California State Nonroad Engine and Vehicle Pollution Control Standards;
Authorization of Nonroad Durability Standards, Notice of Decision
[Federal Register: November 21, 2003 (Volume 68, Number 225)]
[Notices]
[Page 65702-65704]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no03-65]
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ENVIRONMENTAL PROTECTION AGENCY
[AMS-FRL-7590-1]
California State Nonroad Engine and Vehicle Pollution Control Standards;
Authorization of Nonroad Durability Standards, Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA today, pursuant to section 209(e) of the Clean Air Act
(Act), 42 U.S.C. 7543(b), is authorizing California to enforce
amendments to its Small Off-Road Engine (SORE) regulations which set
new durability standards for covered engines. The California Air
Resources Board (CARB), by letter dated October 4, 1999, requested that
EPA confirm CARB's finding that these new durability standards and
other amendments to the SORE Regulations are within-the-scope of a
prior authorization under section 209(e) of the Act, granted by EPA to
CARB's original SORE Regulations in July 1995. EPA determined that most
of the amendments were within the scope of the prior authorization, but
because the durability requirements amendments are brand new standards,
EPA offered the opportunity for a public hearing, and requested
comments, on these new standards. After completing review of these
amendments, EPA is authorizing California to enforce the durability
standards.
ADDRESSES: The Agency's Decision Document, containing an explanation of
the Assistant Administrator's decision, as well as all documents relied
upon in making that decision, including those submitted to EPA by CARB,
are available for public inspection in EPA Air Docket A-2000-09 at the
following address: EPA Docket Center (EPA/DC), Public Reading Room,
Room B102, EPA West Building, 1301 Constitution Avenue, NW.,
Washington, DC. The EPA Docket Center Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, except on government
holidays. The Air Docket telephone number is (202) 566-1742, and the
facsimile number is (202) 566-1741. You may be charged a reasonable fee
for photocopying docket materials, as provided in 40 CFR part 2.
FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor,
Certification and Compliance Division, (6403J), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
(U.S. mail), 1301 L Street NW., Washington, DC 20005 (courier mail).
Telephone: (202) 343-9258, Fax: (202) 343-2057, E-Mail:
Doyle.Robert@EPA.GOV.
SUPPLEMENTARY INFORMATION:
I. Obtaining Electronic Copies of Documents
EPA makes available an electronic copy of this Notice and the
Agency's Decision Document on the Office of Transportation and Air
Quality (OTAQ) homepage (http://www.epa.gov/OTAQ). Users can find these
documents by accessing the OTAQ homepage and looking at the path
entitled ``Recent Additions.'' This service is free of charge, except
any cost you already incur for Internet connectivity. Users can also
get the official Federal Register version of the Notice on the day of
publication on the primary Web site:
(http://www.epa.gov/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.
II. Background
A. Nonroad Authorizations
Section 209(e)(1) of the Act addresses the permanent preemption of
any State, or political subdivision thereof, from adopting or
attempting to enforce any standard or other requirement relating to the
control of emissions for certain new nonroad engines or vehicles.\1\
[[Page 65703]]
Section 209(e)(2) of the Act allows the Administrator to grant
California authorization to enforce state standards for new nonroad
engines or vehicles which are not listed under section 209(e)(1),
subject to certain restrictions. On July 20, 1994, EPA promulgated a
regulation that sets forth, among other things, the criteria, as found
in section 209(e)(2), by which EPA must consider any California
authorization requests for new nonroad engines or vehicle emission
standards (section 209(e) rules).\2\
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\1\ Section 209(e)(1) of the Act provides:
No State or any political subdivision thereof shall adopt or
attempt to enforce any standard or other requirement relating to the
control of emissions from either of the following new nonroad
engines or nonroad vehicles subject to regulation under this Act--
(A) New engines which are used in construction equipment or
vehicles or used in farm equipment or vehicles and which are smaller
than 175 horsepower.
(B) New locomotives or new engines used in locomotives.
Subsection (b) shall not apply for purposes of this paragraph.
\2\ See 59 FR 36969 (July 20, 1994), and regulations set forth
therein, 40 CFR part 85, subpart Q, Sec. Sec. 85.1601-85.1606.
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Section 209(e)(2) requires the Administrator, after notice and
opportunity for public hearing, to authorize California to enforce
standards and other requirements relating to emissions control of new
engines not listed under section 209(e)(1).\3\ The section 209(e) rule
and its codified regulations \4\ formally set forth the criteria,
located in section 209(e)(2) of the Act, by which EPA must grant
California authorization to enforce its new nonroad emission standards:
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\3\ As discussed above, states are permanently preempted from
adopting or enforcing standards relating to the control of emissions
from new engines listed in section 209(e)(1).
\4\ See 40 CFR part 85, subpart Q, Sec. 85.1605.
