[Federal Register Volume 65, Number 224 (Monday, November 20, 2000)]
[Notices]
[Pages 69763-69767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29500]
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ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-6902-9]
California State Nonroad Engine and Vehicle Pollution Control
Standards; Notice of Within the Scope Determinations
AGENCY: Environmental Protection Agency.
ACTION: Notice Regarding Within the Scope Determinations.
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SUMMARY: EPA today has determined that certain amendments to the
California regulations for standards and test procedures for; utility
and lawn and garden engines (ULGE Rule); heavy-duty non-road engines
and vehicles (HDNR Rule); and nonroad recreational vehicles and engines
(NRRV Rule), are within the scope of the previous authorizations of
Federal preemption granted to California for its three nonroad rules
pursuant to section 209(e) of the Act.
DATES: Any objections to the findings in this notice regarding EPA's
determination that California's amendments to its regulations for test
procedures for nonroad engines and vehicles are within the scope of
previous authorizations must be filed by December 20, 2000. Otherwise,
at the end of this 30-day period, these findings will become final.
Upon receipt of any timely objection, EPA will consider scheduling a
public hearing to reconsider these findings in a subsequent Federal
Register notice.
ADDRESSES: Any objections to the within the scope findings described
above should be filed with Robert Doyle at the address noted below. The
Agency's decisions as well as all documents relied upon in reaching
these decisions, including those submitted by the California Air
Resources Board (CARB), are available for public inspection in the Air
and Radiation Docket and Information Center during the working hours of
8:00 a.m. to 4:00 p.m. at the Environmental Protection Agency, Air
Docket (6102), Room M-1500, Waterside Mall, 401 M Street, SW.,
Washington, DC 20460, Tel. (202) 260-7549. The Dockets included in
these determinations are as follows: Docket A-2000-05--ULGE Rule--
Certification and Implementation Amendments; Docket A-2000-06--ULGE
Rule and HDNR Rule--Military/Tactical Vehicles and Engines Exemptions
Amendments; Docket A-2000-07--ULGE Rule--CO Standards Revisions
Amendments; Docket A-2000-08--ULGE Rule--Snowthrowers & Ice Augers
Certification Options Amendments; NRRV Rule--Speciality Vehicle CO
Standards Revision Amendments.
Copies of the Decision Document for these determinations can be
obtained by contacting Robert Doyle as noted below, or can be accessed
on the EPA Office of Mobile Sources Internet Home Page, also noted
below.
FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor,
Certification and Compliance Division (6403J), U.S. Environmental
Protection Agency, 1200 Pennsylvania, NW., Washington, DC 20460.
Telephone: (202) 564-9258, FAX:(202) 565-2057, E-Mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Obtaining Electronic Copies of Documents
Electronic copies of this Notice and the accompanying Decision
Document are available via the Internet on the Office of Transportation
and Air Quality (OTAQ) Home Page (http://www.epa.gov/OTAQ. Users can
find these documents by accessing the OTAQ Home Page and looking at the
path entitled ``Chronological List of All OTAQ Regulations.'' This
service is free of charge, except for any cost you already incur for
Internet connectivity. The official Federal Register version of the
Notice is made available on the day of publication on the primary Web
site (http://www.epa.gov/docs/fedrgstr/EPA-AIR/).
Please note that due to differences between the software used to
develop the documents and the software into which the documents may be
downloaded, changes in format, page length, etc. may occur.
II. Within the Scope Determinations for Amendments to Previously
Authorized Nonroad Standards and Procedures
As noted above, CARB has requested that EPA confirm its
determinations that the various amendments contained in its requests
are within the scope of the authorizations previously granted by EPA
for the various CARB nonroad rules. This within the scope determination
concept originated in EPA's historical procedures for review of CARB
onroad standards waiver requests. Early in the history of the
[[Page 69764]]
motor vehicle waiver program, CARB submitted to the Agency amendments
to standards and regulations which had already received a waiver.
