[Federal Register Volume 68, Number 70 (Friday, April 11, 2003)]
[Proposed Rules]
[Pages 17763-17767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8956]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 89

[AMS-FRL-7481-9]


Control of Emissions From New Nonroad Diesel Engines: Amendments 
to the Nonroad Engine Definition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rule.

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SUMMARY: EPA is proposing to revise the definition of nonroad engines 
to include all diesel-powered engines used in agricultural operations 
in the State of California that are certified by the engine maker to 
meet the applicable nonroad emission standards. Under this proposed 
rule, such engines would be considered nonroad engines without regard 
to whether these engines are portable or transportable or how long 
these engines remain in one fixed location at a farm.
    In the ``Rules and Regulations'' section of this Federal Register, 
we are making this amendment as a direct final rule without prior 
proposal.
    We have explained our reasons for this amendment in the preamble to 
the

[[Page 17764]]

direct final rule. If we receive no adverse comment, we will not take 
further action on this proposed rule. If we receive adverse comment, we 
will withdraw the direct final rule and its changes will not take 
effect. We will address all public comments in a subsequent final rule 
based on this proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

DATES: If we do not receive a request for a public hearing, written 
comments are due May 12, 2003. Request for a public hearing must be 
received by April 28, 2003. If we do receive a request for a public 
hearing, it will be held on May 12, 2003, starting at 10 a.m. In that 
case, the public comment period will close on June 10, 2003.

ADDRESSES: Comments may be submitted by mail by sending two copies of 
your comments to: Air Docket, Environmental Protection Agency, 
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, 
Attention Docket ID No. OAR-2003-0046. Comments may also be submitted 
electronically, by facsimile, or through hand delivery/courier. Follow 
the detailed instructions as provided in Unit I of the SUPPLEMENTARY 
INFORMATION section.
    Hearing: If we do receive a request for a public hearing, it will 
be held at the EPA's Region IX offices, 75 Hawthorne Street, San 
Francisco, California.

FOR FURTHER INFORMATION CONTACT: Robert Larson, U.S. EPA, National 
Vehicle and Fuel Emissions Laboratory, Transportation and Regional 
Programs Division, 2000 Traverwood Drive, Ann Arbor, MI 48105; 
telephone (734) 214-4277, fax (734) 214-4956, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

    Entities potentially impacted by this change in regulation are 
farming interests in the State of California and those interests that 
manufacture or put into commerce new, compression-ignition nonroad 
engines, including:

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               Category                          NAICS codes                              Examples of potentially regulated entities
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Manufacturing.........................  333618                        Manufacturers of new nonroad diesel engines.
Agriculture, Forestry, Fishing,         111XXX                        Farms with crop production.
 Hunting.
Agriculture, Forestry, Fishing,         112XXX                        Farms with animal production.
 Hunting.
Manufacturing.........................  333111                        Farm machinery and equipment.
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B. How Can I Get Copies of This Document?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OAR-2003-0046. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
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. The official public docket 
is the collection of materials that is available for public viewing at 
the Air Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 
1301 Constitution Ave., 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, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742. This Docket Facility is open from 8:30 a.m. 
to 4:30 p.m. Monday through Friday, excluding legal holidays. The 
Docket telephone number is 202-566-1742.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/. An electronic version of the 
public docket is available through EPA's electronic public docket and 
comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the 
index listing of the contents of the official public docket, and to 
access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in Unit I.C. EPA intends to work towards 
providing electronic access to all of the publicly available docket 
materials through EPA's electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify

[[Page 17765]]

the appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0046. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected] Attention Air Docket ID No. OAR-2003-0046. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Unit I.A.1. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send two copies of your comments to: Air Docket, 
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC, 20460, Attention Docket ID No. OAR-2003-
0046.
    3. By Hand Delivery or Courier. Deliver your comments to: EPA 
Docket Center, Room B102, EPA West Building, 1301 Constitution Avenue, 
NW., Washington, DC, Attention Air Docket ID No. OAR-2003-0046. Such 
deliveries are only accepted during the Docket's normal hours of 
operation as identified in Unit I.
    4. By Facsimile. Fax your comments to: (202) 566-1741, Attention 
Docket ID. No. OAR-2003-0046.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send or deliver information identified as CBI only to the following 
address: Attention: Robert Larson, U.S. EPA, National Vehicle and Fuel 
Emissions Laboratory, Transportation and Regional Programs Division, 
2000 Traverwood Drive, Ann Arbor, MI 48105, Docket ID No. OAR-2003-
0046. You may claim information that you submit to EPA as CBI by 
marking any part or all of that information as CBI (if you submit CBI 
on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and 
then identify electronically within the disk or CD ROM the specific 
information that is CBI). Information so marked will not be disclosed 
except in accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. Summary of Proposal

