Control of Emissions From New Nonroad Diesel Engines: Amendments
to the Nonroad Engine Definition
[Federal Register: April 11, 2003 (Volume 68, Number 70)]
[Rules and Regulations]
[Page 17741-17748]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ap03-8]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 89
[AMS-FRL-7482-1]
Control of Emissions From New Nonroad Diesel Engines: Amendments
to the Nonroad Engine Definition
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is issuing a direct final rule revising the definition of
nonroad engines to include all diesel-powered engines used in
agricultural operations in the State of California that are certified
by the engine maker to meet the applicable nonroad emission standards.
Our rule will consider such engines as nonroad engines without regard
to whether these engines are portable or transportable or how long
these engines remain in one fixed location at a farm.
DATES: This direct final rule is effective on May 14, 2003, without
further notice, unless we receive adverse comments by May 12, 2003, or
receive a request for a public hearing by April 28, 2003. Should we
receive any adverse comments on this direct final rule, we will publish
a timely withdrawal in the Federal Register informing the public that
this rule will not take effect.
ADDRESSES: Comments: All comments and materials relevant to today's
action should be submitted to Public Docket No. OAR-2003-0046 at the
following address: Environmental Protection Agency, EPA Docket Center
(EPA/DC), Air and Radiation Docket, Mail Code 6102T, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460.
Docket: Materials relevant to this rulemaking are contained in
Public Docket Number OAR-2003-0046 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. You can reach the Reading Room
by telephone at (202) 566-1742, and by facsimile at (202) 566-1741. The
telephone number for the Air Docket is (202) 566-1742. You may be
charged a reasonable fee for photocopying docket materials, as provided
in 40 CFR part 2.
FOR FURTHER INFORMATION CONTACT: Robert Larson, U.S. EPA, National
Vehicle and Fuel Emissions Laboratory, Transportation and Regional
Programs Division, 2000 Traverwood Drive, Ann Arbor, MI 48105;
telephone (734) 214-4277, fax (734) 214-4956, e-mail
larson.robert@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Regulated Entities
Entities potentially impacted by this change in regulation are
farming interests in the State of California and those interests that
manufacture or put into commerce new, compression-ignition nonroad
engines, including:
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Examples of
Category NAICS codes potentially regulated
entities
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Manufacturing................. 333618 Manufacturers of new
nonroad diesel
engines.
Agriculture, Forestry, 111XXX Farms with crop
Fishing, Hunting. production.
Agriculture, Forestry, 112XXX Farms with animal
Fishing, Hunting. production.
Manufacturing................. 333111 Farm machinery and
equipment.
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B. How Can I Get Copies of This Document?
1. Docket. EPA has established an official public docket for this
action under Air Docket ID No. OAR-2003-0046. The official public
docket consists of the documents specifically referenced in this
action, any public comments received, and other information related to
this action. 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. The official
public docket is the collection of materials that is available for
public viewing The official public docket is the collection of
materials that is available for public viewing at the Air Docket in the
EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution
Ave., 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, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Air Docket is (202)
566-1742.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.regulations.gov/ to submit or view public
comments, access the index of the contents of the official public
docket, and access those documents in the public docket that are
available electronically. Once in the system, select ``search'' and key
in the appropriate docket identification number.
EPA is publishing this rule without a prior proposal. However, if
we receive adverse comment on this rulemaking, we will publish a timely
withdrawal in the Federal Register indicating that this rule is being
withdrawn due to adverse comment. In the ``Proposed Rules'' section of
today's Federal Register publication, we are publishing a separate
document that will serve as the proposal to adopt the provisions in
this Direct Final Rule if adverse comments are filed. This rule will be
effective on
[[Page 17742]]
May 14, 2003, without further notice unless we receive adverse comment
by May 12, 2003, or receive a request for a public hearing by April 28,
2003. We may address all adverse comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period.
II. Summary of Rule
The change to the definition of nonroad engine is intended to
encourage agricultural operations in the State of California to reduce
emission from their existing stationary diesel-powered \1\ engines by
replacing them with engines certified to the emission standards for
nonroad engines, thereby greatly reducing NOX emissions from
these engines. The rule does not require the replacement of existing
engines with certified engines. However, as explained below, EPA
believes that owners of engines will choose to replace them
voluntarily.
