing Tier 4 Final off-road
engines in accordance with the requirements of 40 CFR 1042.605.110
n.32 (citing CAA section 209(d); 62 FR 67733, 67736 (Dec. 30, 1997)). EPA is therefore not issuing an
authorization for fuel requirements. EPA nonetheless agrees that CARB's fuel requirements are in-use operational
controls not preempted by section 209.
107 Cal. Code Regs, title 17, § 93118.5(e)(8) and (9).
108 CHC Authorization Support Document at 4.
109 Id. at 34-35 (citations omitted).
110 Id. at 35 (citations omitted).
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CARB also stated that the requirement that reflects the addition of a level 3 Verified
Diesel Emission Control Strategy (VDECS) is also technically feasible. CARB "anticipates that
the vast majority of vessel owners will comply with this requirement by purchasing and
installing diesel particulate filters (DPFs) that have demonstrated the capability to reduce diesel
particulate emissions by 85 percent (a level 3 Verified Diesel Emission Control Strategy
(VDECS)). . . ,"m CARB notes that it has "not yet verified a level 3 VDECS intended for use
on marine engines; however, it has issued ... a level 2 plus VDECS for a DPF intended for use
on marine engines."112 CARB also stated that there are 4 different manufacturers working on
certifying level 3 VDECS and it expects that additional manufacturers will be able to certify
level 3 VDECS by the compliance deadline as they can modify their proven existing on-road,
off-road, and stationary aftertreatment systems that have been in use since 2007.113
CARB states that
[i]f no engines or aftertreatment devices needed to comply with the performance
standards are available, vessel owners or operators must, before initiating
construction of a vessel, submit information to CARB's Executive Officer
explaining why the performance standards cannot be met. CARB's Executive
Officer may approve requests to install engines meeting federal marine engine or
CARB or federal off-road engine standards but that do not meet generally
applicable performance standards if the information submitted and the exercise of
good engineering judgment indicates that the applicable performance standards
cannot be met. Engines granted exemptions under this provision are subject to the
general in-use requirements.114
This means that, in the case of a new vessel, if no DPF is available when the vessel is being built,
it should be designed to install one once a DPF becomes available. In the meantime, once the
ship goes into service, it becomes an existing vessel with respect to the DPF requirement and
111 Id. at 34-35 (citations omitted).
112 Id. at 36 (citations omitted).
113 Id. at 36-37.
114 Id. at 4.
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would be eligible for an E2 availability extension followed by a scheduling extension, if
necessary.115
ii. In-use Harbor Craft, Other Than Commercial Fishing Vessels
The 2022 CHC Amendments set out requirements for in-use engines for all harbor
craft.116 The requirements apply to engines on an expanded set of vessels than were covered
under CARB's existing CHC regulation. As established by California's 2008 CHC rule,117
engines on ferries, excursion vessels, tugboats, towboats, barges, dredges, and crew and supply
vessels were required to demonstrate compliance with Tier 2 or Tier 3 standards by specified
compliance dates, based on the model years and hours of operation of the in-use engines used in
such vessels. The 2022 CHC Amendments expand the categories of affected in-use CHC to
include pilot vessels, push boats, workboats, research vessels, CPFVs, commercial fishing
vessels, and temporary replacement vessels, as well as tank barges under 400 feet and 10,000
GT. The 2022 CHC Amendments require that each engine on regulated in-use vessels
demonstrate compliance with the same performance standards applicable to engines on new
vessels (equivalent in stringency to the most stringent federal marine engine standards (Tier 3 or
Tier 4) or California or federal Tier 4 Final off-road standards applicable to new engines with the
same power ratings and displacements as the subject propulsion and auxiliary engines, plus the
addition of a level 3 verified DPF, by the specified compliance dates. CARB projected these
requirements are feasible for the reasons described above.
In addition, there are several compliance extensions available to provide compliance
flexibility for in-use vessels. These compliance extensions enhance the technical feasibility of
115 See Section III.C.3 for discussion of compliance extensions.
116 Cal. Code Regs, title 17, § 93118.5(e)(12).
117 See 76 FR 77521 (Dec. 13,2011).
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the standards by providing more time for the technology to mature, while still providing an
incentive for manufacturers to certify and make the engines and emissions control equipment
available:
• First, "[t]wo-year, renewable compliance extensions are available if vessel owners or
operators can demonstrate that no certified engines or DPFs are available to meet the in-
use performance standards by specified compliance dates. If engines certified to the most
stringent federal Tier 3 or Tier 4 marine engine standards or California or federal Tier 4
Final off-road standards are available, but DPFs are not available, vessel owners or
operators must repower their in-use CHC with such engines by the applicable compliance
dates to be eligible for an extension from the DPF requirement. If a DPF subsequently
becomes available for the engine, the vessel owner or operator must install that DPF on
the engine within six months of the DPF's availability or by the expiration of the
compliance extension, whichever is sooner."118 This is compliance extension E2.
• Second, "[ojwners or operators of all categories of in-use CHC are eligible for a limited
number of compliance extensions if they demonstrate that: (1) no suitable engines (either
federal Tier 3 or Tier 4 marine engines or California or federal Tier 4 Final off-road
engines) or DPFs can physically fit within existing vessels without compromising the
vessels' structural integrity or stability, and that replacing the in-use vessels with new
compliant vessels equipped with compliant engines is not financially possible; or (2)
needed vessel modifications will reduce passenger capacity by at least 25 percent, and
will also result in increased operational emissions (i.e., a ferry operator may need to
schedule more runs which may accordingly result in increased emissions).119 This is
compliance extension E3.
• Finally, "[ojwners or operators of all categories of in-use CHC are eligible for renewable,
one-year extensions if they demonstrate that compliance delays are due to equipment
manufacturer, installation, or inspection delays, including new vessel delays due to
shipyard capacities, multiple engines on multiple vessels having the same compliance
dates, or multiple engines on a single vessel having different compliance dates."120 This
is compliance extension E5.
The following summary table of the extensions was provided by CARB at a Technical
Working Group Workshop:121
118 Id. at 14-15.
119 Id. at 15.
120 Id. at 16.
121 CARB, Overview of the Commercial Harbor Craft Regulation, Technical Working Group Workshop #1, April
24, 2024, https://ww2.arb.ca.gOv/sites/default/files/2024-05/Overview%20of%20Regulation%20ADA.pdf, accessed
December 18, 2024.
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Table 1: Summary of Extensions
Type
Eligibility criteria
Application Window
Duration
Renewal
a 9 months prior to
Infrastructure
delays (E1)
Shore power, ZEAT
vessels
compliance dates
9-12 months prior to extension
expirations for renewals
1-year
1 renewal, not beyond 2034
No certified
Demonstration of lack
9-12 months prior to
engines or
of certified
compliance dates or extension
2-year
Unlimited
DPFs (E2)
enqines/DPFs
expirations
CPFV Tier 3
(E3)
Demonstration of Tier
3 or better by
December 31, 2024
By July 1, 2024
10-year
No renewal
Vessel
replacement
needed (E3)
Demonstration of
financial difficulty
a 18 months prior to
compliance dates
9-12 months prior to extension
expirations for renewals
2-year
Ferry, CPFV, Excursion vessels: up to
8 years, not beyond 2034
Tier 3+ workboats: unlimited
All other vessels: Up to 6 years, not
beyond 2034
Tier 4, <2600
Limited
hours/year or 1300 in
9-12 months prior to
operating
DACs, vessel
compliance dates or extension
2-year
Unlimited
hours (E4)
replacement necessary expirations
for addition of DPF
Scheduling
extension (E5)
Delays due to
manufacturer or
shipyard delay
Prior to compliance date
1-year
Unlimited
iii. New and In-use Commercial Fishing Vessels
The requirements in the 2022 CHC Amendments for engines on new and in-use
commercial fishing vessels122 are different from those described above. For existing commercial
fishing vessels, boats that are equipped with pre-Tier 1 or Tier 1 federal marine engine standards
or off-road engine standards must meet at least federal Tier 3 marine or California or federal Tier
3 off-road engine standards for a new engine of the same power rating and displacement as the
preexisting in-use engines, with compliance dates between December 31, 2030, and December
31, 2032, depending on the model year of the original engine. In-use commercial fishing vessels
equipped with in-use engines that meet Tier 2 federal marine engine standards or California or
federal Tier 2 off-road engine standards are not required to replace those engines. Engines on
new commercial fishing vessels must meet the most stringent marine standards (Tier 3 or Tier 4)
122 Cal. Code Regs, title 17, § 93118.5(e)(13).
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in effect on the date of engine acquisition. Both new and existing commercial fishing boats may
be eligible for E5 compliance extensions.
