[Federal Register Volume 71, Number 106 (Friday, June 2, 2006)]
[Notices]
[Pages 32082-32084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8611]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-8178-7]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Amendments to the California Small Offroad Emission 
Standards; Opportunity for Public Hearing and Request for Written 
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 revised exhaust emissions standards and test 
procedures and new evaporative emissions standards and test procedures 
(and certification procedures) for small offroad engines. By letter 
dated April 11, 2005, CARB requested that EPA confirm that its exhaust 
emission standards and test procedures are within the scope of prior 
authorizations issued by EPA, and requested a new authorization for the 
evaporative emission standards, test procedures and certification 
procedures. This notice announces that EPA has tentatively scheduled a 
public hearing concerning California's requests and that EPA is 
accepting written comment on the requests.

DATES: EPA has scheduled a public hearing concerning CARB's requests on 
June 29, 2006 beginning at 10 a.m. Any party may submit written 
comments by August 1, 2006.

ADDRESSES: EPA will make available for public inspection at the Air and 
Radiation Docket and Information Center materials submitted by CARB, 
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 EPA-HQ-OAR-2005-0133. Parties wishing to present oral 
testimony at the public hearing should provide written notice to David 
Dickinson at the address noted below. EPA will hold the public hearing 
in room 1153 at EPA's ``East Building'' located at 1201 Constitution 
Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and 
Innovative Strategies Division (6405J), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Telephone: 
(202) 343-9256, Fax: (202) 343-2804, e-mail address: 
[email protected].

For Obtaining and Submitting Electronic Copies of Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-2005-0133, 
by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 343-2804.

[[Page 32083]]

     Mail: U.S. Environmental Protection Agency, EPA West (Air 
Docket), 1200 Pennsylvania Ave., NW., Room B108, Mail Code 6102T, 
Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2005-0133. 
Please include a total of two copies.
     Hand Delivery: EPA Docket Center, EPA/DC, EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are 
only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. Instructions: Direct your comments to Docket ID No EPA-HQ-
OAR-2005-0133.
    EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-
mail.
    The http://www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. 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. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy.

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\
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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.
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    Section 209(e)(2) of the Act requires 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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    \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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    Congress further directed EPA to ``give appropriate consideration 
to

[[Page 32084]]

safety factors (including the potential increased risk of burn or fire) 
associated with compliance with the California standard'' when 
considering any request from California to authorize the state to adopt 
or enforce standards or other requirements relating to the control of 
emission from new non-road spark-ignition engines smaller than 50 
horsepower.\8\
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    \8\ See Fiscal Year 2004 Omnibus Appropriations Act (Pub. L. 
108-199 Division G Section 428).
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    When EPA receives new waiver or authorization requests from CARB, 
EPA traditionally publishes a notice of opportunity for public hearing 
and comment and then publishes a decision in the Federal Register 
following the public comment period. In contrast, when EPA receives 
within the scope waiver requests from CARB, EPA usually publishes a 
decision in the Federal Register and concurrently invites public 
comment if an interested part is opposed to EPA's decision.
    Although CARB in its April 11, 2005 letter to EPA seeks 
confirmation that it exhaust emission amendments are within the scope 
of previous authorizations, EPA invites comment on whether California's 
exhaust emission standards and test procedures amendments, within the 
context of a within the scope analysis (a) Undermine California's 
previous determination that its standards, in the aggregate, are at 
least as protective of public health and welfare as comparable Federal 
standards, (b) affect the consistency of California's requirements with 
section 209 of the Act, and (c) raise new issues affecting EPA's 
previous authorization determinations. EPA also asks comment on how 
safety factors, including the potential increased risk of burn or fire, 
are affected by the California standards. Please also provide comment 
that if CARB's exhaust emission standards and test procedures 
amendments were not found to be within the scope of previous 
authorizations and instead required a full authorization analysis, 
whether (a) CARB's determination that its standards, in the aggregate, 
are at least as protective of public health and welfare as applicable 
Federal standards is arbitrary and capricious, (b) California needs 
separate standards to meet compelling and extraordinary conditions, and 
(c) California's standards and accompanying enforcement procedures are 
consistent with section 209 of the Act. EPA also asks comment on how 
safety factors, including the potential increased risk of burn or fire, 
are affected by the California standards.
    EPA also invites comment on CARB's evaporative emission standards 
and test procedures (for which CARB seeks a full authorization) and 
whether (a) CARB's determination that its standards, in the aggregate, 
are at least as protective of public health and welfare as applicable 
federal standards is arbitrary and capricious, (b) California needs 
separate standards to meet compelling and extraordinary conditions, and 
(c) California's standards and accompanying enforcement procedures are 
consistent with section 209 of the Act. EPA also asks comment on how 
safety factors, including the potential increased risk of burn or fire, 
are affected by the California standards.

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.
    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. EPA will keep the 
record open until August 1, 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, relevant written 
submissions, and other information that he deems pertinent. All 
information will be available for inspection at EPA Air Docket. (EPA-
HQ-OAR-2005-0133).
    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: May 26, 2006.
William L. Wehrum,
Acting Assistant Administrator, Office of Air and Radiation.
 [FR Doc. E6-8611 Filed 6-1-06; 8:45 am]
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