[Federal Register Volume 79, Number 226 (Monday, November 24, 2014)]
[Notices]
[Pages 69845-69848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27801]


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 ENVIRONMENTAL PROTECTION AGENCY

[FRL-9919-57-OAR]


California State Nonroad Engine Pollution Control Standards; 
Large Spark-Ignition Engines Regulation; Request for Authorization; 
Opportunity for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The California Air Resources Board (CARB) has notified the 
Environmental Protection Agency (EPA) that it has adopted amendments to 
its large spark-ignited engines regulation (LSI amendments). By letter 
dated June 2, 2014, CARB asked that EPA either confirm that the LSI 
amendments (adopted in 2008 and 2010) are within the scope of prior 
authorizations or that EPA issue a full authorization for those LSI 
amendments found not to be within the scope of prior authorizations, 
pursuant to section 209(e) of the Clean Air Act (CAA or Act). This 
notice announces that EPA has tentatively scheduled a public hearing to 
consider California's authorization request for the LSI amendments, and 
that EPA is now accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on January 14, 2015, at 10 a.m. ET. EPA will hold a hearing 
only if any party notifies EPA by December 15, 2014, to express 
interest in presenting the agency with oral testimony. Parties that 
wish to present oral testimony at the public hearing should provide 
written notice to David Dickinson at the email address noted below. If 
EPA receives a request for a public hearing, that hearing will be held 
at the William Jefferson Clinton Building (North), Room 5530, 1200 
Pennsylvania Avenue NW., Washington, DC 20460. If EPA does not receive 
a request for a public hearing, then EPA will not hold a hearing, and 
instead will consider CARB's request based on written submissions to 
the docket. Any party may submit written comments until February 16, 
2015.
    Any person who wishes to know whether a hearing will be held may 
call David Dickinson at (202) 343-9256 on or after December 17, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0533, by one of the following methods:
     Online at http://www.regulations.gov: Follow the Online 
Instructions for Submitting Comments.
     Email: [email protected].
     Fax: (202) 566-9744.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2014-0533, U.S. Environmental Protection Agency, Mail code: 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.
    Online Instructions for Submitting Comments: Direct your comments 
to

[[Page 69846]]

Docket ID No. EPA-HQ-OAR-2014-0533. 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 email. 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 email comment directly to EPA without 
going through http://www.regulations.gov, your email 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-2014-0533. 
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 (email) 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, 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 Web 
page that contains general information on its review of California 
waiver and authorization 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: David Dickinson, Attorney-Advisor, 
Compliance Division, Office of Transportation and Air Quality, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue (6405A) NW., 
Washington, DC 20460. Telephone: (202) 343-9256. Fax: (202) 343-2804. 
Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. California's LSI Regulations

    CARB promulgated its first LSI regulations, applicable to new LSI 
engines, in 1999 and they remained unchanged until the 2008 
amendments.\1\ EPA authorized the LSI regulations, on May 15, 2006.\2\ 
The 1999 LSI regulations established exhaust emission standards and 
associated test procedures for LSI engines based upon engine 
displacements. The exhaust emission standards applicable to 2002 and 
subsequent model years (MYs) with displacements up to one liter were 
identical to the emission standards applicable to California small off-
road engines (SORE) with engines greater than or equal to 225 cubic 
centimeters and have remained unchanged except CARB subsequently 
adopted more stringent exhaust emission standards for engines greater 
than 225 cubic centimeters.\3\ CARB adopted its initial off-road LSI 
fleet operator regulations on May 25, 2006 (Fleet Operator 
Regulations).\4\ The Fleet Operator Regulations are designed to address 
the hydrocarbon and nitrogen oxide emissions from existing LSI engines 
operating in California and require fleets to meet certain fleet 
average emission level standards.
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    \1\ Title 13, California Code of Regulations, sections 2430-
2439.
    \2\ 71 FR 29623 (May 15, 2006).
    \3\ EPA granted an authorization for these amendments at 71 FR 
75536 (December 15, 2006). CARB also adopted amendments establishing 
more stringent exhaust emission standards for engines equal to or 
greater than one liter in 2007 and EPA granted an authorization for 
these amendments at 77 FR 20388 (April 4, 2012).
    \4\ EPA granted an authorization for these regulations at 77 FR 
20388 (April 4, 2012).
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    CARB adopted the 2008 LSI amendments on November 21, 2008. The 2008 
LSI amendments create two new engine categories below one liter 
displacement, with new more stringent exhaust and evaporative emission 
standards applicable to new engines, and provide clarification as to 
when CARB's off-road sport or utility regulations apply to certain LSI 
engines.
    CARB adopted the 2010 LSI amendments on December 17, 2010. These 
amendments are designed to provide compliance flexibility which will 
allow operators to reduce their compliance costs while retaining the 
emission benefits associated with the original regulations.
    By letter dated June 2, 2014, CARB submitted a request to EPA 
pursuant to section 209(e) of the CAA for authorization of its 2008 and 
2010 LSI amendments. CARB seeks EPA's confirmation that these 
amendments fall within the scope of EPA's previous authorization, or, 
in the alternative, a full authorization.

II. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the CAA prohibits states and local governments 
from adopting or attempting to enforce any standard or requirement 
relating to the control of emissions from new nonroad vehicles or 
engines. The Act also preempts states from adopting and enforcing 
standards and other requirements related to the control of emissions 
from non-new nonroad engines or vehicles. Section 209(e)(2), however, 
requires the Administrator, after notice and opportunity for public 
hearing, to authorize California to adopt and enforce standards and 
other requirements relating to the control of emissions from such 
vehicles or engines if California determines that California standards 
will be, in the aggregate, at least as protective of public health and 
welfare as applicable Federal standards. However, EPA shall not grant 
such authorization if it finds that (1) the

[[Page 69847]]

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 [CAA section 209].\5\ In 
addition, other states with air quality attainment plans may adopt and 
enforce such regulations if the standards, and implementation and 
enforcement procedures, are identical to California's standards. On 
July 20, 1994, EPA promulgated a rule that sets forth, among other 
things, regulations providing the criteria, as found in section 
209(e)(2), which EPA must consider before granting any California 
authorization request for new nonroad engine or vehicle emission 
standards.\6\ EPA revised these regulations in 1997.\7\ As stated in 
the preamble to the 1994 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).\8\
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    \5\ EPA's review of California regulations under section 209 is 
not a broad review of the reasonableness of the regulations or its 
compatibility with all other laws. Sections 209(b) and 209(e) of the 
Clean Air Act limit EPA's authority to deny California requests for 
waivers and authorizations to the three criteria listed therein. As 
a result, EPA has consistently refrained from denying California's 
requests for waivers and authorizations based on any other criteria. 
In instances where the U.S. Court of Appeals has reviewed EPA 
decisions declining to deny waiver requests based on criteria not 
found in section 209(b), the Court has upheld and agreed with EPA's 
determination. See Motor and Equipment Manufacturers Ass'n v. 
Nichols, 142 F.3d 449, 462-63, 466-67 (D.C. Cir.1998), Motor and 
Equipment Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20 
(D.C. Cir. 1979). See also 78 FR 58090, 58120 (September 20, 2013).
    \6\ 59 FR 36969 (July 20, 1994).
    \7\ 62 FR 67733 (December 30, 1997). The applicable regulations, 
now in 40 CFR part 1074, subpart B, Sec.  1074.105, provide:
    (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 to authorize California 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.
    \8\ 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.\9\
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    \9\ Id. See also 78 FR 58090, 58092 (September 20, 2013).
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    If California amends regulations that EPA has already authorized, 
California can seek EPA confirmation that the amendments are within the 
scope of the previous authorization. A within-the-scope confirmation, 
without a full authorization review, is permissible if three conditions 
are met.\10\ First, the amended regulations must not undermine 
California's determination that its standards, in the aggregate, are as 
protective of public health and welfare as applicable Federal 
standards. Second, the amended regulations must not affect consistency 
with section 202(a) of the Act. Third, the amended regulations must not 
raise any ``new issues'' affecting EPA's prior authorizations.
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    \10\ See 78 FR 38970, 38972 (June 28, 2013).
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III. EPA's Request for Comments

    As stated above, EPA is offering the opportunity for a public 
hearing, and is requesting written comment on issues relevant to a 
within-the-scope analysis. Specifically, we request comment on whether 
California's LSI amendments: (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; or (c) raise any other new issues affecting 
EPA's previous waiver or authorization determinations.
    Should any party believe that the amendments are not within the 
scope of the previous authorization, EPA also requests comment on 
whether the LSI amendments meet the criteria for a full authorization. 
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 February 16, 2015. 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-2014-0533.
    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.

[[Page 69848]]

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: November 12, 2014.
Christopher Grundler,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2014-27801 Filed 11-21-14; 8:45 am]
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