    EPA is proposing to revise the definition of nonroad engines to 
include all diesel-powered engines used in agricultural operations in 
the State of California that are certified by the engine maker to meet 
the applicable nonroad emission standards. Under this proposed rule, 
such engines will be considered as nonroad engines without regard to 
whether these engines are portable or transportable or how long these 
engines remain in one fixed location at a farm.
    However, in the ``Rules and Regulations'' section of today's 
Federal Register, we are promulgating these revisions as a direct final 
rule without a prior proposal. We have explained our reasons for this 
action. This proposal incorporates by reference all the reasoning, 
explanation and regulatory text from the direct final rule. For further 
information, including the regulatory text for this proposal, please 
refer to the direct final rule that is located in the ``Rules and 
Regulations'' section of this Federal Register publication. The direct 
final rule will be effective on May 14, 2003, without further notice 
unless we receive adverse comment by May 12, 2003, or receive a request 
for a public hearing by April 28,

[[Page 17766]]

2003. If we receive no adverse comment, we will take no further action 
on this proposed rule. If we receive adverse comment on this 
rulemaking, we will publish a timely withdrawal in the Federal Register 
indicating that this rule change is being withdrawn due to adverse 
comment. We will address all adverse comment in a subsequent final rule 
based upon this proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency is required to determine whether this regulatory action would be 
``significant'' and therefore subject to review by the Office of 
Management and Budget (OMB) and the requirements of the Executive 
Order. The order defines a ``significant regulatory action'' as any 
regulatory action that is likely to result in a rule that may:

--Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
--Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or,
--Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.

    Pursuant to the terms of Executive Order 12866, we have determined 
that this proposed rule is not a ``significant regulatory action.''

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq., and 
implementing regulations, 5 CFR part 1320, do not apply to this action 
as it does not involve the collection of information as defined 
therein.

C. Regulatory Flexibility Act

    EPA certifies that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this action. This proposed rule 
will not have a significant economic impact on a substantial number of 
small entities, in particular because this rule change does not mandate 
that farms replace any existing engine.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments, and the private sector. Under section 202 of the UMRA, we 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more for 
any single year. Before promulgating a rule for which a written 
statement is needed, section 205 of the UMRA generally requires us to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows us to adopt an alternative that is 
not the least costly, most cost-effective, or least burdensome 
alternative if we provide an explanation in the final rule of why such 
an alternative was adopted.
    Before we establish any regulatory requirement that may 
significantly or uniquely affect small governments, including tribal 
governments, we must develop a small government plan pursuant to 
section 203 of the UMRA. Such a plan must provide for notifying 
potentially affected small governments, and enabling officials of 
affected small governments to have meaningful and timely input in the 
development of our regulatory proposals with significant Federal 
intergovernmental mandates. The plan must also provide for informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    This rule contains no Federal mandates for State, local, or tribal 
governments as defined by the provisions of title II of the UMRA. The 
rule imposes no enforceable duties on any of these governmental 
entities. Nothing in the rule will significantly or uniquely affect 
small governments.
    We have determined that this rule does not contain a Federal 
mandate that may result in estimated expenditures of more than $100 
million to the private sector in any single year. This action has the 
net effect of revising certain provisions of the Tier 2 rule. 
Therefore, the requirements of the UMRA do not apply to this action.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires us to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.
    Under section 6 of Executive Order 13132, we may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or we consult 
with State and local officials early in the process of developing the 
proposed regulation. We also may not issue a regulation that has 
federalism implications and that preempts State law, unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt State or local law, even if those rules do not 
have federalism implications (i.e., the rules will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government). Those 
requirements include providing all affected State and local officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, we also must consult, to the 
extent practicable, with appropriate State and local officials 
regarding the conflict between State law and federally protected 
interests within the Agency's area of regulatory responsibility.
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in

[[Page 17767]]

Executive Order 13132. This rule revises certain provisions of earlier 
rules that adopted national standards to control emissions from nonroad 
diesel engines. The requirements of the rule will be enforced by the 
Federal government at the national level. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's rule does not uniquely affect the communities of American 
Indian tribal governments. Furthermore, today's rule does not impose 
any direct compliance costs on these communities and no circumstances 
specific to such communities exist that will cause an impact on these 
communities beyond those discussed in the other sections of today's 
document. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, section 5-501 of the Executive Order directs us to 
evaluate the environmental health or safety effects of the planned rule 
on children, and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by us.
    This rule is not subject to the Executive Order because it is not 
an economically significant regulatory action as defined by Executive 
Order 12866. Furthermore, this rule does not concern an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to 
use voluntary consensus standards in our regulatory activities unless 
it would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) developed or adopted by voluntary consensus standards 
bodies. The NTTAA directs us to provide Congress, through OMB, 
explanations when we decide not to use available and applicable 
voluntary consensus standards.
    No new technical standards are established in today's rule.

IV. Statutory Provisions and Legal Authority

    Statutory authority for today's proposed rule is found in the Clean 
Air Act, 42 U.S.C. 7401 et seq., in particular, section 213 of the Act, 
42 U.S.C. 7547. This rule is being promulgated under the administrative 
and procedural provisions of Clean Air Act section 307(d), 42 U.S.C. 
7607(d).

List of Subjects in 40 CFR Part 89

    Environmental protection, Administrative practice and procedure, 
Motor vehicle pollution.

    Dated: April 7, 2003.
Christine Todd Whitman,
Administrator.
[FR Doc. 03-8956 Filed 4-10-03; 8:45 am]
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