Because these amendments did not fundamentally alter the standards
which had received the waiver, EPA determined that the amendments did
not have to be treated as a request for a new waiver, and therefore,
EPA did not have to offer the opportunity for a public hearing before
its review of the request (as section 209(b) requires for new waiver
requests). Rather, EPA reviewed the amendments, found them to be
covered by the previous waiver and issued a determination to that
effect.\1\ Subsequently, EPA formulated a within the scope standard of
review as follows:
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\1\ The first ``within the scope'' determination resulted from
EPA placing a condition on the original waiver granted for
California's Assembly Line Testing on August 31, 1971. EPA stated
that the ``waiver shall not prohibit California from adopting
modifications of the presently proposed assembly line test and
associated numerical standards where such modifications are designed
to improve correlation with certification standards and test
procedures or where California determines that the objectives of the
assembly line teat requirement can be satisfied at reduced cost to
the consumer.'' In CARB's follow-up request, EPA determined that the
condition it had placed on the earlier waiver had been satisfied and
thus found California's amendments to ``exist within the meaning and
intent of the (earlier) waiver.'' 37 Fed. Reg. 14831 (July 25,
1972).
If California acts to amend a previously waived standard or
accompanying enforcement procedure, the change may be included
within the scope of the previous waiver if it does not undermine
California's determination that its standards, in the aggregate, are
as protective of public health and welfare as comparable federal
standards, does not affect the consistency of California's
requirement with section 202(a) of the (Act), and raises no new
issues affecting the Administrator's previous waiver
determination.\2\
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\2\ 51 FR 12391 (April 10, 1986).
Although CARB has received authorizations for various sets of its
nonroad standards on three separate occasions, the requests covered in
this Notice are the first ones submitted by CARB for EPA to consider
under a WIS approach. For these nonroad WIS requests, CARB has
recommended that ``(f)or reasons of consistency and administrative
efficiency, the U.S. EPA should similarly find that amendments to
California nonroad regulations, for which authorizations have
previously been granted, can be found to be within the scope of the
existing authorizations. That is, if the criteria referenced in (the
excerpt above) are satisfied as they relate to amendments of nonroad
regulations, the Administrator should find the nonroad amendments to be
within the scope of existing authorizations.'' CARB also noted that,
for nonroad within the scope requests, the findings that CARB must
make, and the analysis EPA must perform on these findings, is not
significantly different than the CARB and EPA tasks in the nonroad
authorization process.\3\
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\3\ See, e.g., letter form James D. Boyd, Executive Officer,
CARB, to Carol M. Browner, Administrator, EPA, dated March 27, 1996,
Docket A-2000-05, Entry II-D-1.
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Regarding EPA's oversight role for nonroad WIS requests, EPA's
regulations which implement section 209(e) do not specifically cover
situations in which CARB requests approval for amendments to its
authorized standards for nonroad engines. EPA has declared previously,
however, that it would interpret section 209(b) (onroad waiver
requests) and section 209(e) (nonroad authorization requests) similarly
where the language is similar.\4\ EPA finds that the appropriate
procedure for analysis and review of nonroad amendments WIS requests
would be the same basic review and analysis and review used for onroad
amendments WIS requests. Accordingly, EPA will use the within the scope
criteria analysis currently used in the motor vehicle waiver program
for application to requests from California regarding amendments to
previously authorized nonroad standards and requirements. Specifically,
if California acts to amend a previously authorized standard or
accompanying enforcement procedure, the amendments may be considered
within the scope of a previously granted authorization provided that it
does not undermine California's determination that its standards in the
aggregate are as protective of public health and welfare as applicable
Federal standards, does not affect the consistency with section 209 of
the Act,\5\ and raises no new issues affecting EPA's previous
authorization determination.
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\4\ This position was expressed in the Preamble to the
publication of the final regulations implementing section 209(e) of
the Act. See Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards, 59 Fed. Reg. 36969, 36982
(July 20, 1994).
