Control of Air Pollution: Emission Standards for New Nonroad
Compression-Ignition Engines at or Above 37 Kilowatts; Preemption of
State Regulation for Nonroad Engine and Vehicle Standards; Amendments
to Rules
[Rules and Regulations]
[Page 67733-67736]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de97-18]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 85 and 89
[AMS-FRL-5939-5]
Control of Air Pollution: Emission Standards for New Nonroad
Compression-Ignition Engines at or Above 37 Kilowatts; Preemption of
State Regulation for Nonroad Engine and Vehicle Standards; Amendments
to Rules
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: This direct final rulemaking, consistent with an order and
opinion from the U.S. Court of Appeals for the District of Columbia
Circuit, amends EPA's regulations setting emission standards for large
(at or above 37 kilowatts) nonroad compression ignition engines, and
EPA's regulations establishing procedures for EPA authorization of
California nonroad emission standards. Specifically, EPA is withdrawing
portions of an interpretive rule which set forth the Agency's position
on the Clean Air Act (Act) regarding the status of certain internal
combustion engines manufactured before the effective date of the final
rulemaking promulgating EPA's definition of nonroad engine.
Additionally, consistent with the D.C. Circuit opinion, EPA also is
amending the remaining text of this interpretive rule, as well as EPA's
regulations issued under section 209(e) of the Act regarding the
Agency's California nonroad standards authorization process, to clarify
that California must seek authorization from EPA prior to enforcing
standards and other requirements relating to emissions from any nonroad
vehicles or engines, and not just new nonroad vehicles and engines,
which was the original language used in these regulations.
DATES: This direct final rule is effective on March 2, 1998 unless
notice is received by January 29, 1998 that any person wishes to submit
adverse comments and/or request a hearing. Should EPA receive such
notice, EPA will publish a timely document in the Federal Register
withdrawing this direct final rule. Any party who sends EPA notice of
intent to submit adverse comments must in turn submit the adverse
comments by March 2, 1998, unless a hearing is requested. Any party
objecting to this direct final rule, at the time it notifies EPA of its
intent to submit adverse comments, can request EPA to hold a public
hearing on this action. If a hearing is requested, it will take place
on March 2, 1998, and interested parties will have an additional 30
days after the hearing (until March 30, 1998) to submit comments on any
information presented at the hearing. Because no hearing will occur
absent a request for one, interested parties should contact Robert M.
Doyle at the number listed below after January 29, 1998 to determine
whether a hearing will take place.
ADDRESSES: Written comments should be submitted (in duplicate if
possible) to: Air Docket Section (6102), Attention: Docket No. A-91-24,
U.S. Environmental Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460, or hand-delivered to the Air Docket at the above address,
in Room M-1500, Waterside Mall. A copy of written comments should also
be submitted to Robert M. Doyle at the address below.
FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney/Advisor,
Engine Programs and Compliance Division (6403J), U.S. Environmental
Protection Agency, 401 M. Street, S.W., Washington, D.C. 20560, (202)
564-9258, FAX (202) 233-9596, E-Mail, Doyle.Robert@EPAMAIL.EPA.GOV.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities potentially regulated by this direct final rule are the
California Air Resources Board and other state air quality agencies.
Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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State and local government................ California Air Resources
Board.
State and local air quality
agencies.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. If you have questions
regarding the applicability of this action to a particular product,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
II. Obtaining Electronic Copies of Documents
Electronic copies of the preamble and the regulatory text of this
direct final rule are available via the Internet on the Office of
Mobile Sources (OMS) Home Page (http://www.epa.gov/OMSWWW/). Users can
find these documents and other nonroad engine and vehicle related
information and documents by accessing the OMS Home Page and looking at
the path entitled ``Nonroad engines and vehicles.'' This service is
free of charge, except for any cost you already incur for Internet
connectivity. The official Federal Register version is made available
on the day of publication on the primary Web site (http://www.epa.gov/
docs/fedrgstr/EPA-AIR/).
Please note that due to differences between the software used to
develop the documents and the software into which the documents may be
downloaded, changes in format, page length, etc., may occur.
III. Legal Authority and Background
Authority for the actions set forth in this direct final rule is
granted to EPA by sections 209, 213, and 301 of the Clean Air Act as
amended (42 U.S.C. 7543, 7547, and 7601).