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\1\ In this preamble, references to diesel-powered engines or
diesel engines denotes engines operating over what is commonly
referred to as the diesel engine cycle, also known as the
compression ignition cycle. It is not limited to engines running on
diesel fuel. For example, engines fueled with diesel fuel,
compressed natural gas (CNG), or other fuel, may be diesel-powered
engines.
------------------------------------------------------------------------
The Clean Air Act divides internal combustion engines into three
categories: Stationary internal combustion engines, engines used in
highway motor vehicles, and nonroad engines. The last category includes
virtually all mobile engines that are not used in motor vehicles.
Nonroad engines are considered mobile sources under the Act and are
regulated by EPA under section 213 of the Act. However, the boundaries
between these three categories of engines is not well delineated in the
Act, so EPA promulgated a rule defining ``nonroad engine,'' exercising
its authority to clarify these boundaries (59 FR 31306, June 17, 1994).
See 40 CFR 89.2. The current definition of nonroad engine requires that
the engine meet one of several criteria primarily based on how it is
used. For example, the engine is defined as a nonroad engine if it is
used to propel a piece of mobile equipment such as a bulldozer or farm
tractor or if it is used in equipment that is propelled while
performing its function such as a lawn mower. In addition, the engine
is considered a nonroad engine if it is used in a piece of equipment
that is portable or transportable. Such equipment could include a pump
mounted on a trailer or on a set of skids for the purpose of moving the
equipment from one location to another for operation in multiple
locations. However, such an engine would not be considered a nonroad
engine if the engine or the equipment in which it is located is
actually used in one fixed location for more than 12 consecutive
months. If an engine is located in one place and operated more than 12
consecutive months or otherwise does not meet the definition of nonroad
engine (for example, if it is permanently attached to one location),
the engine is not considered a nonroad engine and is not subject to
EPA's emission standards for nonroad engines. Instead, it is generally
considered stationary and is subject to regulation under Titles I and V
of the Clean Air Act.
In the case of agricultural pump engines used in the State of
California, EPA estimates that approximately half of these fall under
the definition of nonroad engines due to their portability while the
rest are considered stationary. Other than portability, both sets of
engines perform basically the same set of functions and operate
similarly. Thus, a farming operation could have engines of the same
horsepower and even the same manufacturer performing the same basic
function of powering a pump, but one would be considered a mobile
source nonroad engine subject to the requirements established under
Title II of the Clean Air Act while its counterpart is treated as
stationary and subject to the provisions of Titles I and V of the Clean
Air Act.
In California, stationary agricultural pump engines have
historically not been required to reduce their emission levels.\2\ In
contrast, nonroad engines have emission standards in place which have
substantially improved their emission performance. Thus, using the
example case from the previous paragraph, an agricultural operation
could have two pump engines identical in function except the one
considered a nonroad engine could have significantly better emission
performance than its counterpart stationary pump engine. Clearly, from
an emission performance standpoint, it would be preferable to have both
engines meeting the lower emission levels of the nonroad engine.
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\2\ California state law presently exempts these engines from
all New Source Review and Title V permitting requirements as well as
any local operating permit requirements. As a result of this
exemption, EPA recently proposed to find that the California State
Implementation Plan is substantially inadequate. 68 FR 7327
(February 13, 2003)
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Due to the substantial number of agricultural pump engines in use
in California, particularly concentrated in the major agricultural
areas such as the San Joaquin Valley, and due to the fact that the
portion of these engines installed in stationary pumps have not been
previously controlled (except perhaps by voluntary action of the owner
\3\), we believe it would be environmentally beneficial to encourage
agricultural operations to replace relatively high emitting stationary
pump engines with engines meeting the nonroad emission standards. The
State of California has in fact acted since 1999 to reduce the
emissions from these stationary engines by replacing these stationary
engines through its Carl Moyer program which has provided funding for
the purchase of new engines certified to meet the emission standards
applicable to new nonroad engines.
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\3\ Some pieces of stationary agricultural equipment use engines
that are certified to nonroad engine standards, or that are
identical to certified engines. Internal combustion engines can be
manufactured for many uses, and some engines manufactured to meet
the nonroad engine standards may end up in stationary equipment.
Farmers may choose to purchase such equipment.
