[Federal Register Volume 71, Number 99 (Tuesday, May 23, 2006)]
[Notices]
[Pages 29621-29623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7834]
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ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-8173-3]
California State Nonroad Engine and Vehicle Pollution Control
Standards; Authorization of Large Off-Road Spark-Ignition Engine
Standards, Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of decision for authorization of Large Off-Road Spark-
Ignition Engine Standards.
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SUMMARY: EPA today, pursuant to section 209(e) of the Clean Air Act
(Act), 42 U.S.C. 7543(b), is authorizing California to enforce its
regulations setting emission standards and other requirements for large
off-road spark-ignition engines.
ADDRESSES: The Agency's Decision Document, containing an explanation of
the Assistant Administrator's decision, as well as all documents relied
upon in making that decision, including those submitted to EPA by CARB,
are available for public inspection in EPA Air Docket OATR-2004-0404 at
the following address: EPA Docket Center (EPA/DC), Public Reading Room,
Room B102, EPA West Building, 1301 Constitution Avenue NW., Washington,
DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to
4:30 p.m. Monday through Friday, except on government holidays. The Air
Docket telephone number is (202) 566-1744, and the facsimile number is
(202) 566-1741. You may be charged a reasonable fee for photocopying
docket materials, as provided in 40 CFR part 2.
FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor,
Office of Transportation and Air Quality, (6403J), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, D.C.
20460 (U.S. mail), 501 3rd Street NW., Washington, DC 20005 (courier
mail). Telephone: (202) 343-9258, Fax: (202) 343-2804, E-Mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Obtaining Electronic Copies of Documents
EPA makes available an electronic copy of this Notice on the Office
of Transportation and Air Quality (OTAQ) homepage (http://www.epa.gov/OTAQ). Users can find this document by accessing the OTAQ homepage and
looking at the path entitled ``Federal Register Notices.'' (This
service is free of charge, except any cost you already incur for
Internet connectivity. Users can also get the official Federal Register
version of the Notice 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.
Additionally, an electronic version of the public docket is
available through the Federal government's electronic public docket and
comment system. You may access EPA dockets at http://www.regulations.gov. After opening the http://www.regulations.gov Web
site, select ``Environmental Protection Agency'' from the pull-down
Agency list, then scroll to Docket ID EPA-HQ-OAR-2004-0404 to view
documents in the record of the large offroad spark ignition engine
authorization request. Although a part of the official docket, the
public docket does not include Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
II. Background
(A) Nonroad Authorizations
Section 209(e)(1) of the Act addresses the permanent preemption of
any State, or political subdivision thereof, from adopting or
attempting to enforce any standard or other requirement relating to the
control of emissions for certain
[[Page 29622]]
new nonroad engines or vehicles.\1\ Section 209(e)(2) of the Act allows
the Administrator to grant California authorization to enforce state
standards for new nonroad engines or vehicles which are not listed
under section 209(e)(1), subject to certain restrictions. On July 20,
1994, EPA promulgated a regulation that sets forth, among other things,
the criteria, as found in section 209(e)(2), by which EPA must consider
any California authorization requests for new nonroad engines or
vehicle emission standards (section 209(e) rules).\2\
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\1\ Section 209(e)(1) of the Act provides:
No State or any political subdivision thereof shall adopt or
attempt to enforce any standard or other requirement relating to the
control of emissions from either of the following new nonroad
engines or nonroad vehicles subject to regulation under this Act--
(A) New engines which are used in construction equipment or
vehicles or used in farm equipment or vehicles and which are smaller
than 175 horsepower.
(B) New locomotives or new engines used in locomotives.
Subsection (b) shall not apply for purposes of this paragraph.
\2\ See 59 FR 36969 (July 20, 1994), and regulations set forth
therein, 40 CFR part 85, subpart Q, Sec. Sec. 85.1601-85.1606.
