[Federal Register Volume 65, Number 224 (Monday, November 20, 2000)]
[Notices]
[Pages 69767-69769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29501]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-6903-3]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Notice of Within the Scope Determinations for Amendments to 
California's Small Off-Road Engine Regulations

AGENCY: Environmental Protection Agency.

ACTION: Notice Regarding Within the Scope Determinations.

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SUMMARY: The California Air Resources Board (CARB), by letter dated 
October 4, 1999, requested that EPA confirm CARB's finding that 
amendments to its Small Off-Road Engine (SORE) Regulations are within-
the-scope of a prior authorization under section 209(e) of the Clean 
Air Act (Act), 42 U.S.C. 7543(b), granted by EPA for CARB's original 
SORE Regulations in July 1995. EPA in this notice has made the 
requested confirmation for many of the amendments in the CARB request. 
EPA has also determined that other amendments in this CARB request were 
not within the scope of the prior authorization because these 
amendments are new standards, and will announce the opportunity for a 
public hearing on these specific amendments.

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 in this 
notice 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. The Docket for this matter is Docket A-2000-09. 
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 Avenue, 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. Amendments to the SORE Regulations

    We have determined that certain amendments to the CARB SORE \1\ 
Regulations are within the scope of a prior authorization under section 
209(e) of the Clean Air Act (Act), 42 U.S.C. 7543(b), granted by EPA to 
CARB's original SORE Regulations by decision of the Administrator dated 
July 5, 1995.\2\ The SORE regulations apply to all gasoline, diesel, 
and other fueled utility and lawn and garden equipment engines 25 
horsepower and under, with certain exceptions. Under the original 
authorization, the SORE regulations established two ``tiers'' of 
exhaust emission standards for these engines (Tier 1 from 1995 through 
1998 model years, and Tier 2 for model year 1999 and beyond), as well 
as numerous other requirements. The amendments to the regulations, 
outlined in CARB's request letter,\3\ and fully described CARB's 
submissions, accomplish the following:
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    \1\ These amendments, among other things, renamed the 
regulations from the Utility, Lawn and Garden Engine Regulations 
(ULGE Rule) to the Small Off-Road Engine Regulations (SORE Rule).
    \2\ 60 FR 37440 (July 20, 1995). The CARB small engine emission 
regulations were then called the Utility, Lawn and Garden Engine 
(ULGE) regulations. The new amendments, among other things, renamed 
the ULGE regulations as the SORE regulations
    \3\ Letter from Micahel P. Kenney, Executive Officer, CARB, to 
Carol M. Browner, Administrator, EPA, dated October 4, 1999, Docket 
A-2000-09, entry II-B-1.
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     The descriptive terms ``handheld'' and nonhandheld'' have 
been dropped in favor of describing covered engines by engine 
displacement categories. The former handheld engines are now called 
``less than or equal to 65 cubic centimeters (cc),'' or ``0-65cc,'' and 
the former nonhandheld engines are now called ``greater than 65 cc.'' 
CARB stated that the former categories were picked to ensure that 
multi-positional equipment supported solely by the operator could use 
the lighter (but dirtier) handheld engines, which are usually two-
stroke engines. Because of manufacturer difficulty with the engine 
definitions, CARB chose engine displacement to define category choices.
     CARB has changed both the previously authorized Tier 2 
standards and the authorized implementation dates for those standards. 
For the 0-65cc engines, CARB extended the Tier 1 standards for one more 
year, through model year 1999, so Tier 2 standards do not begin for 
these engines until the model year 2000. CARB also changed the Tier 2 
standards, by relaxing the CO and PM standards, and changing the format 
of the HC and NOX standards to allow manufacturers more 
flexibility. For the Over 65 cc engines, CARB extended the Tier i 
standards two additional years, through calendar year 2001 for most 
engines in this category. The extension is longer in some special 
cases: through 2002 for engines equal to or greater than 225cc and 
horizontal

[[Page 69768]]