A. Amendments and Redesignation of Appendix Containing Interpretive
Rule on Date and Scope of Nonroad Preemption
On May 17, 1993, EPA proposed rules setting standards for emissions
from nonroad compression ignition engines at or above 37 kilowatts
(approximately 50 horsepower) in power (large nonroad engine
rule).<SUP>1</SUP> In this NPRM, EPA was faced with the question (among
many issues) of the manner and the extent to which states could
regulate nonroad engines, which some states and localities previously
had regulated as stationary sources. EPA noted that while emissions
from nonroad engines are excluded from the Act's section 302(z)
definition of stationary source,<SUP>2</SUP> the exclusion would apply
only to those nonroad internal combustion engines that are manufactured
after the effective
[[Page 67734]]
date of the large nonroad engine rule. EPA also noted that nonroad
engines may be subject to state-imposed in-use restrictions such as
limits on hours of use and may be subject to state regulation under
section 209(e)(2).<SUP>3</SUP>
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\1\ 58 FR 28809 (May 17, 1993).
\2\ Section 302(z) states that the ``term `stationary source'
means generally any source of an air pollutant except those
emissions resulting directly from an internal combustion engine for
transportation purposes or from a nonroad engine or nonroad vehicle
as defined in section 216.''
\3\ Section 209(e)(2)(A) directs EPA to authorize California to
adopt and enforce standards and other requirements for nonroad
engines and nonroad vehicles (with some categorical exceptions) if
California's regulations meet the criteria set forth in the Act.
Other states may adopt EPA-authorized California nonroad engine or
vehicle standards if the states comply with the criteria listed in
section 209(e)(2)(B).
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During the rulemaking, EPA received comments from several parties
objecting to its interpretation of the correct effective date. These
parties generally asserted that the language in section 302(z) applied
to all nonroad engines in existence on or after November 15, 1990, the
date of the enactment of the Clean Air Act Amendments of 1990 (CAAA).
The effect of this assertion would be that states would be preempted
from promulgating emission standards or other requirements for nonroad
engines produced after that date.
On June 17, 1994, EPA published a final rule <SUP>4</SUP> setting
the standards for the large nonroad compression ignition engines; the
effective date for this rule was July 18, 1994, 30 days after its
Federal Register publication. In that rule, EPA finalized the
definition of ``nonroad engine,'' which determined whether certain
engines should be considered ``nonroad engines'' or ``stationary
sources.'' After careful consideration of the comments on the rule's
preemption date briefly summarized above, EPA added an interpretive
rule in the form of an appendix (Appendix A) to the regulations
summarizing EPA's decisions on these preemption issues. In Appendix A,
EPA noted basically that it interprets the Act as not precluding state
regulation of internal combustion engines manufactured prior to July
18, 1994, except that state regulation of such engines that are used in
motor vehicles or vehicles used solely for competition is precluded.
Additionally, EPA noted that it believes that states are not precluded
under section 209 of the Act from regulating the use and operation of
nonroad engines. Appendix A has been codified as part of the large
nonroad engine rule and appears in the current volume of 40 CFR part 89
(July 1, 1996).
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\4\ 59 FR 31306 (June 17, 1994).
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On or before August 16, 1994, nine parties timely filed petitions
with the United States Court of Appeals for the D.C. Circuit for review
of the large nonroad engine rule, and of the related rule establishing
the scope of preemption of state or local standards regulating nonroad
engines and the procedures that California must follow when seeking EPA
authorization to adopt and enforce California-specific nonroad engine
standards under section 209(e) of the Act. These nine petitions were
consolidated as Engine Manufacturers Association, et. al., v. EPA,
Docket No. 94-1558, (EMA v. EPA). The petitioners challenged several
aspects of these rules, including the EPA interpretation contained in
Appendix A. After preliminary discussions with petitioners, EPA decided
that it was appropriate to review its interpretation that preemption of
state and local regulations did not effect engines manufactured prior
to July 18, 1994. Therefore, on September 19, 1995, EPA filed with the
Court a Motion for Vacatur and Remand of its interpretation. The
consolidated petitioners did not oppose EPA's Motion.
On October 20, 1995, the Court granted EPA's Motion and ordered
that paragraphs 1 and 2 of Appendix A be vacated and remanded to the
Agency for further consideration. Today's direct final rule implements
the order of the Court by removing paragraphs 1 and 2 from Appendix A,
and retitling Appendix A to be descriptive of its revised content.
EPA notes that although paragraphs 1 and 2 of Appendix A are now
vacated, paragraph 3 remains effective, though this rule revises that
paragraph. This paragraph, which appears in the revised text of
Appendix A, contains EPA's determination that states are not precluded
from regulating the use of nonroad engines. On July 12, 1996, the Court
handed down its decision in EMA v. EPA, and held that EPA had made a
reasonable interpretation of the Act in finding that the preemption of
state regulations did not extend to restrictions on the use of nonroad
engines.<SUP>5</SUP> EPA, however, has deleted the last two sentences
of paragraph 3 and added a new sentence consistent with the Court's
ruling on the scope of implied preemption of state standards, discussed
in detail in Section B. below.
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\5\ EMA v. EPA, 88 F.3d 1075, 1093-94 (D.C. Cir. 1996).
