[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Notices]
[Pages 2151-2154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-628]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-7860-7]


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.

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SUMMARY: The California Air Resources Board (CARB), has requested EPA 
authorization, under section 209(e) of the Clean Air Act (Act), for 
CARB to enforce California's Marine Spark Ignition Engine regulations 
for outboard marine engines, personal watercraft, and inboard and 
sterndrive marine engines, and to enforce California's Off-Road Large 
Spark Ignition Engine regulations. As the Act requires, EPA is 
announcing the opportunity for a public hearing and requesting public 
comment on each of these CARB requests.

DATES: EPA has tentatively scheduled a public hearing for the Marine 
Engine regulations request on February 28, 2005 commencing at 9:30 
a.m., and a public hearing for the Large Spark Ignition Engine 
regulations on February 28, 2005 commencing at 1:30 p.m. EPA will hold 
each hearing only if a party notifies EPA by February 2, 2005 
expressing its interest in presenting oral testimony regarding either 
(or both) of CARB's requests. By February 2, 2005, any person who plans 
to attend either hearing should contact Robert M. Doyle (see contact 
information below) to learn if the hearing will be held. Regardless of 
whether or not a hearing is held on either request, any party may 
submit written comments regarding CARB's request by or before March 14, 
2005.

ADDRESSES: Parties wishing to present oral testimony at either public 
hearing should provide written notice to Robert M. Doyle, Attorney-
Advisor, Certification and Compliance Division, (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 
1310 L Street, NW., Washington, DC. Parties wishing to send written 
comments should provide them to Mr. Doyle at the above address. EPA 
will make available for public inspection at the Air and Radiation 
Docket all written comments received from interested parties, in 
addition to any testimony given at the public hearing. The EPA Docket 
Center Public Reading Room is open during working hours from 8:30 a.m. 
to 4:30 p.m. at Room B102, 1301 Constitution Avenue, NW., Washington, 
DC. The telephone number for the Public Reading Room is (202) 566-1744 
The reference number for the Marine Spark Ignition Engines regulations 
request docket is OAR-2004-0403, and the reference number for the Off-
Road Large Spark Ignition Engines regulations request docket is OAR-
2004-0404.

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), 1310 L Street, NW., Room 340 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 ``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 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 EPA's electronic public docket and comment system. 
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. 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. Once in the electronic docket system, select 
``search,'' then key in the appropriate docket ID number for Docket 
OAR-2004-0403 (the Marine Spark Ignition Engines regulations request), 
or Docket OAR-2004-0404 (the Off-Road Large

[[Page 2152]]

Spark Ignition Engines regulations request).

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\ 
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 he 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

[[Page 2153]]

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 Marine SI Engine Regulations Requests