According to CARB, these standards are technically feasible as compliant engines are
readily available and no aftertreatment is required for in-use commercial fishing vessels,
iv. Requirements for New, Newly-Acquired, and In-use Short Run Ferries and New and
Newly-Acquired Excursion Vessels
The 2022 CHC Amendments include additional requirements for new, newly-acquired,
and in-use short run ferries and new and newly-acquired excursion vessels.123 These standards
are based on Zero-Emission Advanced Technologies ("ZEAT"), which is defined as a propulsion
system, auxiliary power system, or vessel utilizing a zero-emission propulsion and auxiliary
power system that has no tailpipe exhaust emissions other than water vapor or diatomic nitrogen
from the onboard source(s) of power. Under the amendments, beginning December 31, 2025,
new, newly-acquired, and in-use short-run ferries must be equipped with zero-emission
technologies. Beginning December 31, 2024, new and newly-acquired excursion vessels must be
equipped with zero-emission capable hybrid technology that covers a minimum of 30 percent of
the combined power generated from main propulsion and auxiliary engines, when averaged over
a calendar year. Any internal combustion engines on these vessels must meet the performance
standards applicable to new harbor craft discussed above.
In addition, the amendments require that vessel owners and operators must purchase,
install, and maintain infrastructure needed to power ZEAT vessels.124 Owners and operators of
facilities where ZEAT vessels moor or dock are required to allow the installation of charging or
fueling infrastructure needed to power such vessels and must additionally cooperate with ZEAT
123 Cal. Code Regs, title 17, § 93118.5(e)(10).
124 Cal. Code Regs, title 17, § 93118.5(i).
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vessel owners regarding surveying, permitting, construction, installation, and maintenance of
requisite charging or fueling infrastructure. There is a specific compliance extension for ZEAT
infrastructure delays (El).
CARB states that "[t]he technologies needed to meet the ZEAT requirements are
commercially available," and gives specific examples of excursion and ferry vessels currently
operating in RCW that are equipped with the technology.125
v. Additional Compliance Flexibility: Alternative Control of Emissions (ACE)
CARB included an alternative control of emissions (ACE) plan as an additional pathway
to compliance. These plans are created by the owners and are approved on a case-by-case basis.
CARB specifies that "[s]uch alternative strategies can include proposals such as engine
modifications, exhaust after-treatment controls, engine repowers, engine rebuild to more
stringent standards, or fleet averaging. CHC owners or operators electing to utilize this option
must demonstrate that proposed ACE plan will achieve reductions of PM and NOx emissions
that are at least equivalent to the reductions of PM and NOx emissions that would otherwise
occur if they were to comply with the primary emission requirements from the time period
beginning January 1, 2023 through December 31, 2034" and considering maximum allowable
extensions.126 CARB states that ACE enhances the feasibility of the program by allowing for
innovative compliance strategies.
vi. Test Procedure Consistency
CARB states that
[n]o issue regarding test procedure inconsistency between federal and California test
procedures exists. The compliance methods do not alter the test procedures specified
for certifying federal Tier 3 or 4 new marine engines or federal Tier 4 Final nonroad
engines. In addition, there are no conflicts between federal and California test
125 Id. at 37-38.
126 Id. at 17-18.
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procedures for verification testing for diesel emission control strategies in that there is
no comparable mandatory federal program. Therefore, the Administrator cannot find
that the California requirements are inconsistent with CAA section 209. To the extent
that the compliance methods apply to in-use modifications to existing engines, they
are not inconsistent with federal test procedures simply because EPA does not have
any comparable in-use standards and test procedures and lacks the authority to adopt
such requirements.127
c. Comments Received
i. Technology Available for Compliant Engines/Aftertreatment Systems
EPA received comments on the availability of technology to meet the standards set in the
CHC 2022 Amendments.128 These comments were applicable to a wide range of vessel types,
including tugboats, towing vessels, articulated tug barges, pilot boats, and passenger vessels.
These commenters stated that no DPFs are currently commercially available and approved for
use in marine applications. Some commenters expressed concern about the limited availability of
EPA certified Tier 4 engines and aftermarket DPF for their vessels. One commenter stated that
there are no Tier 4 marine engines available with less than 600 kW of power.129 One commenter
that operates pilot vessels stated that their vessels have unique operating requirements, and that
limited technology exists that would allow them to meet the requirements of the CHC
amendments.130 The commenter also said that this technology is new to the market and still
needs development time.131 This commenter did not provide technical reasons for their
statements. Another commenter said that use of DPFs on vessels on Lake Tahoe would put larger
121 Id. at 41-42.
128 AWO; Centerline Logistics Corporation ("Centerline Logistics-2"), EPA-HQ-OAR-2023-0153-0046; Curtin
Maritime; Westar Marine Services; Jacobsen Pilot Service, Inc., EPA-HQ-OAR-2023-0153-0030; All American
Marine, Inc., EPA-HQ-OAR-2023-0153-0019; Passenger Vessel Association ("PVA-1"), EPA-HQ-OAR-2023-
0153-0015; Passenger Vessel Association ("PVA-2"), EPA-HQ-OAR-2023-0153-0048.
129 North Tahoe Cruises of California ("North Tahoe Cruises"), EPA-HQ-OAR-2023-0153-0057.
130 San Francisco Bar Pilots Association, EPA-HQ-OAR-2023-0153-0045.
131 Id.
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stress on the engines because of high altitude operating conditions and would force the engine to
work harder and use more fuel.
An engine manufacturers organization stated that no engine manufacturers are planning
on producing Tier 4+ commercial marine engines by the applicable compliance dates and that
there are no Level 3 DPFs available or approved for use in CHCs.132
This issue is about the availability of technology required to meet the revised harbor craft
standards for new and in-use vessels. The revised standards are performance standards that are
expected to be achieved through the use of EPA Tier 3 or Tier 4 engines with an added DPF
(except for short-run ferries and excursion vessels; see Sections III.C.3.3). The applicable EPA
tier and the compliance dates depend on the type and size of the engine.
CARB stated in their authorization request that no new existing technology needs to be
created to meet the requirements in the CHC amendments; rather, available technology only
needs to be adapted for marine applications. CARB stated that marine Tier 3 and Tier 4 engines
and Tier 4 off-road engines already exist and are certified, so they are therefore technologically
feasible as propulsion units on CHC. CARB cited several engines currently available over 600
kW133 and indicated that additional Tier 4 engines would become available in the near future.
CARB also noted that though "only a few Tier 4 engines rated below 600 kW" are in operation
due to a lack of EPA requirements for this size of engine to meet Tier 4 standards, "some marine
diesel engines rated under 600 kW have been certified to meet Tier 4 standards," including down
to 441 kW.134
132 EMA.
133 CARB ISOR at Appendix E at E-40.
134 Id. at E-40-41.
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For the PM performance standards, CARB stated in their authorization request that most
owners will comply by using DPFs. CARB acknowledges that no Level 3 DPFs were currently
on the market at the time the rulemaking was published but cited several emissions equipment
Original Equipment Manufacturers ("OEMs") that are in the process of receiving approval for
their systems. CARB demonstrated in Appendix E of the ISOR that OEMs are planning to
manufacture the required technology for vessels to comply with the amendments, including a
number of European manufacturers. Appendix E of the ISOR contains a list of aftertreatment
OEMs currently pursuing CARB Level 3 Marine DPF Verification. For the issue of development
time for new aftertreatment systems, CARB cited the robustness of their verification program in
their authorization request. CARB discussed the requirements for its verification process which
include durability requirements, compatibility with intended applications, lack of defects, and
requirement to achieve the desired emissions reductions.135
CARB included provisions to provide compliance extensions for technology availability
both for DPFs and Tier 4 engines if the required technology has not been approved by the
timeline in the CHC amendments. These extensions, which are unlimited, will allow additional
time for this technology to become available.
CARB acknowledged a fuel penalty associated with operating a DPF, which they
estimated to be about 4.15 percent136 and will lead to additional C02 emissions. But CARB
noted that "GHG reductions would occur from zero-emission vessels since GHG produced by
the electrical grid are approximately 65 percent lower than those produced from burning fuel in
vessel auxiliary engines for the same electrical power," and "emissions reductions would
135 CARB CHC Authorization Request at 36 (noting that manufacturers are required "to warrant that their strategies
are free from defects in design, materials, workmanship, and that operation of their strategies will achieve the
emission reduction levels their strategies were verified to achieve").
