[Federal Register Volume 71, Number 99 (Tuesday, May 23, 2006)]
[Notices]
[Pages 29621-29623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7834]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-8173-3]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Authorization of Large Off-Road Spark-Ignition Engine 
Standards, Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision for authorization of Large Off-Road Spark-
Ignition Engine Standards.

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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 its 
regulations setting emission standards and other requirements for large 
off-road spark-ignition engines.

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 OATR-2004-0404 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) 566-1744, 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, 
Office of Transportation and Air Quality, (6403J), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, D.C. 
20460 (U.S. mail), 501 3rd Street NW., 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 ``Federal Register Notices.'' (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 the Federal government's electronic public docket and 
comment system. You may access EPA dockets at http://www.regulations.gov. After opening the http://www.regulations.gov Web 
site, select ``Environmental Protection Agency'' from the pull-down 
Agency list, then scroll to Docket ID EPA-HQ-OAR-2004-0404 to view 
documents in the record of the large offroad spark ignition engine 
authorization request. 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.

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

[[Page 29622]]

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 she finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the Act. Previous decisions granting waivers of Federal 
preemption for motor vehicles have stated that 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 (DC 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 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)

[[Page 29623]]

regulations.\11\ 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 liters displacement, and the other for LSI engines 
greater than 1.0 liters 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 a 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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    \11\ 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 Initial Staff Report, Docket Entry 
OAR-2004-0404-0008, p1.
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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.
    EPA offered the opportunity for a public hearing, and requested 
public comments, on the CARB authorization request, as the Act requires 
us to do, by publication of a Federal Register notice to such effect on 
January 12, 2005.\12\ There was no request for a public hearing, nor 
were any comments received on the CARB authorization request. 
Therefore, EPA has made this determination based on the information 
submitted by CARB in its request.
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    \12\ 70 FR 2151 (January 12, 2005).
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(C) Authorization Decision

    EPA has decided to grant California authorization to enforce its 
regulations setting emission standards and other requirements for large 
off-road spark-ignition engines. In its request letter, CARB stated 
that these LSI regulations 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 expected from the LSI 
regulations remains compelling. Finally, regarding consistency with 
section 209, CARB stated that the LSI regulations (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 
certification requirements inconsistent with 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 LSI regulations.
    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 
July 24, 2006. 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: May 15, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. E6-7834 Filed 5-22-06; 8:45 am]
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