[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Notices]
[Pages 38155-38158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16395]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9426-9]


California State Nonroad Engine Pollution Control Standards; 
Ocean-Going Vessels At-Berth in California Ports; Opportunity for 
Public Hearing and 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 airborne toxic control measures for auxiliary 
diesel engines operated on ocean-going vessels at-berth in California 
ports (``At-Berth Regulation''). The At-Berth Regulation is designed to 
reduce emissions of oxides of nitrogen and particulate matter from 
auxiliary diesel engines on container vessels, passenger vessels and 
refrigerated cargo vessels while they are docked at specified 
California ports. CARB has requested that EPA grant a new full 
authorization pursuant to Clean Air Act section 209(e) for this 
regulation. This notice announces that EPA has tentatively scheduled a 
public hearing to consider California's At-Berth Regulation, and that 
EPA is now accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on July 21, 2011, at 10 a.m. EST. EPA will hold a hearing only 
if any party notifies EPA by July 15, 2011, expressing its interest in 
presenting oral testimony. Parties wishing to present oral testimony at 
the public hearing should provide written notice to Kristien Knapp at 
the e-mail address

[[Page 38156]]

noted below. If EPA receives a request for a public hearing, that 
hearing will be held at 1310 L Street, NW., Washington, DC 20005. 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 until 
August 22, 2011.
    By July 20, 2011, any person who plans to attend the hearing may 
call Ryan G. Rudich at (202) 343-9188, to learn if a hearing will be 
held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2011-0548, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2011-0548, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID No. EPA-HQ-OAR-2011-0548. EPA's policy is that all 
comments we receive 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 automatically be 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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation Docket and 
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2011-0548. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Air and 
Radiation Docket in the EPA Headquarters Library, EPA West Building, 
Room 3334, located at 1301 Constitution Avenue, NW., Washington, DC. 
The Public Reading Room is open to the public on all federal government 
work days from 8:30 a.m. to 4:30 p.m.; generally, it is open Monday 
through Friday, excluding holidays. The telephone number for the 
Reading Room is (202) 566-1744. The Air and Radiation Docket and 
Information Center's Web site is http://www.epa.gov/oar/docket.html. 
The electronic mail (e-mail) address for the Air and Radiation Docket 
is: [email protected], the telephone number is (202) 566-1742, and 
the fax number is (202) 566-9744. 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, enter EPA-HQ-OAR-2011-0548, in the ``Enter Keyword or ID'' fill-
in box to view documents in the record. 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.
    EPA's Office of Transportation and Air Quality also maintains a 
webpage that contains general information on its review of California 
waiver requests. Included on that page are links to prior waiver and 
authorization Federal Register notices; the page can be accessed at 
http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Attorney-Advisor, 
Compliance and Innovative Strategies Division, Office of Transportation 
and Air Quality, U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: 
(202) 343-9949. Fax: (202) 343-2804. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. California's At-Berth Regulation

    By letter dated August 2, 2010, CARB submitted to EPA its request 
pursuant to section 209(e) of the Clean Air Act (``CAA'' or ``the 
Act''), regarding its regulations to enforce its airborne toxic control 
measures (ATCM) for auxiliary diesel engines operated on ocean-going 
vessels at-berth in California ports (``At-Berth Regulation'').\1\ The 
At-Berth Regulation is designed to significantly reduce emissions of 
diesel particulate matter (PM), which is a CARB-identified toxic air 
contaminant, oxides of nitrogen (NOX), and carbon dioxide 
(CO2), a greenhouse gas. These reductions will assist 
California in meeting federal and state ambient air quality standards 
for the South Coast and San Joaquin Valley air basins for ozone and 
fine particulate matter (PM2.5). CARB approved the At-Berth 
Regulation at a public hearing on December 6, 2007 (by Resolution 07-
57).\2\ After making modifications to the regulation available on 
August 22, 2008 for supplemental public comment, CARB's Executive 
Officer formally adopted the At-Berth Regulation in Executive Order R-
08-013 on October 16, 2008.\3\ The At-Berth Regulation is codified in 
title 13, California Code of Regulations, section 2299.3, and title 17, 
California Code of Regulations, section 93118.3.\4\
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    \1\ California Air Resources Board (``CARB''), ``Request for 
Authorization,'' August 2, 2010, EPA-HQ-OAR-2011-0548-0001.
    \2\ CARB Attachment 4, ``Resolution 07-57,'' EPA-HQ-
OAR-2011-0548-0006.
    \3\ CARB Attachment 6, ``Executive Order R-08-013,'' 
EPA-HQ-OAR-2011-0548-0008.
    \4\ CARB Attachment 8, ``Final Regulation Order for 
title 13, CCR section 2299.3,'' EPA-HQ-OAR-2011-0548-0010; CARB 
Attachment 9, ``Final Regulation Order for title 17, CCR 
section 93118.3,'' EPA-HQ-OAR-2011-0548-0011.
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    CARB's At-Berth Regulation contains requirements that apply, with 
limited exceptions,\5\ to any person who owns,