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EPA is changing the definition of nonroad engine to include diesel
engines used in agricultural operations in the State of California that
are certified by the engine manufacturer to meet the nonroad emission
standards for that engine, where the engine is part of an engine family
that contains engines that otherwise meet the definition of nonroad
engine. Such engines will no longer be stationary internal combustion
engines. Thus, farmers would not include the emissions from such
nonroad engines when they determine whether their agricultural
operation is a major source for purposes of Title V permitting or other
requirements. We believe that this change will encourage the use of
engines certified to nonroad standards, which will result in a
reduction in emissions from uncontrolled levels. We believe that
farmers will prefer to obtain new engines regulated as nonroad engines,
rather than to continue using engines that will be regulated under
stationary source permitting requirements including Title V and New
Source Review (NSR). Regulations promulgated under Title II focus
primarily on compliance by manufacturers rather than users, whereas
Title V and NSR focuses compliance requirements on users.
Of course, replacing current engines with new nonroad engines comes
at some cost. However, the State of California through its Carl Moyer
program has been providing funds to help farmers replace existing
engines with newer cleaner engines. Additionally, the U.S. Department
of Agriculture, through programs administered by its Natural Resources
[[Page 17743]]
Conservation Services (NCRS) anticipates making some funding available
under the Environmental Quality Incentives Program (EQIP) to the extent
practicable for replacement of existing agricultural engines with
engines meeting the requirements of our nonroad regulations.
What Is EPA Doing?
We are revising the definition of nonroad engines to include
certain diesel engines that are used in agricultural operations in
California that would otherwise not meet the current definition of
nonroad engine. As a result, a diesel engine used in agricultural
operations in California that does not meet the current definition,
e.g. because it is used in a stationary application, would still be
considered a nonroad engine if it is part of an engine family certified
by the engine maker to the applicable nonroad engines standards, and at
least some of the engines in that engine family meet the current
definition of nonroad engine.
Internal combustion engines are often manufactured for use in many
different applications. Engines that are part of an engine family that
has been certified by EPA to meet applicable nonroad engine standards
may get used in either portable or stationary applications. Under the
current definition, only the engines used in mobile applications meet
the definition of nonroad engine and those used in stationary
applications do not. Under this revision, an engine in that certified
engine family that is used in agricultural operations in California
would continue to meet the definition of nonroad irrespective of its
use as long as some engines in the engine family are used in portable
applications.
This rule change does not require farmers in California to replace
existing engines with new engines certified to the nonroad standards.
However, for farmers who have already made this replacement or who do
so in the future, their engines will be treated by EPA as nonroad
engines, subject to the mobile source requirements established under
Title II of the Clean Air Act, rather than as stationary engines
subject to the stationary source requirements of Title I and V of the
Clean Air Act. Those engines that are not replaced will continue to be
regarded as stationary sources subject to those requirements.
Why Is EPA Making This Change?
As discussed below, EPA believes that allowing diesel agricultural
engines in California to be classified as nonroad engines if they are
certified to those standards will result in more emission reductions
than would otherwise occur if such engines remained subject to the
stationary source requirements and that these reductions will occur
more quickly than if these engines continue to be regulated as
stationary sources.
Engines used in stationary applications on farms in California have
previously not been regulated under the stationary source requirements
of the Clean Air Act, including Title V requirements. Effective
November 14, 2002, such engines became subject to the Title V permit
program pursuant to EPA's regulations at 40 CFR part 71.\4\ Title V,
however, does not require subject sources to reduce emissions from the
source's operation. The main goal of Title V is to improve a source's
compliance with all Clean Air Act requirements to which it is subject.
New Source Review requirements of the Clean Air Act requires emission
controls be evaluated and possibly installed for new major sources or
existing major sources which perform a significant modification. While
New Source Review and other requirements under Title I or Title V
(e.g., Reasonably Available Control Technology requirements for major
sources of NOX required under Title I) may lead to emission
reduction for some engines in the future, it is unclear to what extent
agricultural engines in California would be required to reduce
emissions as a result of such requirements. Finally, even assuming
potential future emission controls for some of these engines that could
result from stationary source requirements, it is not expected that
such controls would result in greater total emission reductions
compared to what would result from using engines meeting the applicable
nonroad emission standards.