shaft engines below 225 cc, and through 2006 for vertical shaft engines 
below 225 cc. Additionally, manufacturers who produce more than 40,000 
spark-ignited engines per year between 65 and 225cc for sale in 
California's extreme nonattainment areas are responsible for additional 
emission standards to obtain the emission reductions that would have 
occurred under the original CARB staff proposal for these amendments.
     For small compression ignition engines, CARB extended the 
coverage of the Tier 1 standards one additional year, through model 
year 1999. For model year 2000 and later, CARB amended the SORE 
regulations to implement the emission standards for small nonroad 
compression ignition engines in the Statement of Principles agreed upon 
by CARB, EPA and various industry members in 1996. The effect of these 
standards is a relaxation of the Tier 1 standards; the CARB staff 
acknowledged that it did not believe the 3.2 g/bhp-hr HC + 
NOX standard was attainable in the prescribed time period of 
the CARB Tier 2 standards. CARB notes, however, that the amended small 
compression engine standards will provide good SIP benefits while also 
providing California/Federal harmonization of the regulations.\4\
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    \4\ Staff Report, Docket A-2000-09, entry II-B-2, p. 32-33, 
Final Regulation Order--Exhaust Standards and Test Procedures, 
Docket A-2000-09, entry II-B-8, part VI, p. 98. CARB adopted by 
reference, with some modifications, 40 CFR Part 89 as that Part 
relates to the small compression engines.
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     CARB has expanded the applicability of the SORE Rule to 
include speciality vehicles and golf carts; these vehicles previously 
were regulated under the CARB Nonroad Recreational Vehicle Rule. This 
change results in all engines less than 25 hp used in mobile 
applications now being covered by the same Rule. CARB also modified the 
applicability of the Rule to remove the provision that includes engines 
that produce a rated power greater than 25hp but are governed to 
produce actual power of under 25hp. CARB had found that a small number 
of engines of that type were built on an automotive base. The 
manufacturer expected the engine would not be subject to the SORE 
standards, but because the manufacturer's customer installed a governor 
downrating the engine, it became subject to these standards. CARB 
states that engines in this grouping will be regulated in an upcoming 
rulemaking to levels appropriate to their automotive origins.\5\
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    \5\ CARB Staff Report, Docket A-2000-09, entry II-B-2, pp. 10-
11.
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     Manufacturers will have the option of demonstrating 
compliance with the PM standard through an engineering evaluation 
rather than through direct testing measurement, the only method allowed 
in the original rule. CARB staff recommended this change after learning 
that a simple formula could produce a valid PM measurement value, and 
thus save manufacturers the cost of the expensive sampling equipment 
required to measure PM. CARB devised this formula based on information 
from an industry group showing that PM emissions from two-stroke 
engines will be no greater than the tested HC emissions divided by the 
fuel to oil ratio used in the engine.\6\
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    \6\ CARB Staff Report, Docket A-2000-09, entry II-B-2, p. 21.
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     CARB has established a program of averaging, banking and 
trading (ABT) of emission credits for manufacturers of these engines. 
Manufacturers will be able to use a corporate average to show 
compliance with the HC + NOX standard. For any one engine 
family, the manufacturer can establish a ``Family Emission Limit 
(FEL)'' which will be the emission standard for that family, and the 
FEL can be above the standard (subject only to a set upper limit), so 
long as the average of all the manufacturer's families met the 
standard. This corporate average would weight individual engine 
families by power, load factor, sales and durability period. CARB notes 
that this credit program is designed to provide industry the 
flexibility to address problems such as low sales volume engines for 
which emission reductions are relatively costly by allowing 
manufacturers to focus efforts first on the higher sales volume 
engines. The manufacturer averaging program also includes an emission 
reduction credits mechanism. CARB will allow manufacturers to generate 
Production Emission Reduction Credits when the final HC + 
NOX sample mean (from the production line testing) of an 
engine family is below the FEL. These credits earned can be used for 
certification and as a remedy for noncompliance of another engine 
family.\7\
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    \7\ CARB Staff Report, Docket A-2000-09, entry II-B-2, p. 8-9, 
and p. 35, Final Regulation Order, Exhaust Standards and Test 
Procedures, Docket A-2000-09, entry II-B-8, pp. 53-63 (emission 
reduction credits) and p. 110 (upper limit).
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     CARB amended its ``quality audit'' requirements. In the 
original program, manufacturers were required to test 1% of total 
production for compliance in end of production line tests (``green'' 
engines). In the new requirements, manufacturers now have an option to 
follow a procedure similar to the Federal ``Cumulative Sum (``Cum 
Sum'') procedure. Under Cum Sum, manufacturers can complete the 
production line testing with a small number of engines when the family 
is clean, and thus not have to meet the 1% of production requirement. 
CARB's amendments alter the Cum Sum requirements by requiring a minimum 
testing rate of 2 engines from each family per quarter to ensure 
continued sampling. Manufacturers of small volume families can minimize 
their tests by retaining the 1% testing number. With the exception of 
the quarterly minimum, CARB's program is similar to that adopted for 
the Federal nonhandheld program and proposed for the Federal handheld 
program.\8\
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    \8\ CARB Staff Report, Docket A-2000-09, entry II-B-2, p. 8-9, 
and Final Statement of Reasons, Docket A-2000-09, entry II-B-7, 
p.44-45.
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     CARB amended its emission warranty regulations by 
expanding the list of covered emission-related parts to include air 
filters and pressure regulators.
    In an October 4, 1999 letter to EPA, CARB notified EPA of the 
above-described amendments to its SORE regulations and asked EPA to 
confirm that these amendments are within the scope of previous 
authorizations.\9\ EPA can make such a confirmation if certain 
conditions are present. 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, \10\ and raises no 
new

[[Page 69769]]

issues affecting EPA's previous authorization determination.\11\
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    \9\ The CARB request also included amendments which established 
brand new durability standards for covered engines (where before 
there were none). EPA has determined that these two sets of 
regulation amendments in this request cannot be considered within 
the scope of the previous authorization because these particular 
amendments set new and/or more stringent standards and therefore 
properly should be reviewed as a new authorization request. 
Accordingly, EPA will offer the opportunity for a public hearing on 
these new standards.
    \10\ 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 from 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.
    \11\ Decision Document for California Nonroad Engine Regulations 
Amendments, Dockets A-2000-05 to 08, entry V-B, .p. 28.
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    In its request letter, 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. 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.
    Our 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, we 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 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. 00-29501 Filed 11-17-00; 8:45 am]
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