136 CARB Standardized Regulatory Impact Assessment Released July 7, 2021 ("CARB SRIA"), p. A-13.
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continue to increase as more vessels upgrade their engines to cleaner tiers, install DPFs, and
utilize ZEAT that are available for short-run ferries and excursion vessels."137
The commenters did not meet their burden of showing that the 2022 CHC Amendments
are not technologically feasible, especially given the availability of unlimited extensions where a
certified engine/DPF is not available (E2). We agree with CARB that Tier 4 certified engines are
available, including below 600 kW, and note that some models have DPF technology
incorporated in their design. We also agree with CARB that DPF technology is well understood
for land-based applications such as highway trucks and some nonroad applications. Our 2008
marine diesel engine rule anticipated that the Tier 4 PM standards would be met through the use
of DPF technology,138 although engine manufacturers found other ways to meet the standards, so
most EPA-certified marine diesel engines do not have that technology. While an assessment of
DPF technology for marine applications is less certain, it is also the case that the CARB program
includes unlimited compliance date extensions that are available if DPFs do not become
available. EPA notes that these extensions account for the physical applicability of DPF to
vessels, which in turn accounts for characteristics of certain vessels, such as the pilot vessels
mentioned by a commenter, that may limit the ability to install this technology. Regarding use on
certain vessels such as those at higher altitudes, EPA's consideration is limited to whether or not
technology is feasible; we defer to CARB on policy decisions concerning the operation of that
feasible technology in the context of its program.
137 Id. at 42.
138 73 FR 37096, 37134 (June 30, 2008).
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ii. Feasibility of Installing Required Technology on a Vessel
EPA received comments that retrofitting the required equipment onto in-use vessels is
infeasible.139 The reasons given include (1) no space onboard for the aftertreatment and DPFs;
(2) retrofitting would require significant vessel reconfiguration, including dismantling the engine
room and stack; and (3) retrofitting would put the engine out of compliance with EPA standards.
The commenters provided general statements and did not provide detailed technical reasons for
their statements. Several commenters noted that the CARB technology feasibility study showed
that retrofits are not feasible for many tugboats.
This issue is about the feasibility of installing the required technology required on a CHC
vessel. Marine engines equipped with aftertreatment such as SCR and DPF systems are larger
and heavier than traditional engines without aftertreatment. For new vessels, the vessel can be
designed to incorporate the larger power package. Even if a DPF is not available at the time of
the vessel build, and an extension is received until a DPF system is available, the vessel design
can factor in the later installation of a DPF system.
A bigger challenge is for in-use vessels that were not originally designed to incorporate a
Tier 4 engine and a DPF. California requires that "in situations where engines certified to current
Tier 3 marine, Tier 4 marine, or Tier 4 Final off-road standards are available but DPFs are not
available, a person must repower the vessel's engines with an available Tier 3 marine, Tier 4
marine, or Tier 4 Final off-road engine by applicable compliance dates to receive an extension
for DPFs . . . The person must retrofit the vessel with a DPF within six months after a DPF
139 AMNAV Maritime, EPA-HQ-OAR-2023-0153-0047; Bay delta Maritime-1, EPA-HQ-OAR-2023-0153-0011;
Brusco Tug & Barge, public hearing testimony, EPA-HQ-OAR-2023-0153-0029; Centerline Logistics-2; Curtin
Maritime Corp.; Kirby; Seabulk, EPA-HQ-OAR-2023-0153-0036; Shaver Transportation Company. EPA-HQ-
OAR-2023-0153-0042; Vane Brothers-1; Vane Brothers-2; AWO; PVA-2; San Diego Working Waterfront, EPA-
HQ-0 AR-2023 -0153-0034.
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becomes available for the engine installed on the vessel or by the expiration date of the last
compliance extension granted, whichever is sooner."140 CARB does make extensions available
if demonstrated that no suitable engines or control technologies could be safely installed in the
vessel and purchasing a replacement vessel with compliant engines would not be financially
feasible. However, there is a time limitation for these extensions, after which the vessel would
need to be removed from service in California.
In its authorization request, CARB stated that owners can make use of extensions for
engine and DPF availability (E2), financial hardship for vessel repower/replacement (E3), low
operating hours (E4), or scheduling issues (E5) to increase flexibility in complying with the new
standards. These extensions can be used to address retrofitting equipment, replacement of a
vessel, or scheduling delays. If technology is not feasible in any particular vessel, such as in
tugboats, CARB's program allows owners and operators of such vessels to comply through use
of extensions. For explanation of what EPA is not acting on in this decision, see Section V.
iii. Timeline/Extensions
Commenters claimed that the 2022 CHC Amendments compliance timeframe is
inadequate for repowering or retrofitting compliance technology on an existing vessel and,
specifically, that it takes more than six months to install the relevant equipment once it is
developed.141 These commenters note that affected vessels are individual, purpose-built boats,
and the retrofit must be tailored for each one individually. Once the technology is available, it
can take two years to prepare the design changes; additional years to source/procure the required
140 CARB CHC Authorization Support Document at 14-15.
141 AMNAV; Baydelta Maritime-1; International Organization of Masters, Mates & Pilots, Marine Engineers
Beneficial Association, and Inlandboatmen's Union ("IOMMP et al."), EPA-HQ-OAR-2023-0153-0037; Kirby;
AWO; R.E. Staite Engineering, Inc. ("Staite"), EPA-HQ-OAR-2023-0153-0039; Vane Brothers-1; Vane Brothers-2;
EMA; Seabulk.
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engine and compatible auxiliary engine; up to two years for U.S. Coast Guard (USCG) and
classification society review; and 18 months to install the equipment, subject to shipyard
availability. Scheduling is also affected by supply chain concerns. Commenters noted that any
time out of the water is time when the vessel cannot generate revenue, and the process is further
complicated for owners with several vessels that must be modified, especially if they are not
sister boats.
These commenters referred to the requirement to install a Tier 3 or Tier 4 engine,
depending on vessel type and size, equipped with a DPF.142 Recognizing that DPFs are not yet
widely available for marine vessels, CARB included a compliance extension that provides
additional time (granted at two-year intervals),143 provided the owner repowers with the cleanest
technology engine and installs a DPF within six months after one becomes available. There is an
additional compliance extension available for scheduling issues connected with the 6-month
installation requirement (E5); this extension can be renewed indefinitely. To the extent an
installation itself will take longer than six months, which we agree with commenters is a strong
possibility, EPA expects the E5 extension will likewise apply, allowing the time needed beyond
the basic six months allotted. Alternatively, compliance extension E3 is available if the owner
cannot repower the boat or install DPF and the owner cannot afford a vessel replacement. This
extension provides additional time during which the owner can continue operating the vessel by
extending the ultimate compliance deadline.
EPA also received comment on an additional compliance extension provision for
commercial passenger fishing vessels, which are eligible for a one-time 10-year compliance
142 Cal. Code Regs, title 17, § 93118.5(e)(10), (11), and (12).
143 Cal. Code Regs, title 17, § 93118.5(e)(12)(E2).
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exemption if engines or DPF are not feasible and the owner cannot afford vessel replacement.144
To qualify, among other things the boat must have a Tier 3 engine. Commenters objected to the
reasons CARB provided to support the extension, reasoning that the same should apply to other
vessel types, and because these vessels constitute 40% of California's CHC fleet but would not
bear their share of the burden to reduce emissions from this sector. Several commenters said that
not extending this compliance to all similarly-situated vessels is arbitrary and capricious.
As noted above, EPA applies a preponderance standard to the evidence presented by
CARB and opponents,145 and its consideration is strictly limited to the criteria prescribed in CAA
section 209(e). Policy considerations beyond the statute's terms are beyond the scope of this
review. Under the appropriate standard, the commenters failed to provide material evidence that
undermines CARB's reasoned decision to extend additional flexibility to commercial fishing
vessels.146 CARB developed an alternative compliance extension for these vessels to ensure
existing boats reduce their emissions based on their analysis of available data. Commenters did
not provide evidence to show how this policy decision undermines lead time and feasibility of
the standards. While EPA acknowledges that some commenters believe CARB's differential
treatment of different sectors is unfair and arbitrary, the Clean Air Act does not authorize EPA to
apply judgement as to which sectors CARB chooses to prioritize in its regulation,
iv. Extension Process
Commenters claimed that the process for applying for and receiving compliance
extensions is too time consuming, burdensome, and costly, due to the amount of information
needed and also because the application and accompanying analysis would need to be provided
144 Cal. Code Regs, title 17, § 93118.5(e)(12)(E)(3).
145 MEMA /, 627 F.2d at 1122.
146 Even if EPA applied the arbitrary and capricious standard to this issue, EPA would find that CARB provided a
reasonable basis for its decision.
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for each vessel.147 In addition, commenters allege CARB did not propose standards to judge the
criteria for the extensions making approval subjective and uncertain.
While it may be time consuming for owners to assemble the required information, CARB
has determined that the information is necessary to determine if a compliance extension is
warranted for each case. The overall goal is to provide flexibility while encouraging
manufacturers to develop and certify the required emission control devices. EPA defers to
CARB's judgment on how much information is necessary to vindicate the program's emission
control goals while ensuring a reasonable process for applicants. In its 2007 CHC FSOR, CARB
included a one-year extension, renewable annually, which it found to satisfy any circumstance
where no suitable engine was available for a specific vessel while providing accountability
without being burdensome to the company.148 EPA acknowledged these compliance extensions
while noting that "[CAA sjection 202(a) does not allow EPA to conduct a more searching review
of whether the costs are outweighed by the overall benefits of the California regulations."149
Section 209(e)(2)(A)(iii), moreover, does not permit EPA to deny authorizations on the basis of
the State allegedly requiring too much paperwork. Similarly, that section does not direct a certain
amount of content required for CARB's use of extensions, leaving such criteria to CARB's
judgment. Nonetheless, EPA does not consider the extensions to be so subjective as to be
unreasonable, as they are based on a showing that, for instance, technology is unavailable or
inappropriate for vessels, not on some undefined criteria. In any case, no commenter
demonstrated that the process was so burdensome as to be infeasible.