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\4\ Federal Register 63551 (October 15, 2002)
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In contrast, regulations for diesel nonroad engines establish
federal emission standards for these engines and a pre-production
certification procedure to ensure compliance with the standards, and
include various other compliance and enforcement measures. These
standards require substantial control of emissions and are generally
designed to ``achieve the greatest degree of emission reduction
achievable through the application of [available]
technology * * *,
giving appropriate consideration to * * * cost * * * noise, energy and
safety factors.'' See Clean Air Act section 213(a)(3). These
regulations have been in effect beginning with the 1996 model year. The
so called ``Tier 2'' version of these regulations is currently being
phased in and will result in a further improvement in emission
performance. More stringent ``Tier 3'' standards will be phased in
beginning with the 2006 model year. Additionally, EPA is developing
another set of more stringent nonroad emission standards which we
anticipate will very substantially improve the emission performance of
new nonroad engines in the future. This sequence of increasingly more
stringent emission regulations for these new nonroad diesel engines
will assure that the nonroad requirements result in the maximum
feasible emission controls we can anticipate for at least the next
decade or so. If engines meeting these nonroad standards are
extensively used in agricultural applications, maximum feasible
emission reductions should result. This regulatory amendment is
intended to encourage the widespread use of such nonroad engines for
all agricultural pump applications in the State of California.
What Is Current Emission Performance of These Stationary Engines?
We estimate that approximately 3,700 stationary diesel engines are
used in agricultural applications in California, primarily for powering
irrigation pumps such as those used for crop irrigation and for tending
livestock. Some of these are quite old, dating as far back as 1960.
However, between 1999 and 2001 approximately 1,500 engines were
replaced through a state financed program known as the Carl Moyer
program. Under the Carl Moyer program, existing stationary diesel
engines were replaced with new engines of similar power and performance
that were also certified to meet the nonroad emission standards. It is
estimated that this program reduced oxides of nitrogen (NOX)
emissions statewide in California by over 1,750 tons per year. The
remaining approximately 2,200 stationary engines are estimated to have
average emission levels approximately 8.76 g/bhp-hr, which is about
twice as much as the emissions of a nonroad engine manufactured to
current (i.e., Tier 2) nonroad standards (4.8 to 4.9 g/hphr
NOX + HMHC for engines between 100-750 hr). Current nonroad
standards also require emissions of particulate matter (PM) to be
approximately 40 percent lower than Tier 1 levels.
What Is the Impact of These Stationary Source Emissions on Air Quality?
Currently, agricultural stationary source diesel engines represent
one of the most significant sources of NOX emissions from
agricultural activities in California. Particularly in major farming
areas such as the San Joaquin Valley, NOX emissions from
stationary diesel engines represent approximately 5% of
[[Page 17744]]
the total NOX emissions inventory, thus contributing to the
ozone and PM-10 non-attainment status of the area. These engines also
emit particulate matter directly.
Thus, replacing these relatively dirty stationary diesel engines
with much cleaner currently available diesel engines will help air
quality immediately. The anticipated future standards which are
expected to further reduce emissions from nonroad engines will also
mean that new agricultural engines in California should have even
better emission performance in the future, providing more emission
benefits as farmers replace their engines in later years.
What Would Happen if This Change Were not Made?
Under Title V, farms need to assess their inventories of emissions.
If the total of these emissions exceeds a certain level (called the
major source threshold), they would be subject to the permitting
requirements of Titles I and V of the CAA. One of these permitting
requirements is the NSR program. NSR requires major stationary sources
that desire to construct for the first time or to modify their facility
to get a NSR permit (also called a preconstruction permit) and meet
emission control requirements. The other permitting requirement is
EPA's operating permits program. This requires major stationary sources
to get an operating permit, but does not require emission control.
Thus, farm engines classified as stationary sources and operated on a
farm which has collective emissions great enough to trigger the major
source threshold would be subject to both these permitting programs.
Under today's action, stationary farm engines that meet the nonroad
certification requirement would not be subject to these two permitting
programs. They also would not be subject to other potential state or
local requirements directed specifically at stationary sources (e.g.,
NOX RACT programs under Title I), but could be subject to
other state or local requirements directed at nonroad engines (e.g.,
state nonroad engine emission standards or use restrictions).
What Do We Expect Will Happen as a Result of This Change?
As noted above, stationary engines in agricultural applications
have in the past not been required to control their emissions under
either federal regulations or under any State of California regulation
or program aimed at improving air quality. In most cases, diesel
engines represent the predominant source of NOX emissions on
the farm. Even after taking into account the engines that were already
replaced under the Carl Moyer program, we estimate that around 2,200
uncontrolled stationary diesel agricultural engines remain in use in
California. We estimate that replacing these over the next two years
with engines meeting the existing Tier 2 and Tier 3 nonroad emission
standards would result in a reduction of up to 4,400 tons of
NOX annually from agricultural operations. Particularly in
areas with intensive levels of farming, such reductions would be
significant. We estimate replacing the current stationary diesel
engines with new nonroad engines would reduce NOX emission
for all current agricultural diesel engines, both stationary and
nonroad, by about 20 percent. It would also represent a significant
reduction in direct PM emissions from such engines.