\5\ EPA has interpreted the requirement regarding whether
``California standards and accompanying enforcement procedures are
not consistent with section 209'' to mean that California standards
and accompanying enforcement procedures must 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 motor vehicle
waivers. In Order to be consistent with section 209(a), California's
nonroad standards and enforcement procedures must not apply to new
motor vehicles or new motor vehicle engines. Secondly, California's
nonroad standards and enforcement procedures must be consistent with
section 209(e)(1), which identifies the categories permanently
preempted form state regulation. California's nonroad standards and
enforcement procedures would be considered inconsistent with section
209 if they applied to the categories of engines or vehicles
identified and preempted from State regulation in section 209(e)(1).
Finally, and most importantly in terms of application to nonroad
within the scope requests such as these, because California's
nonroad standards and enforcement procedures must be consistent with
section 209(b)(1)(C), EPA will review nonroad authorization requests
under the same ``consistency'' criteria that are applied to motor
vehicle waiver requests. Under section 209(b)(1)(C), the
Administrator shall not grant California a motor vehicle waiver if
she finds that California ``standards and accompanying enforcement
procedures are not consistent with section 202(a)'' of the Act. As
previous decisions granting waivers of Federal preemption for motor
vehicles have explained, State standards are inconsistent with
section 202(a) if 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
if the Federal and State test procedures impose inconsistent
certification requirements.
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III. The California Requests
I have determined that certain amendments to the California
regulations for standards and test procedures for 1) utility and lawn
and garden engines (ULGE Rule), 2) heavy-duty non-road engines and
vehicles (HDNR Rule), and 3) nonroad recreational vehicles and engines
(NRRV) Rule), are within the scope of the previous authorization of
Federal preemption granted to California for its three nonroad rules
pursuant to section 209(e) of the Act. These amendments, which are in
four separate requests from California, and are described below,
address various implementation and certification concerns that had
arisen since California adopted these rules.
(A) CARB Nonroad Certification and Implementation Amendments
By letter dated March 27, 1996, CARB notified EPA that it has
adopted numerous amendments to its ULGE Rule which were first approved
by CARB at a public hearing on July 28, 1994. These amendments
specifically addressed some implementation and certification concerns
and also served to align CARB's Rule with the EPA Small Nonroad Engine
Rule and with the utility engine practices adopted by international
standards organizations. Some of these amendments which pertained to
petroleum-based certification fuels were adopted expeditiously, on
August 29, 1994, at the request of manufacturers who wanted to certify
their test engines with the alternative Phase II fuel for 1995 calendar
year production. The remaining amendments in this package were adopted
by CARB on May 26, 1995.
These amendments, according to CARB, sprang from communications
[[Page 69765]]
between CARB staff and the regulated industries which identified areas
in both the enforcement provisions and the test procedures that needed
clarification. Additionally, CARB notes, the amendments serve to modify
test procedures to better reflect industry practice and to be more
consistent with Federal and international procedures.
These amendments to the regulations accomplish the following:
--The definition of ``engine family'' was revised and new
definitions were adopted for ``basic engine,'' ``engine model,'' and
some related terms to provide manufacturers with greater flexibility
in identifying engine families for certification testing.
--The regulations regarding emission control labels for these
engines were revised to clarify who must attach the initial label
and the supplemental label (which is required only if the initial
label is obscured when installed in or on equipment), and the
regulation requiring a fuel label on these engines was repealed
because it was deemed unnecessary.
--The regulations regarding emission warranties were revised to make
clear the warranty responsibility remains with the engine
manufacturer even when the engine is labeled with the equipment
manufacturer's name or trademark.
--The regulations regarding Assembly-Line Quality-Audit (ALQA) test
procedures, which were originally based on the on-road program, were
amended to better suit utility engine production practices, such as
establishing new procedures for dealing with low-volume productions
more typical to the utility engine production.
--The regulations regarding new engine compliance procedures, which
allow CARB to perform emission testing on new engines at any point
in the manufacturer's distribution process (including at retail
stores), were based on the on-road program. The amendments to these
regulations are designed to address properly the circumstances
unique to utility engines.
--The regulations regarding manufacturer penalties were amended to
clarify the specific liabilities of engine manufacturers and
equipment manufacturers to be enjoined from the sale of noncomplying
products. This will cover situations where an engine manufacturer
sells an incomplete engine to an equipment manufacturer who uses
inappropriate components in assembling the finished engine and thus
produces a noncomplying engine.