147 AWO; Brusco Tug & Barge; Centerline Logistics-2; Island Packers Cruises; Kirby; Staite.
148 CARB 2007 CHC FSOR, EPA-HQ-OAR-2011-0549-0032 at 52-53.
149 76 FR at 77527. Further discussion of costs is found in Section III.C.3. of this document.
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CARB took the costs of assembling this information into account in their Standardized
Regulatory Impact Assessment, in which it estimated that the costs associated with the
compliance extension requests would include $61,000, on average, for a Naval Architect Report
and about $400 for a Financial Feasibility Report, and various other administrative costs.150
These costs are associated with a compliance extension when the vessel owner/operator
"demonstrate^] that Tier 4 + DPF is not feasible on their vessel, and that purchasing a
replacement vessel with compliant engines would not be financially feasible," consistent with an
E3 extension (though CARB lists the section applicability as for "Compliance Extensions").151
See Section III.C.3 of this document for discussion of costs of compliance,
v. Costs
EPA received comment from many types of vessel owners that the cost of complying
with this program will put their companies out of business. These include operators of various
kinds of tugs, passenger vessels, and pilot boats, as well as vessel manufacturers and industry
associations. Some of these comments included financial information comparing the compliance
costs to their annual revenue or profit.152 Other commenters said their companies cannot absorb
the costs of the program nor recoup those costs from their customers.153 One commenter claimed
that CARB's cost-benefit analysis does not support the required investment, especially if it is lost
150 CARB SRIA at 93-94.
151 Id. at 93.
152 Staite ($6 million costs, 18% of their $33 million annual revenue); San Francisco Bar Pilots Association
(commenting that they will be required to replace three vessels at $50 million each by December 31, 2025; the
commenter further claims that this cost will be borne by its customers, who can choose to use other ports); Angel
Island-Tiburon Ferry, EPA-HQ-OAR-2023-0153-0056 (comparing $4 million in cost to $800,000 annual gross
revenue); Balboa Island Ferry, public hearing testimony, EPA-HQ-OAR-2023-0153-0029 (comparing $8 million in
cost to $100,000 annual profit).
153 All American Marine (stating that private vessel operators cannot absorb the costs); Brusco Tug & Barge
(commenting that cost-benefit analysis does not support this investment and they cannot recoup the costs of the Tier
4 package); Crowley (declaring that the costs, $9.5 million per ATB, is not commercially feasible since it cannot be
recovered through increased charter hire, and it makes no commercial sense).
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or negated by a timeline that causes the premature demise of their fleet.154 Additionally, another
commenter who just repowered under the 2008 rule claims it is now facing the costs of an
additional repower.155 Commenters also noted that grant funding may not be available, either
because these vessels may not qualify or that it may not be available in time.156 Some
commenters indicated that they represent small businesses, and the additional costs may force
them to end operations in California.157 Some of these commenters said CARB's costs are too
low and are based on flawed data, although they did not provide detailed information on these
claims.158 Commenters further complained that costs for ferry operators are higher in part
because the boats and equipment are required to be manufactured in America, although their
costs may be offset by operating savings from ZEAT.159
CARB provided cost estimates for this program, for repowering with Tier 4 engines,
retrofitting DPFs, and replacing vessels. CARB expects most vessels will replace their engines,
with costs including $44,438 for commercial fishing vessels,160 $684,332 for excursion vessels,
and ranging up to $6,469,709 for catamaran ferry vessels, on a per-vessel basis.161 CARB
expects vessel operators also will be able to recover their compliance costs through increases in
rates and fares.162
154 Centerline Logistics Corporation ("Centerline Logistics-1"). EPA-HQ-OAR-2023-0153-0012.
155 Red and White Fleet, public hearing testimony, EPA-HQ-OAR-2023-0153-0029 (they already repowered two
boats to Tier 2 and now have to go to Tier 3, but their funding situation does not incentivize them to do that).
156 See for example Angel Island-Tiburon Ferry, Island Packers Cruises, PVA-2, Red and White Fleet, Staite, North
Tahoe Cruises, Green Yachts, public hearing testimony ("Green Yachts 1"), EPA-HQ-OAR-2023-0153-0029.
157 Angel Island-Tiburon Ferry, Staite, We star Maritime Services.
158 AMNAV Maritime; Westar Marine Services; PVA-2.
159 Green City Ferries, public hearing testimony, EPA-HQ-OAR-2023-0153-0029.
160 EPA notes that the amendments impose a less-stringent requirement on commercial fishing vessels, as discussed
in Section III.C.3 of this document.
161 CARB CHC Authorization Support Document at 40.
162 CARB FSOR at 40-41.
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EPA approved CARB's 2008 rule that included mandatory repowers for many types of
harbor craft.163 CARB in that rule found, for instance, "that the average impact on business's
[tugboat and towboat businesses] return on equity (ROE) was a decrease of 3.6 percent and 0.5
percent, respectively."164 CARB further noted in that rule that this impact to profitability would
be less whenever these businesses passed their costs on to customers, all the more likely for "a
needed service that is not easily replaced."165
While the repower technology in the 2022 CHC Amendments is more complex, the cost
recovery mechanisms remain analogous. Indeed, CARB "estimated that the maximum amortized
compliance costs of the 2022 CHC Amendments on typical high-speed ferry, escort/ship-assist
tugboat, and commercial fishing businesses would be 0.7 percent, 0.4 [percent], and 0.7 percent
of the average annual revenue for businesses engaged in the same industries, respectively, and
the projected increased rates for ferries and excursion vessels are modest."166 And the
compliance extensions will provide more time to boat owners to design plans to incorporate the
engines and devices on their boats.
EPA has considered the factual record and found it to be supportive of a finding that
CARB's 2022 CHC Amendments are technologically feasible within the lead time provided,
giving appropriate consideration to cost. EPA finds the record to support a conclusion that costs
are not excessive. EPA further finds that commenters have not carried their burden to undermine
this conclusion. EPA notes that its duty under this section of the CAA is simply to consider the
costs associated with CARB's regulations, even if such costs are not insignificant. EPA has
163 76 FR 77521 (Dec. 13,2011)
164 CARB 2007 CHC FSOR at 57-58.
165 Id.
166 CARB CHC Authorization Support Document at 41.
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done. We believe that CARB has sufficiently considered costs and that those costs are reasonable
and reasonably explained.167
It is CARB's responsibility to determine the best way to reduce emissions in its state, and
EPA does not reevaluate California's policy decisions in deciding whether to grant authorization
as long as the regulations can be met without making the costs prohibitive. Whether some
operators may have difficulties with the cost of the program does not make the program
infeasible.168 As EPA has previously made clear, "[t]he issue of whether a proposed California
requirement is likely to result in only marginal improvement in air quality not commensurate
with its cost or is otherwise an arguably unwise exercise of regulatory power is not legally
pertinent to [a] decision under section 209" of the CAA.169
CARB's 2022 CHC Amendments are designed and expected to result in the retrofit of
existing engines, or the replacement of engines in existing vessels. There is lead time, supported
by extensions, to accomplish this goal, and there is no evidence that costs are excessive or
present an undue burden to owners and operators of regulated vessels. For any instance in which
a retrofit or repower will not fit in a particular vessel, and replacing the vessel is not financially
167 ATA v. EPA, 600 F.3d 624, 629 (D.C. Cir. 2010) ("In approving the California TRU rule, EPA adequately
considered those costs. EPA explained that businesses can comply with the TRU rule for about $2,000 to $5,000 per
unit. J. A. 584. EPA also determined that the phased implementation of the rule would help minimize its cost.
Although the costs of the TRU rule arc not insignificant. EPA's duly under this portion of the statute is simply to
consider those costs. It did so here. EPA's conclusion — namely that California's rule was consistent with Jj
7521(a)(2) — was reasonable and reasonably explained."").
168 EPA has previously stated that it is up to CARB to choose who it will regulate under its standards, even though
such costs may impact various operators differently. See 78 FR 58090, 58119 (Sept. 20, 2013); 74 FR 3030 (Jan. 16,
2009), TRU Decision Document at 63.
169 36 FR 17458 (Aug. 31, 1971); see also 40 FR 23102, 23104 (May 28, 1975); Decision Document accompanying
58 FR 4166 (Jan. 7, 1993) at 20 ("Since a balancing of these . . . costs against the potential benefits from reduced
emissions is a central policy decision [of CARB in adopting the regulation] I believe I am required to give very
substantial deference to California's judgments on this score.").