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B. Scope of Implied Preemption of State Standards
Under section 209(e) of the Act as amended, EPA was required to
``issue regulations to implement'' subsection (e), which addressed the
ability of states to adopt emission standards and other requirements
for nonroad engines and vehicles. Under section 209(e): (1) All states
are preempted from adopting emission standards and other requirements
for new nonroad engines used in construction or farm equipment or
vehicles which are smaller than 175 horsepower and for new locomotives
and new engines used in locomotives; (2) California may adopt and
enforce standards and other requirements for nonroad engines other than
the specifically preempted categories listed directly above, after
receiving authorization to do so from EPA; and (3) other states may
adopt California's nonroad emission standards and other requirements
after EPA has authorized the standards and other requirements and the
adopting state has allowed the statutorily required two-year leadtime.
On July 20, 1994, EPA promulgated regulations which established the
process under which the Agency would authorize California nonroad
emission standards and other requirements (section 209(e) regulations).
During the rulemaking, EPA addressed the issue of the scope of the
Act's preemption on state regulation of nonroad engines and vehicles.
Section 209(e)(2) directs EPA to authorize, when all conditions are
met, California emission standards for ``any nonroad vehicles or
engines other than [the new under 175 hp farm and construction
equipment engines and the new locomotive engines] * * * (emphasis
added).'' EPA interpreted the implied preemption of state standards in
section 209(e) to apply only to new nonroad engines rather than any
nonroad engines, which could include both new and used engines. In the
Preamble to these regulations, EPA stated clearly that it believed
``that the requirements of section 209(e)(2) apply only to new nonroad
engines and vehicles (emphasis added).'' <SUP>6</SUP> Accordingly, the
regulations required California to seek EPA authorization only for
``standards and other requirements relating to the control of emissions
from new nonroad vehicles or engines that are otherwise not
preempted.'' <SUP>7</SUP>
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\6\ 59 FR 36969, 36973 (July 20, 1994).
\7\ 40 CFR 86.1604(a) (July 1, 1996).
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As discussed above, petitions to the D.C. Circuit for review of the
section 209(e) regulations and the large nonroad engine rule were filed
and consolidated as EMA v. EPA. In this litigation, the petitioners
agreed with EPA that section 209(e)(2) implied preemption of state
regulation of nonroad engines and vehicles, but argued that the
preemption applied to standards for all nonroad
[[Page 67735]]
sources, both new and non-new, because the statute did not include the
word ``new'' in specifying what nonroad vehicles and engines for which
California and other states could promulgate standards,<SUP>8</SUP> and
for other reasons. In its opinion in this case handed down July 12,
1996, the Court agreed with the petitioners on this particular point,
and granted the EMA petition ``insofar as they challenge the limitation
of the implied section 209(e)(2) preemption to new nonroad sources.''
<SUP>9</SUP>
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\8\Section 209(e)(2)(A) states ``(I)n the case of any nonroad
vehicles or engines other than those referred to in subparagraph (A)
or (B) of paragraph (1), * * *''
\9\EMA v. EPA, 88 F.3d at 1094.
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Today's direct final rule implements the opinion of the Court
regarding the scope of preemption of section 209(e)(2) by amending the
language of the implementing regulations to reflect that California
must request authorization for its emission standards and other related
requirements for all nonroad vehicles and engines.<SUP>10</SUP> EPA has
also deleted the final two sentences of Appendix A, dealing with the
ability of states to require retrofit technologies, as the language as
currently written is inconsistent with the opinion of the Court, and
added a sentence which reflects the Court's holding by noting that
states may adopt only those retrofit requirements for nonroad engines
identical to California requirements which have been authorized by EPA
under section 209 of the Act. EPA has also modified the language of
Appendix A to state more simply and clearly that state regulation of
the use and operation of nonroad engines can occur when the engines are
no longer new.
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\10\ EPA has also amended the text of the implementing
regulations in appropriate places by changing ``states'' to ``states
and any political subdivision thereof'' to make this language fully
consistent with the applicable language of section 209(e) of the
Act. Additionally, EPA has revised the Title of Part 85 to reflect
that this Part contains regulations covering both onroad vehicles
and engines and nonroad vehicles and engines. These amendments were
not directed by the Court, but are being done as part of today's
direct final rule for editorial efficiency.
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C. Public Participation and Effective Date
EPA is publishing this rule without prior proposal because EPA
views these amendments as noncontroversial and anticipates no adverse
comments. However, in the event that adverse or critical comments are
filed, EPA has prepared a Notice of Proposed Rulemaking (NPRM)
proposing the same amendments. This NPRM is contained in a separate
document in this Federal Register publication. The direct final action
will be effective March 2, 1998 unless adverse or critical comments are
received by January 29, 1998. If EPA receives adverse or critical
comments on the revisions discussed in this section, the revisions
receiving adverse comment will be withdrawn before the effective date.