--The regulations regarding test procedures generally serve to bring
the California test procedures into closer conformity with the EPA
Small Engine Rule test procedures, and also offer manufacturers some
flexible options relative to alternative fueled engine
certification, gasoline certification test fuels, and diesel-cycle
engine family categorization. Finally, amendments were added
regarding tamper resistance of adjustable engine parameters based on
the corresponding regulations in the on-road program.
CARB has requested that EPA ``confirm the ARB's determination that
these amendments fall within the scope of the Clean Air Act section
209(e)(2) authorization for the adoption of the Utility Regulations
that was granted by (EPA) on July 5, 1995.'' \6\
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\6\ Letter from James D. Boyd, Executive Officer, CARB, to Carol
M. Browner, Administrator, EPA, dated March 27, 1996, Docket A-2000-
05, Entry II-D-1.
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(B) CARB Nonroad Military Tactical Vehicle Exemptions Amendments
By letter dated October 7, 1996, CARB notified EPA that it has
adopted amendments to its ULGE Rule and HDNR Rule which were first
approved by CARB at a public hearing on December 14, 1995. CARB amended
Title 13, California Code of Regulations, sections 2400 and 2420 to
exempt engines used in off-road military tactical vehicles and
equipment from the applicable standards and regulations contained in
(respectively) the ULGE Rule and the HDNR Rule. CARB took this step to
align the California regulations with the corresponding Federal
regulations.
Specifically, CARB exempted from the ULGE Rule and HDNR Rule any
engines used in off-road military vehicles or equipment which have been
exempted from EPA regulation under a ``national security exemption
(NSE).'' Under the EPA rules applicable to small spark-ignition engines
and large nonroad diesel engines, an NSE is available to a manufacturer
of nonroad engines used in military applications.\7\ CARB also exempted
from the ULGE Rule and HDNR Rule any nonroad military tactical vehicles
or equipment which has received a Federal certificate of conformity
under the EPA Small Engine Rule. CARB took this step to cover certain
vehicles or equipment which may be commercially available with Federal
certification, but fall within CARB's definition of ``military tactical
vehicles or equipment.'' This step, CARB states, will further ensure
that the military will not be required to create a separate California
fleet.
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\7\ See, respectively, 40 CFR Sec. 90.908 (1998) and 40 CFR
Sec. 89.908 (1998).
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CARB has requested that EPA ``confirm the ARB's determination that
the adopted provisions fall within the scope of the * * * previous
authorizations that have been granted for off-road vehicles and
equipment under 209(e)(2) of the CAA.'' \8\
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\8\ Letter from Michael P. Kenny, Executive Officer, CARB, to
Carol M. Browner, Administrator, EPA, dated October 7, 1996, (``CARB
request letter'') Docket A-2000-06, Entry II-D-1. This WIS request
from CARB also asked EPA to confirm its determination that some
amendments dealing with national security exemptions for on-road
motor vehicles are within the scope of previous waivers granted
under section 209(b). This particular request will be addressed in a
forthcoming proceeding.
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(C) CARB Nonroad Tier I Carbon Monoxide Standard Revision for Class 1
and 2 Engines
By letter dated October 9, 1996, CARB notified EPA that it has
amended its regulations setting the Tier I carbon monoxide (CO)
standard for class 1 and 2 nonroad engines, by revising the standard
from 300 grams per brake horsepower-hour (g\bhp-hr) to 350 g\bhp-hr.
This amendment was adopted by CARB in January 1996 after CARB received
a July 1995 petition from the Briggs & Stratton Corporation (B&S)
asking for this change. The company, a manufacturer of small engines
used primarily in lawnmowers, requested that CARB relax its original CO
standard because of technical difficulties in two of its largest engine
models with in-use performance when the engines of these families were
calibrated to comply with the 300 g\bhp-hr standard. B&S had indicated
to CARB that, in fact, because of potential warranty claim liability
and damage to its corporate reputation, the company would not certify
these two models under the original standard. If this occurred, CARB
noted that the low cost, high volume segment of the utility engine
market would not be available to California buyers.\9\
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\9\ Staff Report: Initial Statement of Reasons for Proposed
Rulemaking, Docket A-2000-07, Entry II-D-2, p. 4.