This regulatory change will specify that stationary diesel engines
used in agricultural applications in California be treated as nonroad
sources if they otherwise meet the applicable nonroad emission
requirements and are part of an engine family that includes engines
that otherwise meet the nonroad engine definition. As a voluntary
program, not all farming operations may choose to switch their
stationary diesel engines to compliant nonroad engines. However, under
Title V, agricultural operations have to inventory their sources of
stationary emissions and estimate the combined level of annual
emissions from these sources. For ozone nonattainment areas, operations
which exceed an annual air emissions threshold for a pollutant (50 tons
per year for areas designated as having ``serious'' air pollution, 25
tons per year for areas designated as having ``severe'' air pollution
and 10 tons per year for areas designated as having ``extreme'' air
pollution) are designated as ``major'' sources of air pollution and
have to annually report these emissions. For PM-10 nonattainment areas,
the thresholds are 100 tons for operations in moderate nonattainment
areas and 70 tons for areas in serious nonattainment. Additionally,
operations designated as ``major'' stationary sources must meet the NSR
and NOX RACT requirements discussed below. For a significant
number of agricultural operations, switching from their existing
stationary source diesel engines to new nonroad certified engines will
remove these engines from the stationary source category, reducing
farms' stationary source emissions enough so that they will no longer
be considered major sources of NOX emissions, thus avoiding
the obligations noted above. For those remaining agricultural
operations which would still exceed the ``major'' source threshold even
after switching to nonroad certified engines, these operations may
choose to make this switch anyway as this will reduce some of the
reporting and other procedural obligations under any potential future
stationary source control programs. Finally, we anticipate that some of
the cost of the new engines may be subsidized by the USDA, consistent
with eligibility requirements under the EQIP or perhaps via continued
funding under the State of California's Carl Moyer program. For these
reasons, we believe that it is likely that all agricultural pump
engines currently used in operations which would otherwise exceed the
threshold for major source designation and subject to regulation under
Title V will be converted to new nonroad certified engines. In
addition, as this regulation will encourage the manufacture of
agricultural equipment containing engines meeting the nonroad engine
standards, it is also likely that this approach will result in greater
use of lower-emitting agricultural engines even in locations that do
not exceed major source thresholds.
As noted above, this is a voluntary program so the agricultural
operation has the opportunity to choose to take advantage of this
regulation change or not. No adverse impact on agricultural operations
is anticipated under this rule.
While this rule would exclude a set of sources in California from
certain provisions of Title I and V, we would expect a lesser degree of
emission control from these engines if this regulation change were not
being adopted. The State or localities may choose not to require
controls for many engines, particularly those that are not located in
major sources. Those engines not on farms designated ``major'' sources
may not be controlled, and it is not clear that even engines that are
controlled would be controlled to the same level of emissions as
nonroad certified engines. Since the nonroad rules are generally aimed
at achieving the greatest emission control available, it would be
unlikely stationary source controls would result in any greater
control.
NSR requirements, which apply only to new or modified sources,
would require Lowest Achievable Emissions Rate (LAER) \5\ in
nonattainment areas or
[[Page 17745]]
Best Achievable Control Technology (BACT) \6\ in attainment areas. For
internal combustion engines similar to the diesel agricultural engines
affected by this rule, no single industry-wide technology has been
generally determined to be LAER or BACT, but some recent local
decisions regarding LAER and BACT in California indicate that diesel
engines have not generally had to meet NOX emission
standards more stringent than current Title II standards.