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Section 209(e)(2) requires the Administrator, after notice and
opportunity for public hearing, to authorize California to enforce
standards and other requirements relating to emissions control of new
engines not listed under section 209(e)(1).\3\ The section 209(e) rule
and its codified regulations\4\ formally set forth the criteria,
located in section 209(e)(2) of the Act, by which EPA must grant
California authorization to enforce its new nonroad emission standards:
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\3\ As discussed above, states are permanently preempted from
adopting or enforcing standards relating to the control of emissions
from new engines listed in section 209(e)(1).
\4\ See 40 CFR part 85, subpart Q, Sec. 85.1605.
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40 CFR part 85, subpart Q, Sec. 85.1605 provides:
(a) The Administrator shall grant the authorization if
California determines that its standards will be, in the aggregate,
at least as protective of public health and welfare as applicable
Federal standards.
(b) The authorization shall not be granted if the Administrator
finds that:
(1) The determination of California is arbitrary and capricious;
(2) California does not need such California standards to meet
compelling and extraordinary conditions; or
(3) California standards and accompanying enforcement procedures
are not consistent with section 209.
As stated in the preamble to the section 209(e) rule, EPA has
interpreted the requirement that EPA cannot find ``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.\5\ 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 from state regulation.\6\
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).
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\5\ See 59 FR 36969, 36983 (July 20, 1994).
\6\ Section 209(e)(1) of the Act has been implemented, See 40
CFR part 85, subpart Q, Sec. Sec. 85.1602, 85.1603.
Sec. 85.1603 provides in applicable part:
(a) For equipment that is used in applications in addition to
farming or construction activities, if the equipment is primarily
used as farm and/or construction equipment or vehicles, as defined
in this subpart, it is considered farm or construction equipment or
vehicles. (b) States are preempted from adopting or enforcing
standards or other requirements relating to the control of emissions
from new engines smaller than 175 horsepower, that are primarily
used in farm or construction equipment or vehicles, as defined in
this subpart.
Sec. 85.1602 provides definitions of terms used in Sec.
85.1603 and states in applicable part:
Construction equipment or vehicle means any internal combustion
engine-powered machine primarily used in construction and located on
commercial construction sites.
Farm Equipment or Vehicle means any internal combustion engine-
powered machine primarily used in the commercial production and/or
commercial harvesting of food, fiber, wood, or commercial organic
products or for the processing of such products for further use on
the farm primarily used means used 51 percent or more.
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Finally, 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. Previous decisions granting waivers of Federal
preemption for motor vehicles have stated that 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.\7\
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\7\ To be consistent, the California certification procedures
need not be identical to the Federal certification procedures.
California procedures would be inconsistent, however, if
manufacturers would be unable to meet both the state and the Federal
requirement with the same test vehicle in the course of the same
test. See, e.g., 43 FR 32182 (July 25, 1978).
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With regard to enforcement procedures accompanying standards, EPA
must grant the requested authorization unless it finds that these
procedures may cause the California standards, in the aggregate, to be
less protective of public health and welfare than the applicable
Federal standards promulgated pursuant to section 213(a), or unless the
Federal and California certification test procedures are
inconsistent.\8\
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\8\ See, e.g., Motor and Equipment Manufacturers Association,
Inc. v. EPA, 627 F.2d 1095, 1111-14 (DC Cir. 1979), cert. denied,
446 U.S. 952 (1980) (MEMA I); 43 FR 25729 (June 14, 1978).
While inconsistency with section 202(a) includes technological
feasibility, lead time, and cost, these aspects are typically
relevant only with regard to standards. The aspect of consistency
with 202(a) which is of primary applicability to enforcement
procedures (especially test procedures) is test procedure
consistency.
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Once California has received an authorization for its standards and
enforcement procedures for a certain group or class of nonroad
equipment engines or vehicles, it may adopt other conditions precedent
to the initial retail sale, titling or registration of these engines or
vehicles without the necessity of receiving an additional
authorization.\9\
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\9\ See 43 FR 36679, 36680 (August 18, 1978).