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The petition requested that the CARB standard for CO for the class
1 and 2 engines be relaxed to 350 g\bhp-hr to be equivalent to the
corresponding Federal standard of 350 g\bhp-hr. CARB admitted that this
step would result in the CARB standard being less stringent than the
Federal standard because CARB allows manufacturers to choose
certification fuel which is differently formulated than the EPA-
required certification fuel. CARB found, nevertheless, that its ULGE
regulations overall, even with the relaxation of the Tier One CO
standard, continue to be, in the aggregate, more protective of public
health and welfare that the applicable Federal regulations.
CARB has requested that EPA ``confirm the ARB's determination that
the adopted (CO standard) amendment falls within the scope of the
previous authorization for utility engines granted
[[Page 69766]]
under section 209(e)(2) of the Federal Clean Air Act.'' \10\
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\10\ Letter from Michael P. Kenny, Executive Officer, CARB, to
Carol M. Browner, Administrator, EPA, dated October 9, 1996, (``CARB
request letter'') Docket A-2000-07, Entry II-D-1.
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(D) CARB Snowthrower & Ice Auger Optional HC and NOX
Standards, and Specialty Vehicle CO Standard Revision
By letter dated April 8, 1997, CARB notified EPA of two new sets of
rule amendments. First, CARB stated that it has amended its ULGE
regulations to provide manufacturers of engines used in snowthrowers
and ice augers the option of not having to certify to the HC and
NOX standards. Second, CARB stated that it amended the NRRV
Rule to increase the carbon monoxide standard from 300 g/bhp-hr to 350
g/bhp-hr for engines used in specialty vehicles \11\ that are under 25
hp and manufactured after the effective date of the amendments through
calendar year 1998.
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\11\ CARB defines ``specialty vehicles'' as ``any vehicle
powered by an internal combustion engine having not less than three
wheels in contact with the ground, having an unladen weight
generally less than 2000 pounds, which is typically operated between
10 and 35 miles per hour. * * * Speciality vehicles are mainly used
off of highways and residential streets. Applications of such
vehicles include, but are not limited to, carrying passengers,
hauling light loads, grounds keeping and maintenance, resort or
hotel areas, airports, etc.'' 13 CCR 2411(a)(19).
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Under the ULGE Rule as initially adopted by CARB in 1990,
snowthrowers and ice augers were included in the Rule's coverage and
thus were treated no differently than all other utility, lawn and
garden equipment. In contrast, the EPA small engine rule, issued in
1995, exempted wintertime equipment from HC and NOX
standards. EPA noted that because snowthrowers and ice augers were
clearly used only during the winter, it would not be reasonable to
subject them to stringent control requirements aimed at addressing
summertime ozone nonattainment problems.\12\
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\12\ EPA explained that ``on a national level, ozone
nonattainment is primarily a seasonal problem that occurs during
warm sunny weather. Regulating HC and emissions from products used
exclusively in the winter, such as snowthrowers (and ice augers),
will not advance the Agency's mission to correct this seasonal
problem.'' 60 FR 34582, 34591 (July 3, 1995), 40 CFR
90.103(a)(5)(1998).
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In March, 1996, the Tecumseh Products Company and the Toro Products
Company, along with several servicing dealers, petitioned CARB to
exempt snowthrowers and ice augers from HC and NOX
standards. The industry petition noted that the emissions contribution
from this type of winter-time equipment was very small, and that the
requested change also would harmonize California and Federal treatment
of this equipment.\13\ CARB granted this petition by adopting the
requested changes. In its request letter to EPA, CARB acknowledged that
because this step removes a mandatory standard for a class of utility
equipment, it reduces the overall stringency of the CARB ULGE Rule.
CARB found, nevertheless, that its ULGE regulations overall, even with
the exemption of snowthrowers and ice augers from HC and NOX
standards, continue to be, in the aggregate, more protective of public
health and welfare than the applicable Federal regulations.
