[Federal Register Volume 79, Number 226 (Monday, November 24, 2014)]
[Notices]
[Pages 69842-69845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27807]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9919-53-OAR]


California State Nonroad Engine Pollution Control Standards; 
Diesel Engines on Commercial Harbor Craft; Request for Within-the-Scope 
and Full 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 Commercial Harbor Craft regulation (CHC amendments). By letter 
dated May 28, 2014, CARB asked that EPA authorize these amendments 
pursuant to section 209(e) of the Clean Air Act (CAA or Act). CARB 
seeks confirmation that certain of the amendments are within the scope 
of a prior authorization issued by EPA, and that certain of the 
amendments require and merit a full authorization. This notice 
announces that EPA has tentatively scheduled a public hearing to 
consider California's request for authorization of the CHC amendments, 
and that EPA is now

[[Page 69843]]

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 Ave. NW., Washington, DC 20460. 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 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-2014-0534, 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-
2014-0534, 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 Docket ID No. EPA-HQ-OAR-2014-0534. 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-2014-0534. 
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 CHC Regulation, Prior Authorization, Within-the-Scope 
Request, and New Request

    CARB formally approved its original CHC regulation on November 15, 
2007. The original CHC regulation established in-use emission limits 
for in-use ferries, excursion vessels, tugboats, and towboats equipped 
with federal Tier 0 and Tier 1 propulsion and auxiliary marine engines. 
Owners and operators of these vessels were required to upgrade the 
engines to meet emission limits equal to or cleaner than federal Tier 2 
or Tier 3 marine engine certification standards, according to a 
compliance schedule that was also set forth in the regulation. The 
compliance schedule was based on the model year of the original engine, 
its hours of operation, and the vessel's home port location. On 
December 5, 2011, EPA granted California an authorization for the 
original CHC regulation.\1\
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    \1\ 76 FR 77521 (December 5, 2011).
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    CARB subsequently adopted the CHC amendments on June 24, 2010.\2\ 
The CHC amendments are codified at title 17, California Code of 
Regulations (CCR), section 93118.5.\3\ By letter dated May 28, 2014, 
CARB submitted a request to EPA pursuant to section 209(e) of the CAA, 
regarding authorization of its CHC amendments.\4\ The CHC amendments 
set forth a variety

[[Page 69844]]

of in-use requirements, including: Extending the applicability of the 
CHC regulations to in-use crew and supply, barge, and dredge vessels 
that are equipped with Tier 0 and Tier 1 propulsion and auxiliary 
marine engines that operate within the Regulated California Waters; \5\ 
deleting certain exemptions of CHC engines registered in CARB's 
portable equipment registration regulation or permitted by local air 
pollution districts; defining swing engines and clarifying certain in-
use engine requirements; adding replacement engine exemptions; 
expanding compliance extension options; and, allowing continued use of 
existing engines in certain circumstances. CARB's CHC amendments that 
are applicable to both new and in-use engines allow the use of EPA or 
CARB certified off-road (also known as nonroad) \6\ compression-
ignition (CI) engines to comply with the new and in-use requirements 
for propulsion and/or auxiliary engines, and set forth a deadline for 
owners and operators to submit ``alternative control of emission 
plans.'' \7\ CARB seeks a full authorization for those amendments that 
establish emission standards, other requirements relating to the 
control of emissions, and accompanying enforcement provisions 
applicable to in-use diesel engines that are used on crew and supply, 
barge, and dredge vessels. CARB also seeks EPA's confirmation that the 
remaining CHC amendments (including those that clarify existing 
regulations or expand compliance flexibilities) fall within the scope 
of EPA's December 2011 authorization, pursuant to section 209(e) of the 
CAA.\8\
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    \2\ CARB, ``Resolution 10-26,'' June 24, 2010.
    \3\ The corresponding low-sulfur fuel requirements for 
commercial harbor craft are at title 13, CCR section 2299.5.
    \4\ California Air Resources Board (``CARB''), ``Request for 
Authorization,'' May 28, 2014.
    \5\ Regulated California Waters include all California inland 
waters, all California estuarine waters, and all waters within a 
zone 24 nautical miles seaward of the California coastline, except 
for specified areas along the Southern California coastline. Title 
17 CCR 93118.5(d)(68).
    \6\ The federal term ``nonroad'' and the California term ``off-
road'' are used interchangeably.
    \7\ CARB's CHC amendments now allow diesel engines in CHC 
vessels to be fueled with EPA on-road or off-road diesel fuel if a 
CHC is traveling from a port located outside of California which 
does not have CARB diesel fuel or specified alternative diesel 
fuels, and provided the CHC owner or operator retains records 
documenting the fuel purchase, location and name of the port located 
outside of California. CARB notes that both the original regulation 
(that required all CHC vessels only be fueled with CARB diesel fuel 
or specified alternative fuels) and the amended regulation are in-
use operational controls of nonroad engines and are not preempted by 
section 209(e) of the Act.
    \8\ See CARB's authorization support document (Docket EPA-HQ-
OAR-2014-0534-0003) at p. 8.
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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 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].\9\ 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), that EPA must 
consider before granting any California authorization request for new 
nonroad engine or vehicle emission standards.\10\ EPA revised these 
regulations in 1997.\11\ 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).\12\
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    \9\ 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 
CAA 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).
    \10\ 59 FR 36969 (July 20, 1994).
    \11\ 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 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.
    \12\ 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.\13\
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    \13\ 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

[[Page 69845]]

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.\14\ 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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    \14\ 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 pertaining to CARB's amendments. 
Specifically, we request comment on whether California's CHC 
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 noted within CARB's 
request are not within the scope of the previous authorization, EPA 
also requests comment on whether the CARB CHC 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.
    EPA also requests comment on whether the CHC amendments, for which 
CARB seeks a full authorization, meet the criteria of section 209(e) 
for a full authorization.

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 a hearing is 
conducted), 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-2014-0534.
    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: November 12, 2014.
Christopher Grundler,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2014-27807 Filed 11-21-14; 8:45 am]
BILLING CODE 6560-50-P