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possible, CARB provides the E3 extension to delay application of the standards to that vessel
such that the vessel replacement costs would not be incurred.170
Likewise, there is no evidence in the record to show that the incremental cost of CARB's
requirements for new vessels is unreasonable for manufacturers, the regulated party for such
vessels.171 Though no "level 3 VDECS that is intended for use on marine engines" has been
verified at the time of CARB's authorization request, CARB notes two manufacturers have
accumulated substantial demonstration data and are well on their way to certification.172 It also
notes that "other manufacturers will likely be incentivized to also obtain verification of Level 3
VDECS ... by modifying existing on-road, off-road, or stationary application DPFs" to operate
in marine vessel conditions.173
CARB accounts for the cost of adapting existing nonroad DPF and nonroad engines to
marine applications. In its analysis, CARB expected a certain amount of vessel turnover in each
category of the fleet. This turnover, for which owners/operators would purchase new vessels,
was then accounted in CARB's overall cost analysis, both in total for each year of compliance,
and by vessel category/business. Opponents to the authorization did not in turn present evidence
to show that the incremental cost of a new vessel utilizing equipment compliant with the 2022
170 A vessel owner or operator is not eligible for the E3 extension where a compliant engine and/or DPF can be
installed in the vessel. Alternately, EPA notes that any owner/operator may choose to comply through the purchase
of a new compliant vessel in lieu of retrofit/repower.
171 EPA notes that CAA section 202 's cost of compliance relates to the timing of particular emission control
regulation. See. e.g.. MEM. I I. (ill F.2d at 1118 ("Section 202's "cost of compliance" concern, juxtaposed as it is
with the requirement that the Administrator provide the requisite lead time to allow technological developments,
refers to the economic costs of motor vehicle emission standards and accompain ing enforcement procedures. See S.
Rep. No. 192. 89th Cong.. 1st Scss. 5-8 (1965): H.R. Rep. No. 728. 90th Cong.. 1st Scss. 23 (1967). U.S. Code
Cong. Admin. News 1967. p. 1938. It relates to the timing of a particular emission control regulation rather than to
its social implications. Congress wanted to avoid undue economic disruption in the automotive manufacturing
industry and also sought to avoid doubling or tripling the cost of motor vehicles to purchasers. It therefore requires
that emission regulations be technologically feasible w ithin economic parameters. Therein lies the intent of the "cost
of compliance" requirement.").
172 CARB CHC Authorization Support Document at 36-37.
173 Id. at 37.
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CHC Amendments was excessive compared to vessels built with existing equipment. EPA
therefore finds that CARB reasonably considered the costs of development and application of the
requisite technology, and we cannot find that the incremental costs associated with
manufacturing compliant CHC vessels are excessive.
EPA is not acting on the 2022 CHC Amendments in regard to the standards for in-use
engines and vessels (excluding commercial fishing vessels) that would apply after the expiration
of the feasibility extensions where an engine or DPF is not feasible and the owner cannot afford
vessel replacement (E3). Commenters' concerns about the cost to acquire replacement vessels
are therefore beyond the scope of EPA's decision,
vi. Safety-related Issues
EPA received comments on safety aspects of the equipment required by the 2022 CHC
Amendments, including impacts on vessel stability and potential damage to the equipment or
personnel caused by technology that has not yet been approved for marine use, putting
passengers, crew, and cargo at risk.174 Much of the concern is about active DPF regeneration,
which commenters claim can damage the engine and make the vessel unsafe to operate. They
also state that its use can lead to engine room fires, which are more dangerous for boats than for
trucks because boats cannot pull over to the side of the road. Active regeneration is required,
they say, because passive regeneration requires high engine load to generate heat, which most
towing vessels cannot provide. Commenters were concerned that retrofitting could adversely
affect vessel stability and affect the safe operation and functionality of the vessel. Commenters
174 AWO; Bay delta Maritime-1, Baydelta Maritime-2 (EPA-HQ-OAR-2023-0153-0049); Centerline Logistics-2;
Curtin Maritime; Kirby; PVA-2; San Francisco Bar Pilots Association; Seabulk; Shaver Transportation Company;
Vane Brothers-1; Vane Brothers-2; Brusco Tug & Barge.
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also expressed concern that the CARB validation process is inadequate to demonstrate reliability,
durability, and safety, and noted that EPA's commercial engine validation is more demanding.
EPA notes that to the extent safety is relevant to EPA's authorization criteria at all,
commenters failed to meet their burden through their general statements, lacking in detailed
technical reasons or justifications. Also, while these statements refer to retrofitting technology,
they ignore that the technology can be incorporated into a new vessel through its initial ship
design. CARB noted that their program does not supersede USCG safety requirements in Title
46 of the CFR, and that although USCG will "not have a direct role in implementing the
amendments [they] will need to verify that [the equipment is] properly installed . . . ,"175
Ultimately, vessel modifications will need to be approved by USCG and the ship's relevant
classification society for all aspects of design and safety including stability, trim characteristics,
buoyancy, structural design limits, fire protection requirements, and engine exhaust pipe and
engine exhaust cooling requirements.176 EPA believes that the approval of USCG—an expert
Federal agency charged by Congress with ensuring ship safety—is sufficient to avoid
unreasonable safety risks, including to address any potential issues with active DPF regeneration.
Commenters failed to articulate any detailed explanation as to why the USCG safety
requirements were insufficient in this context. EPA recognizes that CARB developed its
amendments in coordination with USCG and has updated its planned implementation in response
to input.177 In any event, any such concerns may be better directed to USCG.
175 CARB FSOR at 47 and 271.
116 Id.
177 See, e.g., CARB E.O. DE-24-003, available at https://ww2.arb.ca.gov/sites/default/files/2024-
09/Executive%20Qrder%20for%20Bvpass%20Svstems%20on%20VDECS%20for%20CHC%20-%20Final.pdf
(last visited December 19, 2024).
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In addition, even beyond USCG's safety process, CARB's process for DPF verification
includes durability requirements, compatibility with intended applications, and a demonstration
that there are no defects, and that the device will achieve the desired emissions reductions. CAA
section 209(e)(2)(A)(iii) does not require CARB's enforcement procedures to be identical to
EPA's procedures, only that they are consistent, which we interpret to mean that a manufacturer
can comply with both procedures with one vessel. EPA believes CARB has reasonably explained
its procedures, and these procedures avoid unreasonable safety risks,
vii. Vessel Categories
As noted above, CARB organized its CHC regulations according to various vessel
categories, all of which are distinguished from strict ocean-going vessels that are regulated under
other provisions.178 Some commenters raised concerns that articulated tug-barges ("ATBs") are
misclassified as ship assist tugboats even though they are substantially different and are operated
more like ocean-going tanker vessels.179 The tugs on these vessels are larger than ship-assist
tugs, purpose-built for inter-port shipping and ocean transport rather than intra-port service.
Commenters assert that these vessels perform most of their work offshore and compete with
ocean-going tankers. They operate not only with California, but also to and from the Gulf of
Mexico and other ports, as needed. As such, commenters claim they should be removed from the
harbor craft rule.
As we explain above, the statute does not allow EPA to deny an authorization based on
CARB's policy choices to prioritize regulation of certain vessel types over other vessel types. In
any event, CARB did provide a reasoned explanation for its decision to categorize and regulate
in this manner. CARB estimates that while tugs and barges make up approximately 1.2 percent
178 CARB CHC Authorization Support Document at 14.
179 Crowley; Curtin Maritime; Seabulk; Vane-Brothers-1; Vane Brothers-2.
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of all harbor craft by population,180 they contribute 10.1 percent of statewide diesel particulate
matter emissions in 2023 due to their size, operating profile, and other patterns. CARB thus
determined that it should subject these craft to the CHC regulations,
viii. Zero Emission and Advanced Technology ("ZEAT") Standards
Many commenters advocated for the benefit of incorporating ZEAT into CHC, and they
cited zero emissions vessels currently operating in RCW to demonstrate its feasibility.181 On the
other hand, one commenter disputed the feasibility of ZEAT in CHC, including that there is a
lack of zero emissions components and that USCG sea trials on a hydrogen-fueled vessel have
not yet been completed.182 Commenters also expressed concern that without industry
standardization of ship-to-shore electrical connections, requirements for ZEAT are premature.183
In its authorization request, CARB addressed the ZEAT requirements by citing multiple
zero-emissions or zero-emissions capable vessels presently operating in RCW.184 CARB also
cited the ongoing construction of a zero-emission tugboat. CARB stated that all cited vessels are
using battery electric technology and expect that most vessels will use battery electric technology
to meet the requirements, though CARB did note that hydrogen fuel cell technology for marine
applications is not as mature as battery electric technology. CARB also noted that it is "open to
reviewing ZEAT Credit or ACE Plan applications utilizing wind power and sailing strategies" as
a means of compliance.185 Furthermore, CARB stated that there are no issues with the technical
180 CARB Response to Comments, Master Response 3121-3 (pp.278-9).
181 E V Maritime, EPA-HQ-OAR-2023-0153-0059; Wind + Wing Technologies, Inc., EPA-HQ-OAR-2023-0153-
0060; Ocean Conservancy; Green City Ferries; SWITCH Maritime, public hearing testimony, EPA-HQ-OAR-2023-
0153-0029.