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If California acts to amend a previously authorized standard or
accompanying enforcement procedure, the amendment may be considered
within the scope of a previously granted authorization 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, and raises no new issues affecting EPA's previous
authorization determination.\10\
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\10\ Decision Document for California Nonroad Engine Regulations
Amendments, Dockets A-2000-05 to 08, entry V-B, p. 28.
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(B) The Off-Road Large Spark Ignition Engines Regulations Request
By letter dated February 15, 2000, CARB requested EPA authorization
to enforce California's Off-Road Large Spark Ignition Engine (LSI)
[[Page 29623]]
regulations.\11\ The CARB regulations set emission standards for these
engines commencing with model year 2001 for certification and with
model year 2004 for in-use compliance. There are two sets of standards
depending on the size of the engine; one set for LSI engines less than
or equal to 1.0 liters displacement, and the other for LSI engines
greater than 1.0 liters displacement. For the smaller LSI engines, CARB
set standards for HC plus Nox and for CO at static levels for model
year 2002 and beyond, and 100% of a manufacturer's sales must meet the
standards each year. For the larger LSI engines, CARB approved two
tiers of emission levels. For Tier 1, manufacturers are able to phase-
in compliance at certification with 25% of the sales for 2001, 50% for
2003, and 75% for 2003, and manufacturers have no in-use compliance
requirement. For Tier 2, beginning with the 2004 model year,
manufacturers have to meet the standards at certification with 100% of
sales, and are subject to in-use compliance with a less stringent
standards for model years 2004 through 2006 (with an engine durability
period of 3500 hours or 5 years) and full in-use standards for model
years 2007 and beyond (with a durability period of 5000 hours or 7
years).
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\11\ These engines are often derived from automobile engines,
although they have less sophisticated fuel and emission control
systems, and are fueled usually by either gasoline or liquified
petroleum gas (LPG). Typical applications for these LSI engines are
forklifts, portable generators, large turf care equipment,
irrigation pumps, welders, air compressors, scrubber/sweepers, and
airport service vehicles. CARB Initial Staff Report, Docket Entry
OAR-2004-0404-0008, p1.
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To accompany the new standards, CARB also adopted regulations
requiring manufacturer production line testing (along with CARB
authority to conduct Selective Enforcement Audits), manufacturer
required in-use testing, an in-use emission credit program, permanent
emission labels, and emission warranties. CARB also adopted provisions
to provide relief to small volume manufacturers (annual production
under 2000 engines) basically by delaying the time when they must
comply with in-use standards until 2004.
EPA offered the opportunity for a public hearing, and requested
public comments, on the CARB authorization request, as the Act requires
us to do, by publication of a Federal Register notice to such effect on
January 12, 2005.\12\ There was no request for a public hearing, nor
were any comments received on the CARB authorization request.
Therefore, EPA has made this determination based on the information
submitted by CARB in its request.
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\12\ 70 FR 2151 (January 12, 2005).
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(C) Authorization Decision
EPA has decided to grant California authorization to enforce its
regulations setting emission standards and other requirements for large
off-road spark-ignition engines. In its request letter, CARB stated
that these LSI regulations will not cause the California nonroad
standards, in the aggregate, to be less protective of public health and
welfare than the applicable Federal standards. CARB also stated that
California's need for the emission reductions expected from the LSI
regulations remains compelling. Finally, regarding consistency with
section 209, CARB stated that the LSI regulations (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
certification requirements inconsistent with Federal requirements.
EPA agrees with all CARB findings with regard to the provisions
listed. Additionally, no information was presented to EPA by any party
which would demonstrate that California did not meet the burden of
satisfying the statutory criteria of section 209(e). For these reasons,
EPA authorizes California to enforce these LSI regulations.
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
July 24, 2006. Under section 307(b)(2) of the Act, judicial review of
this final action may not be obtained in subsequent enforcement
proceedings.
As with past authorization 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).
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: May 15, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. E6-7834 Filed 5-22-06; 8:45 am]
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