[[Page 38157]]

operates, charters, rents or leases any container vessel, passenger 
vessel, or refrigerated cargo vessel that visits any of six specified 
California ports.\6\ It also contains requirements that affect any 
person who owns or operates those ports or terminals located at them.
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    \5\ The following vessels are exempt from the At-Berth 
Regulation: ocean going vessel voyages consisting of continuous and 
expeditious navigation (i.e., traversing Regulated California Waters 
without entering California internal estuarine waters or calling at 
a port); vessels owned or operated by local, state, federal, or 
foreign governments in government non-commercial services; 
steamships; auxiliary engines using natural gas; and fleets composed 
solely of container or refrigerated cargo vessels making fewer than 
twenty-five (25) visits to the same California port in a Calendar 
year or fleets composed solely of passenger vessels making fewer 
than five (5) visits to the same California port in a calendar year. 
Exemptions also exist for emergency events and hotelling required by 
a federal agency. Title 17, California Code of Regulations (CCR), 
section 93118.3(b)(3), CARB Attachment 9, ``Final 
Regulation Order for title 17, CCR section 93118.3,'' EPA-HQ-OAR-
2011-0548-0011.
    \6\ The At-Berth Regulation applies to vessels docked at six 
California ports: the Port of Hueneme, the Port of Los Angeles, the 
Port of Long Beach, the Port of Oakland, the Port of San Diego, and 
the Port of San Francisco.
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    The At-Berth Regulation requires fleets of container vessels, 
passenger vessels and refrigerated cargo vessels to either: (1) Limit 
the amount of time they operate their auxiliary diesel engines by 
connecting to shore power for most of a vessel's stay at port (``Shore 
Power Option''); or (2) achieve equivalent emission reductions by 
employing other emission control techniques (``Equivalent Emission 
Reduction Option'').\7\ Fleet operators that elect the Shore Power 
Option are required to obtain the power that would otherwise be 
provided by a vessel's auxiliary engines by connecting to shore power 
for a percentage of the fleet's annual port visits.\8\ The required 
percentage of shore power connected port visits increases over the life 
of the regulation. Specifically, fifty percent of a fleet's total 
visits must be connected to shore power by 2014, followed by seventy 
percent by 2017, and eighty percent by 2020. Additionally, if a vessel 
is equipped to connect to shore power and it visits a berth equipped to 
provide compatible power, the vessel must use the shore power provided.
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    \7\ ``Fleet'' means ``all container, passenger, and refrigerated 
cargo vessels, visiting a specific California port, which are owned 
and operated by, or otherwise under the direct control, of the same 
Person * * * For purposes of this section, a person shall be deemed 
to have separate fleets for each California port visited and each 
fleet is composed of one type of vessel.'' Title 17, CCR section 
93118.3(c)(16). See also CARB, ``Authorization Support Document,'' 
EPA-HQ-OAR-2011-0548-0002.
    \8\ ``Shore power'' is defined as ``electrical power being 
provided by either the local utility or by distributed generation.'' 
CARB Attachment 9, ``Final Regulation Order for title 17, CCR 
section 93118.3,'' EPA-HQ-OAR-2011-0548-0011.
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    Fleet operators that elect the Equivalent Emission Reduction Option 
must reduce their fleet's auxiliary engine emissions by specific 
amounts below the fleet's baseline emissions by specific dates.\9\ This 
option requires that a fleet achieve a ten percent reduction from the 
fleet's baseline emissions by 2010, a twenty-five percent reduction by 
2012, a fifty percent reduction by 2014, a seventy percent reduction by 
2017, and an eighty percent reduction by 2020. Emission reductions can 
be achieved by: (1) Using grid-based shore power; (2) using distributed 
generation equipment to provide power to the vessel; (3) using 
alternative emission controls onboard a vessel or at the berth; or (4) 
using a combination of these techniques. Fleets that achieve reductions 
of emissions of oxides of nitrogen or particulate matter in excess of 
the prescribed reductions receive fleet emission credits that can be 
used to comply with emission reduction requirements in subsequent 
years.
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    \9\ CARB, ``Authorization Support Document,'' August 2, 2010, 
EPA-HQ-OAR-2011-0548-0002.
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    The At-Berth Regulation also requires operators of terminals that 
received more than fifty vessel visits in 2008 to submit terminal plans 
identifying how the terminals would be upgraded to accommodate vessels 
under the two compliance options and including a schedule for 
implementing the needed infrastructure improvements. They are required 
to submit plan updates at a frequency dependent upon the compliance 
option selected by the vessel fleet owner or operator and the 
terminals.

II. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts 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.
    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 the control of emissions 
from new engines not listed under section 209(e)(1), if certain 
criteria are met. EPA has promulgated regulations implementing these 
provisions at 40 CFR part 1074. These regulations set forth the 
criteria that EPA must consider before granting California 
authorization to enforce its new nonroad emission standards.\10\
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    \10\ Title 40 of the Code of Federal Regulations, part 1074.105 
provides:
    (a) The Administrator will grant the authorization if California 
determines that its standards will be, in the aggregate, at least as 
protective of public health and welfare as otherwise applicable 
federal standards.
    (b) The authorization will not be granted if the Administrator 
finds that any of the following are true:
    (1) California's determination is arbitrary and capricious.
    (2) California does not need such standards to meet compelling 
and extraordinary conditions.
    (3) The California standards and accompanying enforcement 
procedures are not consistent with section 209 of the Act.
    (c) In considering any request from California to authorize the 
state to adopt or enforce standards or other requirements relating 
to the control of emissions from new nonroad spark-ignition engines 
smaller than 50 horsepower, the Administrator will give appropriate 
consideration to safety factors (including the potential increased 
risk of burn or fire) associated with compliance with the California 
standard.
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    As stated in the preamble to the section 209(e) rule, EPA has 
historically interpreted the section 209(e)(2)(iii) ``consistency'' 
inquiry to require, at minimum, that California standards and 
enforcement procedures 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 section 209(b) motor vehicle waivers).\11\
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    \11\ See 59 FR 36969 (July 20, 1994).
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    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. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests. Pursuant to 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 and authorizations have noted that 
state standards and enforcement procedures are inconsistent with 
section 202(a) if: (1) There is inadequate lead time to permit the 
development of the necessary technology giving appropriate 
consideration to the cost of compliance within that time, or (2) the 
federal and state testing procedures impose inconsistent certification 
requirements.

III. EPA's Request for Comments

    As stated above, EPA is offering the opportunity for a public 
hearing, and requesting written comment on issues

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relevant to a full authorization analysis. Specifically, we request 
comment on: (a) Whether 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) whether 
California needs such standards to meet compelling and extraordinary 
conditions, and (c) whether California's standards and accompanying 
enforcement procedures are consistent with section 209 of the Act.

IV. Procedures for Public Participation

    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 August 22, 2011. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record from the public hearing, if any, all relevant 
written submissions, and other information that she deems pertinent. 
All information will be available for inspection at the EPA Air Docket 
No. EPA-HQ-OAR-2011-0548.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information'' 
(``CBI''). If a person making comments wants EPA to base its decision 
on a submission labeled as CBI, then a non-confidential version of the 
document that summarizes the key data or information should be 
submitted to the public docket. To ensure that proprietary information 
is not inadvertently placed in the public 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 according to 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: June 24, 2011.
Margo Tsirigotis Oge,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2011-16395 Filed 6-28-11; 8:45 am]
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