182 Angel Island-Tiburon Ferry.
183 EMA.
184 CARB CHC Authorization Request at 37-38.
185 CARB FSOR, p. 241. CARB caveats that "[s]ailboats in commercial operation often operate as excursion vessels
and are subject to the 2022 Amendments if they do not meet the definition of "Ocean-going vessel" or "Recreational
Vessel." Id. at 106.
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feasibility of installing shore-based charging or power requirements. CARB notes that though no
standard has been set for ship-to-shore electrical connections, functional connections do exist
and will continue to develop, confirming that it is already technically possible to power or charge
a ship from shore. In other words, given that companies are already purchasing, operating, and
recharging ZEAT within California, ZEAT is already feasible—notwithstanding future market or
regulatory developments that may further facilitate ZEAT deployment.
The ZEAT standards apply to new excursion vessels and new and in-use short-run ferries.
CARB notes that "[ojwners and operators of other categories of vessels may also elect to use
ZEAT."186 It also states that "voluntary ZEAT deployment may be eligible for regulatory
flexibility, such as additional compliance time on other vessels in the fleet, which would reduce
costs during the implementation period of 2023 to 2038."187
Commenters discussed grant availability and limitations on such funding for retrofitting
their vessels.188 Several raised concerns regarding existing funding sources, such as the use of
antiquated funding formulas that favor diesel-to-diesel conversions and ignore crew training that
is crucial for the transition to electric propulsion; limited availability of funds to privately-held
companies; insufficient support for micro businesses which require higher funding due to their
limited equity reserves; funds being disbursed only at the end of the project; and exclusion of
shoreside infrastructure. Commenters complained that whatever funding is available is
insufficient to cover the entire California commercial harbor craft fleet, applications require an
extensive amount of work, and grants require 20% matching funds. They claimed that grant
funds through the Infrastructure Investment and Jobs Act, Diesel Emissions Reduction Act, and
186 Id. at 109.
187 CARB SRIA at 55.
188 Angel Island-Tiburon Ferry; Green Yachts ("Green Yachts 2"), EPA-HQ-OAR-2023-0153-0058; Island Packers
Cruises; North Tahoe Cruises; PVA-2; Red and White Fleet.
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the Carl Moyer program are limited and highly competitive. Commenters also indicated the Carl
Moyer program gives priority to projects whose emissions reductions exceed requirements or
proceed in advance of regulatory deadlines. They were also concerned that California funding for
marine zero-emission projects, such as demonstration in core funding, is being cut according to a
"February 22 Legislative Analysis Office report" on the California 2023-2024 budget.189
CARB compiled and posted a list of available grants for CHC on their website.190
However, CARB did not consider the availability of grants for any vessel types while
considering the cost of the rule, and its cost analysis specifically states, "these costs do not
account for the use of any public grants or air quality incentive funding, which has typically been
widely used by the commercial fishing industry."191
CARB also suggested using compliance extensions, creating an alternative control of
emissions (ACE) plan, or using ZEAT credits to increase owner flexibility for complying with
the amendments. The El compliance extension provides up to two years additional time for
shore power and ZEAT infrastructure delays.192 The ACE plan allows fleets to use averaging or
other fleet-proposed methods to achieve equivalent fleet emission reductions. ZEAT credits are
also available for fleets to use in reducing their overall emissions.
EPA finds that technology exists to comply with the ZEAT standards. Battery-electric
technology has been demonstrated to be feasible on several vessels operating in California,
189 The cited report was mentioned in testimony. EPA cannot determine to what report the commenter referred and
therefore cannot respond in detail to this comment.
190 Funding Programs for Commercial Harborcraft, accessed December 18, 2024 at
https://ww2.arb.ca.gov/sites/default/files/2020-09/funding09302020.pdf. accessed December 18, 2024.
191 CARB CHC Authorization Support Document at 111.
192 EPA notes that to the extent certain requirements apply to sources other than mobile sources (such as potentially
the various registration and reporting requirements for facilities), those requirements may not be preempted by
section 209 and thus may not require authorization. See also CAA section 116. To the extent authorization is
required, EPA is authorizing the entire 2022 CHC Amendments, excepting certain in-use short-run ferry and
extension expiration provisions, as noted in Section V. of this document.
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including for installation and operation of the associated infrastructure. By contrast, commenters
did not provide evidence to show that new vessels, whether short run ferries or excursion vessels,
utilizing ZEAT present an excessive incremental cost or insufficient lead time over new vessels
utilizing diesel or other non-ZEAT technology. Opponents therefore did not meet their burden to
prove that CARB's amendments do not provide sufficient lead time considering cost of
compliance. EPA is not acting on the ZEAT requirements for in-use short run ferries.
Commenters' concerns over the cost of retrofit/replacement for short run ferries are therefore
beyond the scope of EPA's decision,
ix. Test Procedures
One commenter expressed concerns with opacity testing for engines equipped with
water-cooled marine exhaust. Because wet exhaust has less particulate matter than dry exhaust,
they claim that the results of the test will not be accurate. Also, the commenter warns that the test
could create hazardous conditions on the boat because the "rates of acceleration, speed, and
distance required are not at all similar to real world operations." 193
CARB addressed water-cooled exhaust by stating that the test procedure, which is
adopted from SAE J1667, is to measure the opacity of the exhaust after the DPF (if equipped),
but before the muffler or any seawater injection.194 In any case, EPA's role under CAA section
209(e) with respect to test procedures is to determine whether CARB's procedures are
inconsistent with federal test procedures. Since the commenter did not identify any test
procedure concerns that would be inconsistent with federal test procedures, EPA cannot deny the
authorization on that basis.
193 Island Packers Cruises.
194 CARB ISORatIII-19.
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d. California's 2022 CHC Amendments Are Consistent with CAA Section 202(a)
After a review of the record, information, and comments received in this proceeding,
EPA has determined that the opponents of the authorization request for CARB's 2022 CHC
Amendments have not demonstrated that these regulations are inconsistent with CAA section
202(a).
As explained, CARB's authorization request establishes that control technology either
presently exists or is technologically feasible but still under development for marine applications.
To address technology that is still under development, CARB provides lead time, by application,
for owners and operators through available extensions.195 First, two-year, renewable compliance
extensions are available if vessel owners or operators can demonstrate that no certified engines
or DPFs are available to meet the performance standards by specified compliance dates (E2
extension). Second, owners or operators of all categories of in-use CHC are eligible for a limited
number of compliance extensions if they demonstrate that no suitable engines or DPFs can
physically fit within existing vessels without compromising the vessels' structural integrity,
stability, or passenger capacity, and that replacing the in-use vessels with new compliant vessels
equipped with compliant engines is not financially possible (E3 extension). In addition, the 2022
CHC Amendments provide flexibilities to account for equipment manufacturer delays or
installation difficulties (E5 extension), or for infrastructure delays associated with shore power
195 EPA evaluates the lead time associated with CARB's regulation by examining the date of CARB's adoption of
the regulation and when regulated parties are required to meet the regulation. EPA is guided both by the amount of
lead time provided and by the principles set forth in cases such as Natural Resources Defense Council and
International Harvester. EPA finds no evidence in the record that vessel owners and operators are unable to comply
with CARB's requirements that EPA is including in this authorization. Given the statutory scheme, the EPA
Administrator is to give very substantial deference to California's judgments. See Natural Resources Defense
Council v. EPA, 655 F.2d 318, 331 (D.C. Cir. 1981) ("Given this time frame [a 1980 decision on 1985 model year
standards], we feel that there is substantial room for deference to the EPA's expertise in projecting the likely course
of development."). See also International Harvester v. Ruckelshaus, 478 F 2d. 615, 640 (D.C. Cir. 1973) ("We are
inclined to agree with the Administrator that as long as feasible technology permits the demand for new passenger
automobiles to be generally met, the basic requirements of the Act would be satisfied, even though this might
occasion fewer models and a more limited choice of engine types.").
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for ZEAT vessels (El extension). Unlimited extensions are also available in cases of limited
operating hours of an engine (E4 extension).
EPA agrees with CARB that these extensions ensure that lead time is sufficient for the
development and application of the technology needed to comply with CARB's standards.
