[Federal Register Volume 70, Number 223 (Monday, November 21, 2005)]
[Notices]
[Pages 70075-70077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22995]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-7994-9]


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 comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted an Airborne Toxic Control Measure (ATCM) 
establishing in-use performance standards for transport refrigeration 
units (TRU) and TRU generator sets that will be phased-in commencing on 
December 31, 2008. By letter dated March 28, 2005, CARB requested that 
EPA grant California authorization for such standards under section 
209(e)(2) of the Clean Air Act (CAA), 42 U.S.C. 7543(b) (EPA frequently 
calls such authorizations ``waivers of preemption''). This notice 
announces that EPA has tentatively scheduled a public hearing 
concerning California's request and that EPA is accepting written 
comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on January 3, 2006 beginning at 10 a.m. EPA will hold a hearing 
only if a party notifies EPA by December 16, 2005, expressing its 
interest in presenting oral testimony. By December 21, 2005, any person 
who plans to attend the hearing should call Robert M. Doyle at (202) 
343-9258 to learn if a hearing will be held. If EPA does not receive a 
request for a public hearing, then EPA will not hold a hearing, and 
instead consider CARB's request based on written submissions to the 
docket. Any party may submit written comments by February 6, 2006.

ADDRESSES: 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 official public docket is the collection of materials that 
is available for public viewing at the Air and Radiation 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 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 and Radiation Docket is 
(202) 566-1743. The reference number for this docket is OAR-2005-0123. 
Parties wishing to present oral testimony at the public hearing should 
provide written notice to Robert M. Doyle at the address noted below. 
If EPA receives a request for a public hearing, EPA will hold the 
public hearing at 1310 L St., NW., Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Compliance and 
Innovative Strategies Division (6405J), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Telephone: 
(202) 343-9258, Fax: (202) 343-2804, e-mail address: 
[email protected]. EPA will make available an electronic copy of 
this Notice on the Office of Transportation and Air Quality's (OTAQ's) 
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. Parties 
wishing to present oral testimony at the public hearing should provide 
written notice to Robert M. Doyle at: U.S. Environmental Protection 
Agency, 1200 Pennsylvania

[[Page 70076]]

Ave., NW., (6405J), Washington, DC 20460. Telephone: (202) 343-9258.
    Docket: 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, the public docket does not include Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Once in the edocket system, select ``search,'' 
then key in the appropriate docket ID number.

SUPPLEMENTARY INFORMATION:

(A) Background and Discussion

    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 
and they are as follows:
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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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    (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 ``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.
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    Finally, because California's nonroad standards and enforcement 
procedures must be consistent with section 209(b)(1)(C), EPA reviews 
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 
procedures.\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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    CARB's March 28, 2005 letter to the Administrator notified EPA that 
it had adopted an Airborne Toxic Control Measure (ATCM) on February 26, 
2004 establishing in-use performance standards for TRUs and TRU 
generator sets. This regulation can be found at title 13, California 
Code of Regulations (CCR), division 3, section 2477.

Procedures for Public Participation

    In recognition that public hearings are 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 February 6, 2006. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record of the public hearing(s), if any, relevant written 
submissions, and other information that he deems pertinent. All 
information will be available for inspection at EPA Air Docket. (OAR-
2005-0123).
    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

[[Page 70077]]

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 3, 2005.
Elizabeth Craig,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 05-22995 Filed 11-18-05; 8:45 am]
BILLING CODE 6560-50-P