[Federal Register Volume 68, Number 225 (Friday, November 21, 2003)]
[Notices]
[Pages 65702-65704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29183]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-7590-1]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Authorization of Nonroad Durability Standards, Notice of 
Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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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 
amendments to its Small Off-Road Engine (SORE) regulations which set 
new durability standards for covered engines. The California Air 
Resources Board (CARB), by letter dated October 4, 1999, requested that 
EPA confirm CARB's finding that these new durability standards and 
other amendments to the SORE Regulations are within-the-scope of a 
prior authorization under section 209(e) of the Act, granted by EPA to 
CARB's original SORE Regulations in July 1995. EPA determined that most 
of the amendments were within the scope of the prior authorization, but 
because the durability requirements amendments are brand new standards, 
EPA offered the opportunity for a public hearing, and requested 
comments, on these new standards. After completing review of these 
amendments, EPA is authorizing California to enforce the durability 
standards.

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 A-2000-09 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) 566-1742, 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, 
Certification and Compliance Division, (6403J), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 
(U.S. mail), 1301 L Street NW., Washington, DC 20005 (courier mail). 
Telephone: (202) 343-9258, Fax: (202) 343-2057, E-Mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Obtaining Electronic Copies of Documents

    EPA makes available an electronic copy of this Notice and the 
Agency's Decision Document on the Office of Transportation and Air 
Quality (OTAQ) homepage (http://www.epa.gov/OTAQ). Users can find these 
documents by accessing the OTAQ homepage and looking at the path 
entitled ``Recent Additions.'' 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.

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.\1\

[[Page 65703]]

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.
    Section 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.
    Section 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. 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\
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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 (D.C. 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 SORE Amendments Request

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

[[Page 65704]]

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\
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    \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.
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    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 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 
offered the opportunity for a public hearing, and requested public 
comments, on these new standards, as the Act requires us to do, by 
publication of a Federal Register notice to such effect on November 20, 
2000.\15\ There was no request for a public hearing, nor were any 
comments received on the CARB standards at issue. Therefore, EPA has 
made this determination based on the information submitted by CARB in 
its request.
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    \14\ Decision Document for California Nonroad Engine Regulations 
Amendments, Dockets A-2000-05 to 08, entry V-B.
    \15\ 65 FR 69763 (November 20, 2000).
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C. Authorization Decision

    EPA has decided to authorize California to enforce amendments to 
its SORE regulations that set durability standards for engines covered 
by the Rule. 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. CARB also stated that California's need 
for the emission reductions retained from the SORE regulations 
obviously remains compelling. Finally, 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).
    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 durability standards.
    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 20, 2004. 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: November 10, 2003.
Robert Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 03-29183 Filed 11-20-03; 8:45 am]
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