[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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