[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Notices]
[Pages 38153-38155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16398]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9427-1]


California State Nonroad Engine Pollution Control Standards; 
Commercial Harbor Craft Regulations; 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 regulations for the control of emissions of 
particulate matter and oxides of nitrogen from new and in-use diesel-
fueled engines on commercial harbor craft. CARB has requested that EPA 
issue a new authorization under section 209(e) of the Clean Air Act for 
the emission standards established by these regulations. This notice 
announces that EPA has tentatively scheduled a public hearing to 
consider California's authorization request, and that EPA is now 
accepting written comments on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request for July 21, 2011, at 1 p.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 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 will 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 Tayyaba Waqar at (202) 343-9182, to learn if a hearing will be 
held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2011-0549, 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-
2011-0549, 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-2011-0549. 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 website 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

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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-2011-0549. 
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 
website, enter EPA-HQ-OAR-2010-0549, 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 Commercial Harbor Craft Regulations

    In a letter dated April 12, 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 emission standards for new 
and in-use commercial harbor craft operated within California waters 
and twenty-four nautical miles of the California baseline (``commercial 
harbor craft regulations'' or ``CHC regulations'').\1\ The CARB Board 
approved the commercial harbor craft regulations at its November 15, 
2007 hearing (by Resolution 07-47).\2\ After making modifications, as 
directed by the Board, CARB's Executive Officer formally adopted the 
rulemaking in Executive Order R-08-007 on September 2, 2008.\3\ CARB's 
commercial harbor craft regulations became operative under California 
state law on November 19, 2008.\4\ The regulations are codified in 
title 13, California Code of Regulations (CCR), section 2229.5 and 
title 17, CCR section 93118.5.\5\ California's commercial harbor craft 
regulations establish emission standards; requirements related to the 
control of emissions; and enforcement provisions. The requirements are 
applicable to diesel propulsion and auxiliary engines on new and in-use 
commercial harbor crafts, with some exceptions.\6\ Commercial harbor 
craft include a variety of different types of vessels, including 
ferries, excursion vessels, tugboats, towboats, and commercial and 
charter fishing boats. Approximately eighty percent of commercial 
harbor craft engines operating in California are previously unregulated 
diesel engines, accounting for approximately 3.3 tons per day (tpd) of 
diesel particulate matter (PM) and 73 tpd of oxides of nitrogen 
(NOX). California's commercial harbor craft regulations aim 
to reduce these emissions so that California can meet the 2014 National 
Ambient Air Quality Standards (NAAQS) deadline for PM2.5 in 
the South Coast Air Basin. The commercial harbor craft regulations 
apply separately to new and in-use engines used on harbor craft.\7\
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    \1\ Letter from James Goldstene to Lisa P. Jackson, EPA-HQ-OAR-
2011-0549-0001.
    \2\ CARB Attachment 10, Resolution 07-47, EPA-HQ-OAR-2011-0549-
0027.
    \3\ CARB Attachment 11, Executive Order R-08-007, EPA-HQ-OAR-
2011-0549-0030.
    \4\ See CARB Attachment 16, California Office of Administrative 
Law, Approval Notice, EPA-HQ-OAR-2011-0549-0035.
    \5\ See CARB Attachment 15, California Office of Administrative 
Law, Final Regulation Order, EPA-HQ-OAR-2011-0549-0034.
    \6\ See CARB, Authorization Support Document, p. 5, EPA-HQ-OAR-
2011-0549-0002.
    \7\ CARB, Authorization Support Document, EPA-HQ-OAR-2011-0549-
0002.
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    For new harbor crafts, each propulsion and auxiliary diesel engine 
on the vessel is required to be certified to the most stringent federal 
new marine engine emissions standards for that engine's power rating 
and displacement in effect at the time of sale, lease, rent, or 
acquisition. The regulation imposes additional requirements for larger 
new ferries (with the capacity to transport seventy-five or more 
passengers), either by using best available control technology 
(``BACT''),\8\ or by using a federal Tier 4 certified propulsion 
engine.
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    \8\ BACT is the diesel emission control strategy (DECS) 
determined by CARB to be the greatest feasible reduction of 
NOX or PM when used with the ferry's propulsion engines 
and does not result in an increase of ten percent or more of any air 
pollutant including NOX or PM, relative to the engine's 
emission of that air pollutant without the use of BACT and use of 
DECS on or with engine does not invalidate or otherwise adversely 
affect the propulsion engine's original warranty.
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    For in-use harbor craft, newly acquired new or in-use harbor craft 
may not be sold, offered for sale, leased, rented, or acquired unless 
the diesel propulsion or auxiliary engines are certified to at least 
the federal Tier 2 or Tier 3 marine emission standards for new engines 
of the same power rating and displacement. In-use emission requirements 
are imposed on Tier 0 and Tier 1 marine engines in ferries, excursion 
vessels, tugboats, towboats, push boats, and multipurpose harbor craft. 
Those harbor crafts are required to meet emission limits equal to or 
cleaner than the federal new marine engine certification standards in 
effect for the year that in-use engine compliance is required.
    California's commercial harbor craft regulations also impose 
requirements related to monitoring, reporting and recordkeeping of 
compliance on owners and operators of new and in-use harbor craft. 
Subject to CARB approval, harbor craft owners and operators may opt to 
meet requirements by implementing alternative emission control 
strategies.\9\
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    \9\ Alternative emission control strategies can include engine 
modification, exhaust after-treatment control, engine repower, use 
of alternative fuels or fuel additives, or fleet averaging. See 
CARB, Authorization Support Document, EPA-HQ-OAR-2011-0549-0002.
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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

[[Page 38155]]

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\ 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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    \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.
    \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 relevant to a full 
section 209(e) 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-2011-0549.
    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 T. Oge,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.

[FR Doc. 2011-16398 Filed 6-28-11; 8:45 am]
BILLING CODE 6560-50-P