[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Notices]
[Pages 16439-16442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05439]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-10787-01-OAR]
California State Nonroad Engine Pollution Control Standards;
Ocean-Going Vessels At-Berth and Commercial Harbor Craft; Requests 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 EPA
that it has adopted amendments to its Ocean-Going Vessels At-Berth
regulation (2020 At-Berth Amendments). By letter dated September 27,
2022, CARB asked that EPA authorize these amendments pursuant to
section 209(e) of the Clean Air Act (CAA). CARB has also notified EPA
that it has adopted amendments to its Commercial Harbor Craft
regulation (2022 CHC Amendments). By letter dated January 31, 2023,
CARB asked that EPA authorize these amendments pursuant to section
209(e) of the CAA. This notice announces that EPA may hold a public
hearing to consider California's authorization requests for both the
2020 At-Berth Amendments and the 2022 CHC Amendments, and that EPA is
now accepting written comment on the requests.
DATES: Comments: Written comments must be received on or before May 1,
2023. Public Hearing: The EPA may schedule a virtual public hearing and
by separate Federal Register notice will announce whether such hearing
will take place. EPA will hold a hearing only if any party notifies EPA
by March 27, 2023 expressing an interest in presenting oral testimony.
If EPA schedules a virtual public hearing, then EPA will extend the
written comment period as appropriate and include the new date in the
subsequent Federal Register notice. See SUPPLEMENTARY
[[Page 16440]]
INFORMATION for further information on the tentative virtual public
hearing.
ADDRESSES: You may submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2023-0152 (for the 2020 At-Berth Amendments) and by Docket
ID No. EPA-HQ-OAR-2023-0153 (for the 2022 CHC Amendments), by any of
the following methods:
Federal eRulemaking Portal: https://www.regulations.gov
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected].
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, OAR, Docket EPA-HQ-OAR-2023- 0152 (2020 At-Berth Amendments) or
Docket EPA-HQ-OAR-2023-0153 (2022 CHC Amendments), Mail Code 28221T,
1200 Pennsylvania Avenue NW, Washington, DC 20460.
Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except federal
holidays). Instructions: All submissions received must include the
Docket ID No. for one or both of these actions. Comments received may
be posted without change to https://www.regulations.gov, including any
personal information provided. For detailed instructions on sending
comments and additional information on the process for this action, see
the ``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Public Hearing. EPA may hold a virtual public hearing for this
action only if any party notifies EPA by March 27, 2023 to express
interest in presenting the Agency with oral testimony. Please refer to
Participation in Virtual Public Hearing in the SUPPLEMENTARY
INFORMATION section of this document for additional information.
FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of
Transportation and Air Quality, Transportation and Climate Division
(TCD), Environmental Protection Agency; Telephone number: (202) 343-
9256; Email address: [email protected]; or Kayla Steinberg,
Office of Transportation and Air Quality, Transportation and Climate
Division (TCD), Environmental Protection Agency; Telephone number (202)
564-7658; Email address: [email protected].
SUPPLEMENTARY INFORMATION:
A. Public Participation Tentative Virtual Public Hearing: The EPA
may hold a virtual hearing if any party notifies the Agency that it
wishes to present oral testimony (an opportunity to submit written
comment exists regardless of whether a hearing is held, and such
comment is not limited to a 5 minute time slot). In order to request a
virtual public hearing, a party should contact a name listed in the FOR
FURTHER INFORMATION CONTACT section above by March 27, 2023. If EPA
receives a request for a hearing, then the Agency will issue an
additional Federal Register Notice with details of date and time, and
how to register for the hearing in advance. In the event of a public
hearing, EPA anticipates that each commenter will have no more than 5
minutes to provide oral testimony. In addition, the EPA recommends
submitting the text of your oral testimony as written comments to the
dockets as applicable. Written statements and supporting information
submitted during the comment period will be considered with the same
weight as oral testimony and supporting information presented at the
public hearing.
B. Public Participation Written Comments: Submit your comments,
identified by Docket ID No. EPA-HQ-OAR-2023-0152 (2020 At-Berth
Amendments), or Docket ID No. EPA-HQ-OAR-2023-0153 (2022 CHC
Amendments) at https://www.regulations.gov (our preferred method), or
the other methods identified in the ADDRESSES section of this document.
Once submitted, comments cannot be edited or withdrawn from the docket.
The EPA may publish any comment received to its public docket. Do not
submit electronically any information you consider to be Confidential
Business Information (CBI), Proprietary Business Information (PBI), or
other information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (including such content located on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI,
PBI, or multimedia submissions, and general guidance on making
effective comments, please visit https://www.epa.gov/dockets/commenting-epadockets. Documents to which the EPA refers in this action
are available online at https://www.regulations.gov/ in the docket for
this action (Docket EPA-HQ- OAR-2023-0152; EPA-HQ-OAR-2023-0153).
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. This page will
also include updates regarding this authorization proceeding. The page
can be accessed at https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations.
I. California's Ocean-Going Vessels At-Berth Regulation, Prior
Authorization, and New Request
CARB first adopted the initial At-Berth Regulation, the Airborne
Toxic Control Measure for Auxiliary Diesel Engines Operated on Ocean-
Going Vessels At-Berth in a California Port (2007 At-Berth Regulation),
on October 16, 2008, and EPA granted California an authorization for
that regulation in 2011.\1\ The 2007 At-Berth Regulation applied only
to container, refrigerated cargo, and cruise vessels visiting six
California ports. The 2007 At-Berth Regulation required affected
vessels to reduce emissions at berth by either plugging into shore
power or using an equally effective compliance strategy (such as a
capture and control system). Specifically, the 2007 At-Berth Regulation
required fleets of container and refrigerated cargo vessels making 25
or more visits or cruise vessels making 5 or more visits to any of the
six regulated ports to limit the operations and/or emissions of
auxiliary engines while docked, reducing nitrogen oxide
(NOX) and diesel particulate matter (PM) emissions at berth.