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\5\ LAER is defined as the most stringent emission limitation
derived from either of the following: (1) The most stringent
emission limitation contained in the implementation plan of any
State for such class or category of source; or (2) the most
stringent emission limitation achieved in practice by such class or
category of source. CAA Section 171(3)
\6\ The BACT requirement is defined as: ``An emissions
limitation (including a visible emission standard) based on the
maximum degree of reduction for each pollutant subject to regulation
under the Clean Air Act which would be emitted from any proposed
major stationary source or major modification which the
Administrator, on a case-by-case basis, taking into account energy,
environmental, and economic impacts and other costs, determines is
achievable for such source or modification through application of
production processes or available methods, systems, and techniques,
including fuel cleaning or treatment or innovative fuel combustion
techniques for control of such pollutant. In no event shall
application of best available control technology result in emissions
of any pollutant which would exceed the emissions allowed by any
applicable standard under 40 CFR parts 60 and 61. If the
Administrator determines that technological or economic limitations
on the application of measurement methodology to a particular
emissions unit would make the imposition of an emissions standard
infeasible, a design, equipment, work practice, operational
standard, or combination thereof, may be prescribed instead to
satisfy the requirement for the application of best available
control technology. Such standard shall, to the degree possible, set
forth the emissions reduction achievable by implementation of such
design, equipment, work practice or operation, and shall provide for
compliance by means which achieve equivalent results.'' 40 CFR
52.21(b)(12)
------------------------------------------------------------------------
In addition, the Clean Air Act requires Reasonably Available
Control Technology (RACT) for major NOX stationary sources
in most ozone nonattainment areas.\7\ We have defined RACT as the
lowest emission limitation that a particular source is capable of
meeting by the application of control technology that is reasonably
available considering technological and economic feasibility. 44 FR
53762 (September 17, 1979). RACT may require technology that has been
applied to similar, but not necessarily identical, source categories.
57 FR 55620 (November 25, 1992). There has been no source category-wide
RACT determination for these engines, but we believe it is unlikely
that RACT requirements for these engines would be more stringent, and
in some cases they may be less stringent, than the applicable nonroad
engine standards.
------------------------------------------------------------------------
\7\ There are similar RACM requirements in PM-10 nonattainment
areas.
------------------------------------------------------------------------
Finally, any emission reductions under the stationary source
provisions would likely occur later than anticipated via this rule
change. While NSR and other Title I requirements may at some point in
the near future begin to be applied to agricultural sources,
implementation of such requirements would have to allow for the lead
time needed to take regulatory and/or legislative action to promulgate
such regulations and the lead time needed to implement such
regulations.
There are some restrictions on state and local ability to regulate
nonroad engines. See Clean Air Act section 209(e). States and local
jurisdictions may not promulgate their own emission standards for
nonroad engines. However, the State of California may promulgate and
enforce standards for all nonroad agricultural engines, except new
engines under 175 horsepower, if the state receives authorization from
EPA to do so. Though California must make certain showings to receive
this authorization, the Clean Air Act provides considerable deference
to California to promulgate its own standards. Even for engines below
175 horsepower, California can receive authorization to promulgate
standards for such engines if they are not standards affecting new
(i.e., ``showroom new'') engines.
In addition, states and localities may promulgate use restrictions
for such engines, such as time-of-use restrictions and fuel
restrictions. These requirements, as well as the state standards
discussed in the paragraph above, may be enacted by state and local
entities to help areas meet the attainment requirements under the Act
by achieving even greater NOX and PM reductions.
Why Are Only Agricultural Engines in the State of California Covered by
This Rule Change?
This rule represents a small deviation from the general manner in
which EPA has delineated the boundary between nonroad engines and
stationary internal combustion engines. EPA has in the past based the
definition on whether the engine will be used in a mobile or stationary
manner, not on other characteristics such as engine size or the type of
work, or industrial category of work, in which the engine was engaged.
EPA believes that the particular circumstances of these California
agricultural engines make it appropriate for EPA to use a somewhat
different approach in this targeted rule.\8\ First, the engines being
reclassified in this rule are doing work that is indistinguishable from
work done by engines already classified as nonroad engines--in fact, as
noted above agricultural operations often have a combination of nonroad
and stationary engines performing the same function, such as pumping
water for crop irrigation or livestock watering. Moreover, the
certified engines that would be defined as nonroad engines by this
regulatory change are engines that are part of engine families that
have been certified for use and are used in other mobile applications.
Therefore, many of the certified engines affected by this rule are in
fact indistinguishable from other certified nonroad engines.
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\8\ The use of targeted rules of limited scope, especially in
the context of a voluntary program, is similar to other projects in
which EPA has engaged.