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40 CFR part 85, subpart Q, Sec. 85.1605 provides:
(a) The Administrator shall grant the authorization if California
determines that its standards will be, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards.
(b) The authorization shall not be granted if the Administrator
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 section 209.
As stated in the preamble to the section 209(e) rule, EPA has
interpreted the requirement that EPA cannot find ``California standards
and accompanying enforcement procedures are not consistent with section
209'' to mean that California standards and accompanying enforcement
procedures must 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 motor vehicle waivers.\5\ 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. Secondly, California's nonroad standards and enforcement
procedures must be consistent with section 209(e)(1), which identifies
the categories permanently preempted from state regulation.\6\
California's nonroad standards and enforcement procedures would be
considered inconsistent with section 209 if they applied to the
categories of engines or vehicles identified and preempted from State
regulation in section 209(e)(1).
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\5\ See 59 FR 36969, 36983 (July 20, 1994).
\6\ Section 209(e)(1) of the Act has been implemented, See 40
CFR part 85, subpart Q, Sec. Sec. 85.1602, 85.1603.
Section 85.1603 provides in applicable part:
(a) For equipment that is used in applications in addition to
farming or construction activities, if the equipment is primarily
used as farm and/or construction equipment or vehicles, as defined
in this subpart, it is considered farm or construction equipment or
vehicles. (b) States are preempted from adopting or enforcing
standards or other requirements relating to the control of emissions
from new engines smaller than 175 horsepower, that are primarily
used in farm or construction equipment or vehicles, as defined in
this subpart.
Section 85.1602 provides definitions of terms used in Sec.
85.1603 and states in applicable part:
Construction equipment or vehicle means any internal combustion
engine-powered machine primarily used in construction and located on
commercial construction sites.
Farm Equipment or Vehicle means any internal combustion engine-
powered machine primarily used in the commercial production and/or
commercial harvesting of food, fiber, wood, or commercial organic
products or for the processing of such products for further use on
the farm.
Primarily used means used 51 percent or more.
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Finally, because California's nonroad standards and enforcement
procedures must be consistent with section 209(b)(1)(C), EPA will
review nonroad authorization requests under the same ``consistency''
criteria that are applied to motor vehicle waiver requests. Under
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. As previous decisions granting waivers of Federal
preemption for motor vehicles have explained, State standards are
inconsistent with section 202(a) if there is inadequate lead time to
permit the development of the necessary technology giving appropriate
consideration to the cost of compliance within that time period or if
the Federal and State test procedures impose inconsistent certification
requirements.\7\
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\7\ To be consistent, the California certification procedures
need not be identical to the Federal certification procedures.
California procedures would be inconsistent, however, if
manufacturers would be unable to meet both the state and the Federal
requirement with the same test vehicle in the course of the same
test. See, e.g., 43 FR 32182 (July 25, 1978).
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With regard to enforcement procedures accompanying standards, EPA
must grant the requested authorization unless it finds that these
procedures may cause the California standards, in the aggregate, to be
less protective of public health and welfare than the applicable
Federal standards promulgated pursuant to section 213(a), or unless the
Federal and California certification test procedures are
inconsistent.\8\
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\8\ See, e.g., Motor and Equipment Manufacturers Association,
Inc. v. EPA, 627 F.2d 1095, 1111-14 (D.C. Cir. 1979), cert. denied,
446 U.S. 952 (1980) (MEMA I); 43 FR 25729 (June 14, 1978).
While inconsistency with section 202(a) includes technological
feasibility, lead time, and cost, these aspects are typically
relevant only with regard to standards. The aspect of consistency
with 202(a) which is of primary applicability to enforcement
procedures (especially test procedures) is test procedure
consistency.
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Once California has received an authorization for its standards and
enforcement procedures for a certain group or class of nonroad
equipment engines or vehicles, it may adopt other conditions precedent
to the initial retail sale, titling or registration of these engines or
vehicles without the necessity of receiving an additional
authorization.\9\
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\9\ See 43 FR 36679, 36680 (August 18, 1978).
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If California acts to amend a previously authorized standard or
accompanying enforcement procedure, the amendment may be considered
within the scope of a previously granted authorization provided that it
does not undermine California's determination that its standards in the
aggregate are as protective of public health and welfare as applicable
Federal standards, does not affect the consistency with section 209 of
the Act, and raises no new issues affecting EPA's previous
authorization determination.\10\
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\10\ Decision Document for California Nonroad Engine Regulations
Amendments, Dockets A-2000-05 to 08, entry V-B, p. 28.