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\1\ 76 FR 77515 (Dec. 13, 2011).
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On September 27, 2022, CARB submitted a new authorization request
to EPA for its amendments to the 2007 At-Berth Regulation the CARB
Board adopted on August 27, 2020 (2020 At-Berth Amendments).\2\ The
2020 At-Berth Amendments are designed to build upon the 2007 At-Berth
Regulation by extending auxiliary engine emissions reductions
requirements to additional categories of OGVs (roll on--roll off (ro-
ro) and tanker vessels), adding emissions reductions requirements for
tanker
[[Page 16441]]
vessel auxiliary boilers, and expanding the applicability of the
regulation to new ports and terminals.
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\2\ CARB At-Berth Authorization Request, EPA-HQ-OAR-2023-0152.
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The 2020 At-Berth Amendments establish, among other provisions, in-
use emissions-related requirements that apply beginning January 1,
2023, with limited exceptions, to any person who owns, operates,
charters, or leases any United States or foreign-flag OGV that visits a
California port, terminal, or berth; any person who owns, operates, or
leases a port, terminal, or berth located where OGVs visit; or any
person who owns, operates, or leases a CARB approved emissions control
strategy (CAECS) for OGV auxiliary engines or tanker auxiliary boilers.
II. California's Commercial Harbor Craft Regulation, Prior
Authorizations, and New Request
CARB 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 13, 2011, EPA granted California an authorization for the
original CHC regulation.\3\
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\3\ 76 FR 77521 (December 13, 2011).
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CARB subsequently adopted the CHC amendments on June 24, 2010 (2010
CHC Amendments). The 2010 CHC Amendments set forth a variety 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; 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 2010 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) \4\ 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.'' On
January 19, 2017, EPA granted California an authorization for the
original CHC regulation.\5\
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\4\ The federal term ``nonroad'' and the California term ``off-
road'' are used interchangeably.
\5\ 82 FR 77521 (January 19, 2017).
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On January 31, 2023, CARB submitted its authorization request to
EPA for further amendments to the CHC regulation that the CARB Board
adopted on March 24, 2022 (2022 CHC Amendments).\6\
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\6\ CARB CHC Authorization Request, EPA-HQ-OAR-2023-0153.
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The 2022 CHC Amendments requirements include, among other
provisions, that new harbor craft vessels may not be sold, offered for
sale, leased, rented, or acquired unless each propulsion and auxiliary
engine on the vessel meets performance standards that are equivalent in
stringency to: (1) the most stringent federal marine engine standard
(federal Tier 3 or Tier 4 marine standards) or California or federal
off-road engine standards (California or federal Final Tier 4 off-road
engine standards) that were in effect at the time any of the
aforementioned actions occur and that are applicable to new engines
with the same power ratings and displacements as the subject propulsion
and auxiliary engines, and that (2) reflect the addition of a level 3
Verified Diesel Emission Control Strategy (VDECS), such as a verified
diesel particulate filter (DPF). Newly acquired in-use harbor craft may
not be sold, offered for sale, leased, rented, purchased or acquired,
unless each propulsion and auxiliary engine on the vessel meets the
performance standards applicable to new harbor craft as discussed
above.
The 2022 CHC Amendments also include additional requirements for
new, newly-acquired, and in-use short-run ferries and excursion
vessels. The pre-existing CHC regulation required new ferry vessels
capable of transporting 75 or more passengers to be equipped with
propulsion engines certified to Tier 4 marine engine standards, or with
propulsion engines certified to Tier 2 or Tier 3 marine engine
standards and to also be equipped with the best available control
technology (BACT) to reduce emissions of NOX or diesel PM to
the greatest extent feasible. The 2022 CHC Amendments establish more
stringent requirements as of December 31, 2022.
III. 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].\7\ 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)(A) of the (CAA),
that EPA must consider before granting any California authorization
request for new nonroad engine or vehicle emission standards.\8\ EPA
revised these regulations in 1997.\9\ 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).\10\
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\7\ 42 U.S.C. 7543(e)(2)(A).
\8\ 59 FR 36969 (July 20, 1994).
\9\ 62 FR 67733 (December 30, 1997). The applicable regulations,
now in 40 CFR part 1074, subpart B.
\10\ 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
[[Page 16442]]
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.\11\
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\11\ Id. See also 78 FR 58090, 58092 (September 20, 2013).
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IV. EPA's Request for Comments
As stated above, EPA is tentatively offering the opportunity for a
virtual public hearing and is requesting written comment. Specifically,
we request comment on whether California's 2020 At-Berth Amendments and
the 2022 CHC Amendments meet the criteria for a full authorization.\12\
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.
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\12\ EPA will separately and independently evaluate the 2020 At-
Berth Amendments and the 2022 CHC Amendments and will issue separate
final decisions for each.
Sarah Dunham,
Director, Office of Transportation and Air Quality, Office of Air and
Radiation.
[FR Doc. 2023-05439 Filed 3-16-23; 8:45 am]
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