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\13\ Staff Report: Initial Statement of Reasons for Proposed
Rulemaking, Docket A-2000-08, Entry II-D-2, p. 3, and Attachment A
(Industry petition).
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The CARB NRRV Rule, as adopted in 1994, applies to various types of
small nonroad vehicles including specialty vehicles under 25 hp.
Because the engines used in the under 25 hp speciality vehicles were
generally the same engines used in small utility equipment (Class 1 and
2 engines), CARB adopted emission standards for these vehicles that
paralleled the emission standards for the small engines covered by the
ULGE Rule. As discussed above, in response to an industry petition, in
January 1996 CARB amended its ULGE Rule setting the Tier I carbon
monoxide (CO) standard for class 1 and 2 nonroad engines, by revising
the standard from 300 g/bhp-hr to 350 g/bhp-hr. Because the under 25 hp
specialty vehicles use the Class 1 and 2 small nonroad engines now
under the relaxed CO standard in the ULGE Rule, CARB amended the NRRV
Rule to correspond with the revised CO standard of 350 g/bhp-hr.
CARB has requested that EPA ``confirm the ARB's determination that
the adopted amendments fall within the scope of the previous
authorizations that * * * EPA has granted under section 209(e)(2) of
the CAA for utility engines and recreational vehicles (citations
omitted).'' \14\
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\14\ Letter from Michael P. Kenny, Executive Officer, CARB, to
Carol M. Browner, Administrator, EPA, dated April 8, 1997, (``CARB
request letter'') Docket A-2000-08, Entry II-D-1.
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In the letters for these requests, CARB stated that the various
amendments will not cause the California nonroad standards, in the
aggregate, to be less protective of public health and welfare than the
applicable Federal standards. Regarding consistency with section 209,
CARB stated that the amendments (1) apply only to nonroad engines and
vehicles and not to motor vehicles or engines, (2) apply only to those
nonroad engines and vehicles which are not included in the preempted
categories, and (3) do not raise any concerns of inadequate leadtime or
technological feasibility or impose any inconsistent certification
requirements (compared to the Federal requirements). Finally, CARB
stated that the amendments raise no new issues affecting the prior EPA
authorization determinations.
EPA agrees with all CARB findings with regard to the provisions
listed above. Thus, EPA finds that these amendments are within the
scope of previous authorizations. A full explanation of EPA's decision
is contained in a Decision Document which may be obtained from EPA as
noted above.
Because these amendments are within the scope of previous
authorizations, a public hearing to consider them is not necessary.
However, if any party asserts an objection to these findings by
December 20, 2000, EPA will consider holding a public hearing to
provide interested parties an opportunity to present testimony and
evidence to show that there are issues to be addressed through a
section 209(e) authorization determination and that EPA should
reconsider its findings. Otherwise, these findings shall become final
on December 20, 2000.
My decision will affect not only persons in California but also the
manufacturers outside the State who must comply with California's
requirements in order to produce nonroad engines and vehicles for sale
in California. For this reason, I hereby determine and find that this
is a final action of national applicability.
Under section 307(b)(1) of the Act, judicial review of this final
action may be sought only in the United States Court of Appeals for the
District of Columbia Circuit. Petitions for review must be filed by
January 19, 2001. Under section 307(b)(2) of the Act, judicial review
of this final action may not be obtained in subsequent enforcement
proceedings.
EPA's determination that these California regulations are within
the scope of prior authorizations by EPA does not constitute a
significant regulatory action under the terms of Executive Order 12866
and this action is therefore not subject to Office of Management and
Budget review.
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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement
[[Page 69767]]
Fairness Act of 1996, does not apply because this action is not a rule,
for purposes of 5 U.S.C. 804(3).
Finally, the Administrator has delegated the authority to make
determinations regarding authorizations under section 209(e) of the Act
to the Assistant Administrator for Air and Radiation.
Dated: November 9, 2000.
Robert Perciasepe,
Assistant Administrator for Air and Radiation.
[FR Doc. 00-29500 Filed 11-17-00; 8:45 am]
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