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B. The SORE Amendments Request
EPA granted California authorization for its SORE Rule by decision
of the Administrator dated July 5, 1995.\11\ The
[[Page 65704]]
SORE Rule, which applies to all gasoline, diesel, and other fueled
utility and lawn and garden equipment engines 25 horsepower and under,
with certain exceptions established two ``tiers'' of exhaust emission
standards for these engines (Tier 1 from 1995 through 1998 model years,
and Tier 2 for model year 1999 and beyond), as well as numerous other
requirements. By letter dated October 4, 1999, CARB notified EPA that
it had adopted numerous amendments to its SORE Regulations which were
first approved at a public hearing on March 26, 1998. These amendments
are the product of CARB's continuing reviews of industry efforts to
comply with the requirements of the CARB nonroad program. The Board
directed the CARB staff to review the industry progress in developing
the technology required to comply with the Tier 2 standards, and to
consider issues raised by the industry in this process. The staff
recommended to the Board that the SORE regulations ``be modified to
reflect the realities of the small engine market and the technological
capabilities of the industry.'' \12\ These recommended amendments which
CARB adopted consequently reduce compliance burdens on manufacturers
while also ``preserving most of the emission reductions--including most
reductions in excess of comparable federal program--that U.S.E.P.A.
previously authorized.'' \13\
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\11\ 60 FR 37440 (July 20, 1995). The CARB small engine emission
regulations were then called the Utility, Lawn and Garden Engine
(ULGE) regulations. The new amendments, among other things, renamed
the ULGE regulations as the SORE regulations.
\12\ CARB Notice of Public Hearing with attached Staff Report,
Docket A-2000-09, entry II-B-2, p. 2.
\13\ Letter from CARB to EPA requesting within the scope
confirmation for amendments to SORE Rule, dated October 4, 1999,
Docket A-2000-09, entry II-B-1, p.3.
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In its request letter, CARB asked EPA to confirm the CARB
determination that the amendments to the SORE regulations set forth in
its request package are within the scope of the 209(e) authorization of
the original authorization granted by EPA for the SORE Rule in July
1995. EPA has made such a determination for most of the regulation
amendments included in the CARB request.\14\ EPA also determined, on
the other hand, that one set of regulation amendments in this request
cannot be considered within the scope of the previous authorization
because these particular amendments set brand new, more stringent
standards and therefore properly should be reviewed as a new
authorization request. These amendments set useful life standards for
covered engines (where before there were none). Accordingly, EPA
offered the opportunity for a public hearing, and requested public
comments, on these new standards, as the Act requires us to do, by
publication of a Federal Register notice to such effect on November 20,
2000.\15\ There was no request for a public hearing, nor were any
comments received on the CARB standards at issue. Therefore, EPA has
made this determination based on the information submitted by CARB in
its request.
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\14\ Decision Document for California Nonroad Engine Regulations
Amendments, Dockets A-2000-05 to 08, entry V-B.
\15\ 65 FR 69763 (November 20, 2000).
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C. Authorization Decision
EPA has decided to authorize California to enforce amendments to
its SORE regulations that set durability standards for engines covered
by the Rule. In its request letter, CARB stated that the various
amendments will not cause the California nonroad standards, in the
aggregate, to be less protective of public health and welfare than the
applicable Federal standards. CARB also stated that California's need
for the emission reductions retained from the SORE regulations
obviously remains compelling. Finally, regarding consistency with
section 209, CARB stated that the amendments (1) apply only to nonroad
engines and vehicles and not to motor vehicles or engines, (2) apply
only to those nonroad engines and vehicles which are not included in
the preempted categories, and (3) do not raise any concerns of
inadequate leadtime or technological feasibility or impose any
inconsistent certification requirements (compared to the Federal
requirements).
EPA agrees with all CARB findings with regard to the provisions
listed. Additionally, no information was presented to EPA by any party
which would demonstrate that California did not meet the burden of
satisfying the statutory criteria of section 209(e). For these reasons,
EPA authorizes California to enforce these durability standards.
My decision will affect not only persons in California but also the
manufacturers outside the State who must comply with California's
requirements in order to produce nonroad engines and vehicles for sale
in California. For this reason, I hereby determine and find that this
is a final action of national applicability.
Under section 307(b)(1) of the Act, judicial review of this final
action may be sought only in the United States Court of Appeals for the
District of Columbia Circuit. Petitions for review must be filed by
January 20, 2004. Under section 307(b)(2) of the Act, judicial review
of this final action may not be obtained in subsequent enforcement
proceedings.
As with past authorization decisions, this action is not a rule as
defined by Executive Order 12866. Therefore, it is exempt from review
by the Office of Management and Budget as required for rules and
regulations by Executive Order 12866.
In addition, this action is not a rule as defined in the Regulatory
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a
supporting regulatory flexibility analysis addressing the impact of
this action on small business entities.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).
Finally, the Administrator has delegated the authority to make
determinations regarding authorizations under section 209(e) of the Act
to the Assistant Administrator for Air and Radiation.
Dated: November 10, 2003.
Robert Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 03-29183 Filed 11-20-03; 8:45 am]
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