[Federal Register Volume 72, Number 59 (Wednesday, March 28, 2007)]
[Notices]
[Pages 14546-14548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5665]


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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-8292-8]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Authorization of Marine Outboard, Personal Watercraft and 
Tier One Inboard/Sterndrive Engine Standards, Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision for Authorization of California Marine 
Outboard, Personal Watercraft and Tier One Inboard/Sterndrive Engine 
Emission Standards.

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SUMMARY: EPA today, pursuant to section 209(e) of the Clean Air Act 
(Act), 42 U.S.C. 7543(e), is granting California its requests for 
authorization of its Marine Spark-Ignition Engines regulations for 
outboard and personal watercraft engines in their entirety, and for the 
first tier of regulations affecting inboard and sterndrive engines. EPA 
is deferring an authorization decision on the second tier of inboard 
and sterndrive standards pending the completion of testing currently 
underway to evaluate the technological feasibility of both the 
California inboard and sterndrive standards and Federal inboard and 
sterndrive standards which are expected to be proposed regulations in 
2007.

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 
California, are available for public inspection in EPA Air and 
Radiation Docket and Information Center (Air Docket). Materials 
relevant to this decision are contained in Docket OAR-2004-0403 at the 
following location: EPA Air Docket, Room 3334, 1301 Constitution Avenue 
NW., Washington, DC 20460. The EPA Docket Center Public Reading Room is 
open from 8 a.m. to 5:30 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, 
Office of Transportation and Air Quality, (6403J), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 
(U.S. mail), 1310 L 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-2004-0403 to view 
documents in the record of this Marine Authorization Request docket. 
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 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

[[Page 14547]]

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. 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 (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) Summary of Background Requests

    The California Air Resources Board (CARB) submitted to EPA three 
separate but related requests to authorize various marine spark 
ignition engine regulations. EPA examined all three submissions 
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 (OB) 
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 requiring emissions at levels 
approximately 80% of the EPA 2006 standards, and a third tier, 
commencing in 2008, requiring emissions at levels approximately 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

[[Page 14548]]

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 (IB/SD) 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, all engines subject to the standard must comply 
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 IB/SD regulations require 
on-board diagnostics for these engines. Finally, as part of the IB/SD 
rulemaking, CARB adopted some minor amendments to the OB and PWC 
regulations to clarify some definitions and labeling requirements made 
necessary by the adoption of the regulations for IB/SD 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 are 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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    As required by the Act, EPA offered the opportunity for a public 
hearing and requested public comments on these new standards by 
publication of a Federal Register notice to such effect on January 12, 
2005.\14\ EPA received a request for a hearing from the National Marine 
Manufacturers Association,\15\ and a hearing was held on February 28, 
2005.\16\ In addition, EPA received post-hearing written comments for 
the Docket of this proceeding from the U.S. Coast Guard, the 
Manufacturers of Emissions Controls Association, the National Marine 
Manufacturers Association, several marine engine manufacturers, Senator 
Herb Kohl (D-WI), and Senator James Inhofe (R-OK), and a supplemental 
submission from CARB responding to matters raised at the public 
hearing.\17\ Accordingly, EPA has made this authorization decision 
based on the information submitted by CARB in its requests, and the 
information presented to the Agency at the public hearing and in the 
comments received after the hearing.
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    \14\ 70 FR 2151 (January 12, 2005).
    \15\ See Letter from John McKnight, National Marine 
Manufacturers Association, to Robert M. Doyle, USEPA, dated January 
27, 2005, Docket Entry 2004-0403-0030.
    \16\ Written Statements presented at this hearing and the 
hearing transcript appear in the Docket as Docket Entries 2004-0403-
0031 through 2004-0403-0036.
    \17\ These comments appear in the Docket as Docket Entries 2004-
0403-0037 through 2004-0403-0047.
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(C) Authorization Decision

    After review of the information submitted by CARB and other parties 
to the record of this Docket, EPA finds that no party has presented 
information to the Agency which would demonstrate that California did 
not meet the burden of satisfying the statutory criteria of section 
209(e). For this reason, EPA is granting authorization for the CARB 
Marine Spark-Ignition Engines regulations for OB and PWC engines in 
their entirety. With respect to the regulations affecting IB/SD 
engines, EPA grants authorization for CARB to enforce the first tier of 
these regulations for model year 2003 through 2008, which set 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. EPA is deferring an 
authorization decision on the second tier of standards which set 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. There is testing currently underway, performed as a joint 
program by CARB, EPA, the U.S. Coast Guard and the industry, to 
evaluate the technological feasibility of both the CARB IB/SD standards 
and Federal IB/SD standards which are expected to be proposed 
regulations in 2007. At the conclusion of this testing, EPA will issue 
its authorization decision for the second tier (i.e., for 2007 and 
beyond) CARB IB/SD 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 May 
29, 2007. 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: March 22, 2007.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. E7-5665 Filed 3-27-07; 8:45 am]
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