Consistency with CAA section 209(B)(1)(C) requires that California provide lead time
"necessary to permit the development and application of the requisite technology, giving
appropriate consideration to the cost of compliance within such period."196 Under the E2
extension, in-use standards will not be effective against owners and operators unless required
technology is certified and available for their vessel. Even then, the standards will still not be
effective, under the E3 extension, while needed technology cannot be applied to the particular
vessel and replacing the vessel is not financially possible. Given the relatively limited scope of
CHC at issue, EPA finds this concept consistent with giving sufficient lead time. And as noted
above, EPA gives substantial deference to the policy judgments California has made in adopting
its regulations. Opponents have not met their burden to show that CARB's use of extensions for
vessels' compliance dates is insufficient to provide the required lead time. Therefore, based on
the record, EPA is granting CARB an authorization for the 2022 CHC Amendments as they
apply to owners/operators of in-use vessels for the portion of the regulations applicable through
the applicable extension time periods.
EPA is not acting on two aspects of the request: (1) requirement for vessel replacement at
the expiration of E3 extensions, and (2) in-use short-run ferry retrofit/repower.
IV. Other Issues
196 CAA section 202(a)(2). As noted above, EPA authorized CARB's existing CHC regulations which included
compliance extensions. 76 FR at 77526.
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EPA has long construed CAA section 209 as limiting the Agency's authority to deny
California's requests for waivers and authorizations to their respective three listed criteria under
section 209(b) and section 209(e)(2)(A). This narrow review approach is supported by decades
of waiver and authorization practice and judicial precedent. InMEMA /, the D.C. Circuit held
that the Agency's inquiry under section 209(b) is "modest in scope."197 The D.C. Circuit further
noted that "there is no such thing as a 'general duty' on an administrative agency to make
decisions based on factors other than those Congress expressly or impliedly intended the agency
to consider.198 InMEMA //, the D.C. Circuit again rejected an argument that EPA must consider
a factor outside the 209(b) statutory criteria concluding that doing so would restrict California's
ability to "exercise broad discretion."199 EPA's duty, in the authorization context, is thus to grant
California's authorization request unless one of the three listed criteria is met. "[SJection 209(b)
sets forth the only waiver standards with which California must comply . . . If EPA concludes
that California's standards pass this test, it is obligated to approve California's waiver
application."200 EPA has therefore consistently declined to consider factors outside the three
statutory criteria listed in section 209(b) and 209(e)(2)(A).
EPA received comments that were outside the scope of the considerations involved in
EPA evaluation of CARB's authorization requests under CAA section 209(e)(2)(A). Several
commenters called on EPA to deny a waiver authorization for the 2022 CHC Amendments based
on the rule being "arbitrary and capricious." Reasons include each of the compliance extensions
not being equally available to all vessel categories, the use of inaccurate vessel population data
for the estimated benefits calculations, inconsistencies between the 2008 rule and the 2022
197 MEMA I, 627 F.2d at 1105.
198 Id. at 1116.
199 Motor Equipment Manufacturers Association v. Nicols (MEMA II), 143 F.3d 449, 453 (D.C. Cir 1998).
200 Id. at 463.
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amendments that require replacement of engines prior to the end of their useful life, and lack of
small business provisions.201 These commenters interpret the "arbitrary and capricious" language
in section 209(e) as meaning CARB's action may not be arbitrary and capricious. However, that
language only applies to CARB's protectiveness determination under the first authorization
criterion described in Section III.A, above, and EPA only reviews CARB's protectiveness
determination under the first prong to determine whether it is arbitrary and capricious. Rather
than otherwise broadly examining CARB's CHC amendments for any indications of being
arbitrary and capricious, EPA's authorization review role is more limited.
EPA received a comment that claimed the 2022 CHC Amendments are arbitrary and
capricious with respect to cruise ship lifeboats, for two reasons.202 First, the commenter noted
that CARB's previous rule did not cover lifeboats and CARB did not inform the cruise industry
that the CHC amendments would now apply to cruise ship lifeboats that are also used as
passenger "tender boats" until after the rule was adopted.203 Second, the commenter noted that
cruise ship lifeboats are covered by international regulations (International Convention on the
Safety of Life at Sea (SOLAS), and the Life Saving Appliances Code (LCA Code)), and these
international obligations prohibit the use of higher grades of biofuels than B7 for safety reasons
(e.g., risk of losing horsepower).204
201 See, e.g., The Van Brothers Company, EPA-HQ-OAR-2023-0153-0027; Saltchuk Marine ("Saltchuk"), EPA-
HQ-OAR-2023-0153-0028; Cruise Lines International Association ("CLIA"), EPA-HQ-OAR-2023-0153-0032;
Seabulk; Kirby; Staite; AWO; Crowley. For discussion of each discrete issue identified by commenters to support
their "arbitrary and capricious" contention, see Section III. of this document.
202 Cruise Lines International Association (CLIA), EPA-HQ-OAR-2023-0153-0032.
203 A "tender boat" is a boat that carries passengers and/or supplies between a larger boat and shore facilities when
the large boat is not at berth. Lifeboats on cruise ships are often large enough to use as tender boats to ferry
passengers to and from shore.
204 While CLIA did not provide a source for this requirement, they may be referring to Resolution MEPC.320(74),
2019 Guidelines for Consistent Implementation of the 0.50% Sulphur Limit under MARPOL Annex VI (adopted May
2019). Paragraph 3.2 states: ".. .3.2.4 Manufacturers of engines and equipment like oily water separators, overboard
discharge monitors, filters, coalescers etc. need to be consulted to confirm the ability of engines and equipment to
handle biodiesel blends up to B7 (i.e., 7.0% v/v). 3.2.5 It is recommended to avoid using such biodiesel blend fuels
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With respect to the comments received alleging the CARB rule is arbitrary and
capricious, EPA's role is not to review CARB's state rulemaking process to determine whether
CARB complied with California state law, including the California Administrative Procedure
Act. Similarly, EPA's role is not to provide guidance to parties regulated by CARB's regulations
or to clarify whether the CARB regulations cover a particular mobile source type, such as
lifeboats that may be used as passenger tender boats.205 CARB is responsible for the various
tasks and decisions regarding the implementation and enforcement of its regulations, and
questions related to the applicability of the program to specific types of boats should be
addressed to directly to CARB. EPA did not receive comments that claimed or provided
evidence that this type of vessel could not meet applicable emission standards.
With regard to the comment on the inconsistency between CARB's renewable diesel fuel
requirement and international regulations such as SOLAS and the LCA Code, this appears to be
a question about whether these international requirements affect the enforceability of CARB's
regulation, especially for lifeboats. EPA's section 209 review does not incorporate such other
laws within its scope. Whether fuel requirements fall under the purview of such provisions is
therefore beyond EPA's inquiry in this matter. With respect to the CAA section 209(e) scope of
preemption, it pertains to standards relating to the control of emissions from nonroad engines and
nonroad vehicles and does not pertain to fuels or whether fuel regulations are preempted by
section 209.206 CARB's fuel regulations are not before EPA for authorization nor are included in
this Decision Document. Therefore, we cannot deny the authorization on this basis.
for lifeboat engines, emergency generators, fire pumps, etc. where it is stored in isolated individual unit fuel tanks
and subjected to conditions for accelerated degradation."
205 EPA notes that the definition of dedicated emergency use vessels, such as lifeboats, is set forth at Cal. Code
Regs, title 17, § 93118.5(d) as adopted in 2022.
206 See 40 C.F.R. part 1074, app. A to subpart A ("EPA believes that states are not precluded under 42 U.S.C. 7543
from regulating the use and operation of nonroad engines, such as regulations on. . . sulfur limits on fuel. .. .").
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EPA received other comments about the 2022 CHC renewable diesel fuel requirement,207
which requires that beginning January 1, 2023, ship operators may use only R100 fuel or R99
fuel blend.208 Commenters were concerned that the required renewable diesel is not available at
local fuel docks and bunker providers may choose to not provide this new product, and that
vessels that operate outside of California may not be able to purchase it for the return trip to
California ports.
As noted above, fuel requirements are not before EPA for authorization consideration.
Nonetheless, EPA notes that CARB provides two exemptions from the fuel requirements;209 in
both cases, CARB specifies that the fuel must use either EPA on-highway diesel or EPA nonroad
diesel instead. First, if an owner has an existing fueling contract that cannot be modified to
supply R100 or R99, the owner is not required to use R100 or R99 until the contractual issue is
resolved or December 31, 2025, whichever occurs first. The vessel owner or operator must
provide a copy of the documentation (such as the contract). Second, a harbor craft returning to
California from a port located outside of California does not have to use R100 or R99 if that fuel
is not available. The vessel owner or operator must retain records documenting the fuel purchase,
the location and the name of the non-California port, and its lack of availability of R100 or R99
fuel. These records must be retained for a minimum of three years after the purchase of the fuel
and must be made available to the Executive Officer on request. EPA considers these two
provisions to fully address the commenters' fuel availability issues and, in any case, these issues
are not before EPA for consideration in this authorization proceeding.