In case of the withdrawal of all or part of this action, the withdrawal
will be announced by a subsequent Federal Register document. All public
comments will then be addressed in a subsequent final rule based on the
accompanying proposed rule. EPA will not implement a second comment
period on this action. Any parties interested in commenting on this
rule should do so at this time. If no adverse comments are received,
the public is advised that the rule will be effective March 2, 1998.
EPA is continuing to review its policy concerns and options
regarding the date of preemption for the nonroad engine rules. EPA may
in the future determine that it is appropriate to issue a new
interpretation to address this issue.
IV. Administrative Requirements
A. Administrative Designation
Under Executive Order 12866 (58 FR 51735 (October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or,
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Reporting and Recordkeeping Requirements
This rule does not change the information collection requirements
submitted to and approved by OMB in association with the large nonroad
engine final rulemaking (59 FR 31306, June 17, 1994).
C. Regulatory Flexibility
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. This rule will
not have a significant adverse economic impact on a substantial number
of small businesses. The only revisions EPA is making in this final
rule are pursuant to the decision of the Court. These changes are
directed at state and local governments and are expected to affect few,
if any, existing or future local or state regulations.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Unfunded Mandates Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this rule does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector.
List of Subjects
40 CFR Part 85
Environmental protection, Administrative practice and procedure,
Air pollution control, Federal preemption, Motor vehicle pollution,
Nonroad engine and vehicle pollution,
[[Page 67736]]
Reporting and recordkeeping requirements, State controls.
40 CFR Part 89
Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Imports,
Incorporation by reference, Labeling, Nonroad source pollution,
Reporting and recordkeeping requirements.
Dated: December 17, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, parts 85 and 89 of title
40 of the Code of Federal Regulations are amended as follows:
PART 85--CONTROL OF AIR POLLUTION FROM MOBILE SOURCES
1. The heading for part 85 is revised to read as set forth above.
Subpart Q--Preemption of State Standards and Waiver Procedures for
Nonroad Engines and Nonroad Vehicles
2. The authority citation for part 85 is revised to read as
follows:
Authority: 42 U.S.C. 7521, 7522, 7524, 7525, 7541, 7542, 7543,
7547, and 7601(a).
3. Section 85.1603 is amended by revising paragraphs (b), (c) and
(d) to read as follows:
Sec. 85.1603 Application of definitions; scope of preemption.
* * * * *
(b) States and any political subdivisions thereof are preempted
from adopting or enforcing standards or other requirements from new
engines smaller than 175 horsepower, that are primarily used in farm or
construction equipment or vehicles, as defined in this subpart.
(c) States and any political subdivisions thereof are preempted
from adopting or enforcing standards or other requirements relating to
the control of emissions from new locomotives or new engines used in
locomotives.
(d) No state or any political subdivisions thereof shall enforce
any standards or other requirements relating to the control of
emissions from nonroad engines or vehicles except as provided for in
this subpart.
4. Section 85.1604 is amended by revising paragraph (a) to read as
follows:
Sec. 85.1604 Procedures for California nonroad authorization requests.
(a) California shall request authorization to enforce its adopted
standards and other requirements relating to the control of emissions
from nonroad vehicles or engines that are otherwise not preempted by
Sec. 85.1603(b) or Sec. 85.1603(c) from the Administrator of EPA and
provide the record on which the state rulemaking was based.
* * * * *
5. Section 85.1606 is amended by revising the introductory text to
read as follows:
Sec. 85.1606 Adoption of California standards by other states.
Any state other than California which has plan provisions approved
under Part D of Title I of the Clean Air Act may adopt and enforce
emission standards for any period, for nonroad vehicles and engines
subject to the following requirements:
* * * * *
PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD ENGINES
1. The authority citation for part 89 continues to read as follows:
Authority: Sections 202, 203, 204, 205, 206, 207, 208, 209, 213,
215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C.
7521, 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550,
and 7601(a)).
2. Appendix A to Subpart A is revised including the appendix
heading to read as follows:
Appendix A to Subpart A--State Regulation of Nonroad Internal
Combustion Engines
This appendix sets forth the Environmental Protection Agency's
(EPA's) interpretation of the Clean Air Act regarding the authority
of states to regulate the use and operation of nonroad engines.
EPA believes that states are not precluded under section 209
from regulating the use and operation of nonroad engines, such as
regulations on hours of usage, daily mass emission limits, or sulfur
limits on fuel; nor are permits regulating such operations
precluded, once the engine is no longer new. EPA believes that
states are precluded from requiring retrofitting of used nonroad
engines except that states are permitted to adopt and enforce any
such retrofitting requirements identical to California requirements
which have been authorized by EPA under section 209 of the Clean Air
Act.
[FR Doc. 97-33769 Filed 12-29-97; 8:45 am]
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