    CARB has submitted to EPA three separate but related requests to 
authorize various marine SI engine regulations. EPA will consider these 
requests together in our review of the requests to enforce CARB's 
marine SI engine emissions regulation program. These requests are 
summarized in order below.
    (1) By letter dated April 4, 2000, CARB requested EPA authorization 
to enforce California's marine SI regulations affecting outboard marine 
engines. The CARB regulations set emission standards for these marine 
engines commencing with model year 2001 for both certification and in-
use standards. The first tier of the CARB regulations basically adopted 
the standards equivalent to the EPA 2006 marine SI engines. CARB also 
adopted a second tier of outboard engine regulations, commencing in 
model year 2004 equivalent to 80% of the EPA 2006 standards, and a 
third tier, commencing in 2008, equivalent to 35% of the EPA 2006 
standard. Manufacturers are permitted to meet the standards directly or 
on a corporate average basis, where some engine families may emit more 
than the emission standard if they are offset by engines which emit 
sufficiently less than the standard. To accompany the new standards, 
CARB also adopted regulations requiring manufacturer production line 
testing (along with CARB authority to conduct Selective Enforcement 
Audits), manufacturer demonstration of in-use compliance, emission 
warranties, permanent emission certification labels for covered 
engines, and special ``hang tags'' for consumer/environmental awareness 
of clean technology engines.\11\
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    \11\ At the time this request was presented to EPA, the 
California Office of Administrative Law had not approved the section 
of the regulations dealing with these hang tags because of problems 
it found with the applicability date of the hang tag requirement. 
These problems were resolved and the hang tag requirement was 
included as part of the CARB June 5, 2002 request described below.
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    (2) By letter dated June 5, 2002, CARB extended the earlier 
authorization request to include regulations for marine SI engines in 
personal watercraft (PWC) \12\ for model year 2002 and beyond. The PWCs 
are subject to the same emission standards and requirements as the 
marine outboard SI engines discussed above. The CARB marine regulations 
had included both outboards and PWCs from the outset, but PWCs had not 
been included in the original CARB request because of technical issues 
raised by PWC manufacturers related to compliance with the CARB 
standards for model year 2001. The June 5, 2002 CARB request stated 
that those issues had been resolved, so CARB submitted this extension. 
In addition, CARB submitted for authorization the marine engine 
consumer hang tag regulations because the earlier model year 
applicability issue had been resolved.
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    \12\ Personal watercraft are small watercraft on which the rider 
sits or stands during operation, such as jet skis and wave runners. 
CARB Staff Report, October 23, 1998, at p. 9, Docket OAR-2004-0403.
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    (3) By letter dated March 2, 2004, CARB extended the earlier 
requests by requesting authorization to enforce California's marine SI 
regulations affecting inboard and sterndrive engines for model years 
2003 and beyond.\13\ The first tier of regulations, for model year 2003 
through 2008, sets a cap reflecting average emission levels of 16.0 
grams per kilowatt hour (g/kW-hr) HC plus NOX which 
manufacturers can meet directly by engine family or by corporate 
average. The second tier of standards sets a level of 5.0 g/kW-hr HC 
plus NOX and will phase in beginning with 45% of 
manufacturers' sales in 2007, 75% in 2008 and 100% in 2009 and beyond. 
For 2007 and 2008, compliance for the engine is directly with the 
standard, with no option for sales weighted-averaging. Besides these 
new standards, other regulations establish requirements for 
certification, emission test procedures, emissions warranty, and 
emission certification labels and consumer/environmental awareness hang 
tag labels. In addition, the inboard/sterndrive regulations require on-
board diagnostics for these engines. Finally, as part of the Inboard/
Sterndrive rulemaking, CARB adopted some minor amendments to the 
outboard and PWC regulations to clarify some definitions and labeling 
requirements made necessary by the adoption of the regulations for 
Inboard/Sterndrive marine engines.
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    \13\ Inboard engines include a propeller shaft that penetrates 
the hull of the marine vessel, while the engine and the remainder of 
the drive unit is internal to the hull of the marine watercraft. In 
sterndrive engines, the drive unit is external to the hull of the 
marine watercraft, while the engine is internal to the hull of the 
marine watercraft. CARB Staff Report, June 8, 2002, at p. 4, Docket 
OAR-2004-0403.
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(C) 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) 
regulations.\14\ 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 liter displacement, and the other for LSI engines 
greater than 1.0 liter 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 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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    \14\ 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 Staff Report, September 22, 1998, p. 
6, Docket OAR-2004-0404.
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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.

III. Procedures for Public Participation

    If a public hearing is held on either request, 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 Robert Doyle at 
the address listed above no

[[Page 2154]]

later than February 11, 2005. 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 on either request, 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 March 14, 2005. 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 OAR-2004-0403 (the Marine Spark Ignition Engines regulations 
request), and Docket OAR-2004-0404 (the Off-Road Large Spark Ignition 
Engines regulations request).
    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: January 5, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.
[FR Doc. 05-628 Filed 1-11-05; 8:45 am]
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