------------------------------------------------------------------------
More importantly, the unique circumstances in California make this
revision appropriate for these engines. As noted above, unlike other
stationary sources that are already subject to stationary source
emission controls, farm engines have not historically been subject to
stationary source emission control regulations. The approach we use in
this rule basically allows a farm to voluntarily reduce emissions from
its engines in a manner that will result in definite emission
reductions that are likely greater and more rapid than would be
achieved under the previous approach. This rule will thus not disturb
existing regulatory programs in a way that a broader rule would.
This revision is particularly appropriate for California.
California is uniquely positioned as the only state that may promulgate
its own standards for nonroad engines under section 209(b). Other
states may only promulgate standards identical to any California
chooses to adopt. Since California is in a unique position to continue
promulgating standards regulating these engines as nonroad engines, it
can implement effective emission control programs for these engines.
Also, given the particular air quality concerns and the need for
reductions of NOX in California as well as the opportunity
to significantly reduce emissions from agricultural pump engines (the
opportunity benefitted by the potential funding through the Carl Moyer
program and the U.S. Department of Agriculture), farms in California
are uniquely situated to take advantage of this regulatory provision.
This rule is in many ways an extension of the policy behind
California's existing Carl Moyer program to provide new certified
engines to these farmers. That program provided funding for farmers
that purchased engines meeting nonroad standards, whereas this revision
provides regulatory changes that encourage the use of
[[Page 17746]]
certified engines. EPA believes that this action is similar in many
ways to programs EPA has implemented and continues to consider, under
which EPA offers flexibility in its regulations, etc., in site-specific
situations to encourage companies, communities, and other project
sponsors to develop ``cleaner, cheaper and smarter'' alternatives to
the current system. See 62 FR 19872 (April 23, 1997), for example.
It is not clear that this approach would be appropriate in other
circumstances, given the different historical and environmental
contexts and different types of engines used. Moreover, there is the
potential that a broader use of this approach could possibly lead to
exploitation of mobile source certification as a way to avoid
stationary source controls, or might otherwise disrupt the proper
functioning of the federal, state and local programs to control
stationary source emissions. Given the potentially significant
reductions that this program will facilitate, the general lack of
reductions previously required under the existing regulatory approach,
the voluntary nature of this approach, available funding and the
limited scope of this approach, EPA believes that this rule is
appropriate and justified.
What Are the Statutory Provisions Underlying This Rule Change?
The Clean Air Act's statutory provisions are relatively ambiguous
regarding the specific boundaries between nonroad engines and
stationary internal combustion engines. Section 216(10) states that a
nonroad engine is ``an internal combustion engine * * * that is not
used in a motor vehicle or a vehicle used solely for competition, or
that is not subject to standards promulgated under section 111 or
section 202.'' Section 111(a)(3) states that ``stationary source means
any building, structure, facility or installation which emits or may
emit any air pollutant. Nothing in Title II of this Act relating to
nonroad engines shall be construed to apply to stationary internal
combustion engines.''
EPA's prior rulemaking that clarified the delineation between
nonroad and stationary engine focused on the use and application of the
engine, and did so on an engine by engine basis. This targeted revision
also focuses on the application and use of engines, but in a broader
manner. Under this approach, EPA looks at the engine family as a group,
not engine by engine. Where the engine family contains engines that
are, under the previous definition, nonroad engines, EPA will allow
other specific engines that are essentially identical to be considered
nonroad engines. We believe this approach is reasonable in these
circumstances for the reasons delineated above.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency is required to determine whether this regulatory action would be
``significant'' and therefore subject to review by the Office of
Management and Budget (OMB) and the requirements of the Executive
Order. The order defines a ``significant regulatory action'' as any
regulatory action that is likely to result in a rule that may:
--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;
--Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or,
--Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
Pursuant to the terms of Executive Order 12866, we have determined
that this final rule is not a ``significant regulatory action.''
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq., and
implementing regulations, 5 CFR part 1320, do not apply to this action
as it does not involve the collection of information as defined
therein.
C. Regulatory Flexibility Act
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this rule will not have a significant economic impact
on a substantial number of small entities, in particular because this
rule change does not mandate that farms replace any existing engine.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments, and the private sector. Under section 202 of the UMRA, we
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more for
any single year. Before promulgating a rule for which a written
statement is needed, section 205 of the UMRA generally requires us to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows us to adopt an alternative that is
not the least costly, most cost-effective, or least burdensome
alternative if we provide an explanation in the final rule of why such
an alternative was adopted.