207 Cal. Code Regs, title 17, § 93118.5(e)(7).
208 See, e.g., Island Packers Cruises; Seabulk.
209 Cal. Code Regs, title 17, § 93118.5(e)(7)(B).
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EPA received comments on procedural issues with CARB adopting the 2022 CHC
Amendments regarding the speed of the rulemaking process and CARB's ability to finalize
and/or enforce the 2022 CHC Amendments before EPA provides a waiver authorization.210 EPA
also received comment that the 2022 CHC Amendments are in conflict with the prior rule
adopted in 2008 because the previous rule stated that engines would not need to be replaced over
the life of the vessel if the engines of the vessels were updated to the contemporary (Tier 2)
standards.211 The CAA section 209(e)(2)(A) criteria do not allow EPA to deny a waiver based on
our judgments regarding CARB's compliance with the California regulatory process, including
issues with respect to purported inconsistency with a previous rulemaking that applies to in-
service vessels. The 2022 CHC Amendments were adopted on July 21, 2022. As part of
subsequent modifications made to the program, CARB filed a Request for an Early Effective
Date Pursuant To Government Code Section 11343.4(b)(3), dated November 14, 2022,
explaining why it was necessary to retain the January 1, 2023 effective date.212 EPA notes that
though CARB may adopt its regulations before an EPA authorization, enforcement may only
begin once EPA issues the authorization. Lead time is measured by the date of adoption of
applicable emission standards in California, not by subsequent action by EPA.213 EPA notes that
CARB issued an Implementation Fact Sheet dated December 23, 2022, which sets out the key
210 The Vane Brothers Company ("Vane Brothers-1"), EPA-HQ-OAR-2023-0153-0027; Vane Brothers Company
("Vane Brothers-2"), EPA-HQ-OAR-2023-0153-0050; Truck and Engine Manufacturers Association ("EMA"),
EPA-HQ-OAR-2023 -0153 -003 5.
211 Island Packers Cruises; Kirby.
212 Request for an Early Effective Date Pursuant To Government Code Section 11343.4(b)(3).
(https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2021/chc2021/eed.pdf, accessed December 18, 2024).
213 88 FR 24411, 24415 (April 20, 2023); 59 FR 36969, 36981-82 (July 20, 1994) (establishing that "lead time" is
measured from when California adopts its regulations). Without reopening our regulations, EPA notes that CAA
section 209(e)(2) is implemented in 40 CFR part 1074, subpart B. EPA's authorization for CARB's request removes
preemption from CARB's regulations, allowing their enforcement.
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compliance dates.214 With regard to the consistency with the earlier rule, the earlier provision in
CARB rule section 93118.5(e)(6)(C)(l) stated, "Once the in-use engine has been replaced with
an engine that is U.S. EPA-certified to meet Tier 2 or Tier 3 marine or off-road emission
standards, as set forth above, the engine is deemed to be in compliance with this subsection
(e)(6) and no further replacements of this engine are required under this subsection." This
statement applies to only subsection (e)(6) and not to section 93118.5(e) generally.
Commenters claimed various adverse impacts the program will have on port operations if
vessels must be withdrawn from service. One commenter stated without the services their ships
provide, "ships bringing critical goods into California ports would not be fueled for their next
voyages, terminals and refineries would cease to have marine transportation to operate, and the
overall impact to the domestic supply-chain would be disastrous."215 Another commenter
expressed concern that current alternate power capabilities for tugs are not enough to accomplish
critical jobs for supply chain operation, including oil spill prevention and rescuing ships that
break down offshore.216 One commenter warned that many small businesses could be forced out
of business and the marine industry would suffer as a whole, resulting in a negative on port
economics without addressing the air pollution problem.217 In addition, a commenter noted that
small businesses are critical for the marine sector by providing entry positions for most mariners
and "[i]f the small business sector is wiped out, the development of maritime personnel will
suffer and the entire industry will be in jeopardy."218
214 See CHC Implementation Timeline Fact Sheet ADA 4.2.23 at https://ww2.arb,ca.gov/resources/fact-sheets/chc-
factsheet-implementation-timeline (accessed December 18, 2024).
215 Centerline Logistics-2.
216 Baydelta Maritime-2.
217 San Diego Working Waterfront; Westar Marine Services (the future of their women-owned small business is at
stake).
218 Staite.
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CARB addresses these concerns by noting that owners/operators may recover costs
through increased prices and fares and take advantage of extensions when additional compliance
time is required. It also predicts that only a limited number of vessels would be replaced under
the 2022 CHC Amendments.
Finally, EPA received comments recommending changes to the CARB program.219 These
recommendations include to extend the compliance deadlines (to 2027 to 2037, depending on
year of engine, instead of 2024 to 2029) and even later for barges, dredges, crew and supply
vessels, and workboats (2036 to 2042 instead of 2026 to 2029); reduce the burden of proof for
demonstrating technical infeasibility and allow operators 18 months to complete a DPF retrofit;
allow additional time before enforcement actions are taken; and revise the definition of "short
run ferry." However, these comments do not relate to the CAA section 209 criteria. EPA may
only grant or deny authorization for CARB's waiver request; it cannot dictate certain changes to
the program. Therefore, EPA cannot deny the authorization on this basis.
219 See, for example, Staite; AWO; Crowley; Curtin Maritime; Angel Island-Tiburon Ferry; Green Yachts 2.
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V. Decision
After evaluating CARB's amendments to its Commercial Harbor Craft regulations
described above, EPA is granting California authorization to enforce the 2022 CHC
Amendments as requested, but with the following exceptions: (a) EPA is not taking any action
on the ZEAT standards for in-use short run ferries, and (b) EPA is not taking any action on the
standards for in-use engines and vessels (excluding commercial fishing vessels) that would apply
after the expiration of the feasibility extensions when an engine or DPF is not feasible and the
owner cannot afford vessel replacement (E3 extensions). Nonetheless, California is authorized to
enforce provisions related to VDECS that are installed on any in-use vessel at any time.
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Table 2: Summary of EPA's Authorization Decision for Engine Emission Requirements
(93118.5(e))
Section
Regulation
Decision
All Harbor Craft (Excluding
Commercial Fishing Vessels) -
Requirements for New and Newly-
Acquired Engines (Applicable On
and After January 1, 2023)
CCR Title 13, Section
93118.5(e)(8)
EPA-Approved
All Harbor Craft (Excluding
Commercial Fishing Vessels) -
Requirements for New and Newly-
Acquired In-Use Harbor Craft
(Applicable On and After January
1, 2023)
CCR Title 13, Section
93118.5(e)(9)
EPA-Approved
Requirements for Zero-Emission
and Advanced Technologies
(ZEAT): For New, Newly-
Acquired and In-Use Short-Run
Ferries, and New and Newly-
Acquired Excursion Vessels
(Applicable On and After January
1, 2023)
CCR Title 13, Section
93118.5(e)(10)
EPA-Approved - Specific to new
and newly-acquired short-run
ferries and excursion vessels
EPA-No decision - Specific to in-
use short-run ferries
ZEAT Credit for Early or Surplus
Deployments (Applicable On and
After January 1, 2023)
CCR Title 13, Section
93118.5(e)(ll)
EPA-Approved
In-Use Engines and Vessels
(Excluding Commercial Fishing
Vessels) - Requirements for
Meeting Performance Standards
(Applicable On and After January
1, 2023)
CCR Title 13, Section
93118.5 (e)(12)(A)
through (e)(12)(D)
EPA-Approved - Prior to expiration
of available extension renewals
defined under CCR Title 13, Section
93118.5 (e)(12)(E)(3)*
EPA-No decision - After expiration
of available (E)(3) extension
renewals for any vessel that received
an extension under CCR Title 13,
Section 93118.5 (e)(12)(E)(2) or
(E)(3)*
CCR Title 13, Section
93118.5 (e)(12)(E)
through (e)(12)(F)
EPA-Approved
Engine Requirements on
Commercial Fishing Vessels
CCR Title 13, Section
93118.5 (e)(13)
EPA-Approved
Low-Use Exemptions
CCR Title 13, Section
93118.5(e)(14)
EPA-Approved
* Note that extensions E2, E4, and E5 are unlimited, and El applies only to ZEAT.
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Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA.
Petitions for judicial review of this action must be filed within 60 days from the date notice of
this final action is published in the Federal Register.
VI. 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, etseq., 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).220
Dated: January 6, 2025
Acting Administrator.
220 The U.S. Government Accountability Office (GAO) has issued a decision (in the context of its review of EPA's
SAFE I Reconsideration decision) that the Congressional Review Act does not include adjudicatory orders and also
excludes certain categories of rule from coverage, including rules of particular applicability. As part of this decision,
the GAO also determined that even if the SAFE I Reconsideration waiver action were to satisfy the Administrative
Procedure Act's definition of a rule, it would be considered a rule of particular applicability, and, therefore, would
still not be subject to the CRA's submission requirement, https://www.gao.gov/products/b-334309.
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