[Federal Register Volume 65, Number 224 (Monday, November 20, 2000)]
[Notices]
[Pages 69769-69771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29502]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-6903-4]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Opportunity for Public Hearing and Request for Public 
Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and request for public 
comment.

-----------------------------------------------------------------------

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 to CARB's original 
SORE Regulations in July 1995. EPA has made the requested confirmation 
for many of the amendments in the CARB request and published this 
determination in an earlier FR notice. EPA also determined that other 
amendments in this CARB request were not within the scope of the prior 
authorization because these amendments are brand new standards. For 
this reason, EPA is announcing the opportunity for a public hearing on 
these specific amendments.

DATES: EPA has tentatively scheduled a public hearing for December 8, 
2000, commencing at 9:30 am. Any person who wishes to testify on the 
record at the hearing must notify EPA in writing by December 1, 2000 
that he or she will attend the hearing to present oral testimony 
regarding EPA's determination. If EPA receives one or more requests to 
testify, this hearing will be held. If EPA does not receive any 
requests to testify, this hearing will be canceled. Anyone who plans to 
attend the hearing should contact Robert Doyle by telephone or E-Mail 
(number and address below) to determine if this hearing will be held. 
Regardless of whether or not a hearing is held, any party may submit 
written comments regarding EPA's determination by or before December 
22, 2000.

ADDRESSES: Parties wishing to present oral testimony at the public 
hearing should provide written notice to John Guy, Acting Manager, 
Engine Compliance Programs Group, (6403J), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
If EPA receives a request for a public hearing, EPA will hold the 
public hearing in the first floor conference room at 501 3rd Street, 
NW., Washington, DC. Parties wishing to send written comments should 
provide them to Mr. Guy at the above address. EPA will make available 
for public inspection at the Air and Radiation Docket and Information 
Center written comments received from interested parties, in addition 
to any testimony given at the public hearing. The Air Docket is open 
during working hours from 8:00 a.m. to 4:00 p.m. at EPA, Air

[[Page 69770]]

Docket (6102), Room M-1500, Waterside Mall, 401 M Street, SW., 
Washington, DC 20460. The reference number for this docket is A-2000-
09.

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 
(U.S. mail), 501 3rd Street NW, Washington, DC 20001 (courier mail). 
Telephone: (202) 564-9258, Fax:(202) 565-2057, 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 ``Regulations.'' 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 website: (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. 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 new nonroad engines or vehicles. 
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).1, 2
---------------------------------------------------------------------------

    \1, 2\ See 59 FR 36969 (July 20, 1994), and regulations set 
forth therein, 40 CFR Part 85, Subpart Q, 85.1601-85.1606.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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, 85.1605.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \5\ See FR 36969, 36983 (July 20, 1994).
    \6\ Setion 209(e)(1) of the Act has been implemented, See 40 CFR 
Pt. 85, Subpart Q 85.1602, 85.1603.
---------------------------------------------------------------------------

    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. 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.\7\
---------------------------------------------------------------------------

    \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 Fed. Reg. 32182 (July 25, 1978).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \8\ See, e.g., Motor and Equipment Manufacturers Association, 
Inc. v. EPA, 627 F.2d 1095, 1111-14 (D.C. Cir. 1979), cert. denied, 
446 U.S. 952 (1980) (MEMA I); 43 Fed. Reg. 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \9\ See 43 FR 36679, 36680 (August 18, 1978).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \10\ Decision Document for California Nonroad Engine Regulations 
Amendments, Dockets A-2000-05 to 08, entry V-B, p.28.
---------------------------------------------------------------------------

(B) The SORE Amendments Request

    EPA granted California authorization for its SORE Rule by decision 
of the Administrator dated July 5, 1995.\11\ The

[[Page 69771]]