Before we establish any regulatory requirement that may
significantly or uniquely affect small governments, including tribal
governments, we must develop a small government plan pursuant to
section 203 of the UMRA. Such a plan must provide for notifying
potentially affected small governments, and enabling officials of
affected small governments to have meaningful and timely input in the
development of our regulatory proposals with significant federal
intergovernmental mandates. The plan must also provide for informing,
educating, and advising small governments on compliance with the
regulatory requirements.
This rule contains no federal mandates for state, local, or tribal
governments as defined by the provisions of Title II of the UMRA. The
rule imposes no enforceable duties on any of these governmental
entities. Nothing in the rule will significantly or uniquely affect
small governments.
We have determined that this rule does not contain a federal
mandate that may result in estimated expenditures of more than $100
million to the private sector in any single year. This action has the
net effect of revising certain provisions of the Tier 2 rule.
Therefore, the requirements of the UMRA do not apply to this action.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by state
[[Page 17747]]
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government.
Under section 6 of Executive Order 13132, we may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or we
consults with state and local officials early in the process of
developing the proposed regulation. We also may not issue a regulation
that has federalism implications and that preempts state law, unless
the Agency consults with state and local officials early in the process
of developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements
for rules that preempt state or local law, even if those rules do not
have federalism implications (i.e., the rules will not have substantial
direct effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government). Those
requirements include providing all affected state and local officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, we also must consult, to the
extent practicable, with appropriate state and local officials
regarding the conflict between state law and federally protected
interests within the Agency's area of regulatory responsibility.
This rule does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule revises certain
provisions of earlier rules that adopted national standards to control
emissions from nonroad diesel engines. The requirements of the rule
will be enforced by the federal government at the national level. Thus,
the requirements of section 6 of the Executive Order do not apply to
this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. Today's
rule does not uniquely affect the communities of American Indian tribal
governments. Furthermore, today's rule does not impose any direct
compliance costs on these communities and no circumstances specific to
such communities exist that will cause an impact on these communities
beyond those discussed in the other sections of today's document. Thus,
Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, section 5-501 of the Executive Order directs us to
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by us.
This rule is not subject to the Executive Order because it is not
an economically significant regulatory action as defined by Executive
Order 12866. Furthermore, this rule does not concern an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to
use voluntary consensus standards in our regulatory activities unless
it would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) developed or adopted by voluntary consensus standards
bodies. The NTTAA directs us to provide Congress, through OMB,
explanations when we decide not to use available and applicable
voluntary consensus standards.
No new technical standards are established in today's rule.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to Congress and the comptroller General of the United
States. We will submit 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 United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective May 27, 2003.
IV. Statutory Provisions and Legal Authority
Statutory authority for today's final rule is found in the Clean
Air Act, 42 U.S.C. 7401 et seq., in particular, section 213 of the Act,
42 U.S.C. 7547. This rule is being promulgated under the administrative
and procedural provisions of Clean Air Act section 307(d), 42 U.S.C.
7607(d). This rule will affect not only persons in California but also
the manufacturers outside the State who manufacture engines and
equipment 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
[[Page 17748]]
States Court of Appeals for the District of Columbia Circuit.
List of Subjects in 40 CFR Part 89
Environmental protection, Administrative practice and procedure,
Motor vehicle pollution.
Dated: April 7, 2003.
Christine Todd Whitman,
Administrator.
? For the reasons set forth in the preamble, chapter I, title 40 of the
Code of Federal Regulations is amended as follows:
PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD
COMPRESSION--IGNITION ENGINES
? 1. The authority for part 89 continues to read as follows:
Authority: 42 U.S.C. 7521, 7522, 7523, 7524, 7527, 7541, 7542,
7543, 7545, 7547, 7549, 7550 and 7601(a).
Subpart A--[Amended]
? 2. Section 89.2 is amended by adding paragraph (1)(iv) to the
definition for ``nonroad engine'' to read as follows:
Sec. 89.2 Definitions.
* * * * *
Nonroad engine means:
(1) * * *
(iv) That is a compression-ignition engine included in an engine
family certified to meet applicable nonroad emission requirements of
this part if: the engine is used in agricultural operations in the
growing of crops or raising of fowl or animals in the State of
California; and any other engines in the certified engine family
otherwise meet the definition of nonroad engine.
* * * * *
[FR Doc. 03-8955 Filed 4-10-03; 8:45 am]
BILLING CODE 6560-50-P
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