SORE Rule, which applies to all gasoline, diesel, and other fueled 
utility and lawn and garden equipment engines 25 horsepower and under, 
with certain exceptions 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. By letter dated October 4, 1999, CARB notified EPA that 
it had adopted numerous amendments to its SORE Regulations which were 
first approved at a public hearing on March 26, 1998. These amendments 
are the product of CARB's continuing reviews of industry efforts to 
comply with the requirements of the CARB nonroad program. The Board 
directed the CARB staff to review the industry progress in developing 
the technology required to comply with the Tier 2 standards, and to 
consider issues raised by the industry in this process. The staff 
recommended to the Board that the SORE regulations ``be modified to 
reflect the realities of the small engine market and the technological 
capabilities of the industry.'' \12\ These recommended amendments which 
CARB adopted consequently reduce compliance burdens on manufacturers 
while also ``preserving most of the emission reductions--including most 
reductions in excess of comparable federal program--that U.S.E.P.A. 
previously authorized.'' \13\
---------------------------------------------------------------------------

    \11\ 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.
    \12\ CARB Notice of Public Hearing with attached Staff Report, 
Docket A-2000-09, entry II-B-2, p. 2.
    \13\ Letter from CARB to EPA requesting within the scope 
confirmation for amendments to SORE Rule, dated October 4, 1999, 
Docket A-2000-09, entry II-B-1, p.3.
---------------------------------------------------------------------------

    In its request letter, CARB asked EPA to confirm the CARB 
determination that the amendments to the SORE regulations set forth in 
its request package are within the scope of the 209(e) authorization of 
the original authorization granted by EPA for the SORE Rule in July 
1995. EPA has made such a determination for most of the regulation 
amendments included in the CARB request.\14\ EPA also has determined, 
on the other hand, that one set of regulation amendments in this 
request cannot be considered within the scope of the previous 
authorization because these particular amendments set brand new, more 
stringent standards and therefore properly should be reviewed as a new 
authorization request. These amendments set useful life standards for 
covered engines (where before there were none). Accordingly, EPA 
announces this opportunity for a public hearing on these new standards.
---------------------------------------------------------------------------

    \14\ Decision Document for California Nonroad Engine Regulations 
Amendments, Dockets A-2000-05 to 08, entry V-B.
---------------------------------------------------------------------------

III. Procedures for Public Participation

    Any party desiring to make an oral statement on the record should 
file ten (10) copies of its proposed testimony and other relevant 
material with John Guy Doyle at the address listed above no later than 
December 20, 2000. In addition, the party should submit 25 copies, if 
feasible, of the planned statement to the presiding officer at the time 
of the hearing.
    In recognition that a public hearing is designed to give interested 
parties an opportunity to participate in this proceeding, there are no 
adverse parties as such. Statements by participants will not be subject 
to cross-examination by other participants without special approval by 
the presiding officer. The presiding officer is authorized to strike 
from the record statements that he or she deems irrelevant or 
repetitious and to impose reasonable time limits on the duration of the 
statement of any participant.
    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a public hearing is held, EPA will keep the 
record open until December 22, 2000. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record of the public hearing, if any, relevant written 
submissions, and other information that she deems pertinent. All 
information will be available for inspection at EPA Air Docket, in 
Docket No. A-2000-09.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest 
possible extent and label it as ``Confidential Business Information'' 
(CBI). If a person making comments wants EPA to base its decision in 
part on a submission labeled CBI, then a nonconfidential version of the 
document that summarizes the key data or information should be 
submitted for the public docket. To ensure that proprietary information 
is not inadvertently placed in the docket, submissions containing such 
information should be sent directly to the contact person listed above 
and not to the public docket. Information covered by a claim of 
confidentiality will be disclosed by EPA only to the extent allowed and 
by the procedures set forth in 40 CFR Part 2. If no claim of 
confidentiality accompanies the submission when EPA receives it, EPA 
will make it available to the public without further notice to the 
person making comments.

    Dated: November 9, 2000.
Robert Perciasepe,
Assistant Administrator for Air and Radiation.
[FR Doc. 00-29502 Filed 11-17-00; 8:45 am]
BILLING CODE 6560-50-P