[Federal Register Volume 73, Number 195 (Tuesday, October 7, 2008)]
[Notices]
[Pages 58583-58585]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23671]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8726-5]


California State Nonroad Engine Pollution Control Standards; 
California Nonroad Compression Ignition Engines; Within-the-Scope 
Request; Opportunity for Public Hearing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.

-----------------------------------------------------------------------

SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has amended or adopted emission standards and accompanying 
testing procedures for new nonroad compression ignition (CI) engines in 
two CARB rulemakings. By letter dated July 18, 2007, CARB submitted a 
request seeking EPA confirmation that its amendments affecting three 
broad power categories expressed in kilowatts (kW) (under 19 kW, 19 kW 
to under 130 kW, and 130kW and greater) are within the scope of 
previous authorizations issued by EPA under section 209(e) of the Clean 
Air Act (CAA), 42 U.S.C. 7543(e). In the alternative CARB seeks a new 
authorization for these standards. This notice announces that EPA has 
tentatively scheduled a public hearing concerning California's request 
and that EPA is accepting written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on November 6, 2008 beginning at 10 a.m. EPA will hold a 
hearing only if a party notifies EPA by October 27, 2008, expressing 
its interest in presenting oral testimony. By November 3, 2008, any 
person who plans to attend the hearing should call David Dickinson at 
(202)343-9256 to learn if a hearing will be held. If EPA does not 
receive a request for a public hearing, then EPA will not hold a 
hearing, and instead consider CARB's request based on written 
submissions to the docket. Any party may submit written comments by 
November 21, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0640, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2008-0640, Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0640. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    Parties wishing to present oral testimony at the public hearing 
should provide written notice to David Dickinson at the address noted 
below. If EPA receives a request for a public hearing, EPA will hold 
the public hearing at 1310 L St, NW., Washington, DC 20005 at 10 a.m.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and 
Innovative Strategies Division (6405J), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460. Telephone: 
(202) 343-9256, Fax: (202) 343-2804, e-mail address: 
Dickinson.David@EPA.GOV.

SUPPLEMENTARY INFORMATION:
    Background and Discussion: 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. Section 209(e)(2) of the Act requires 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).\1\
---------------------------------------------------------------------------

    \1\ Section 209(e)(1) states, in part: No State or and 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 used in farm equipment or 
vehicles and which are smaller that 175 horsepower. (B) New 
locomotives or new engines used in locomotives. EPA's regulation was 
published at 59 FR 36969 (July 20, 1994), and regulations set forth 
therein, 40 CFR Part 85, Subpart Q, Sec. Sec.  85.1601 et seq. A new 
rule, signed on September 4, 2008, moves these provisions to 40 CFR 
Part 1074.

---------------------------------------------------------------------------

[[Page 58584]]

    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). The section 209(e) rule and 
its codified regulations \2\ 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 and they 
are as follows:
---------------------------------------------------------------------------

    \2\ See 40 CFR Part 85, Subpart Q, Sec.  85.1605. Upon 
effectiveness of the new rule, these criteria will be codified at 40 
CFR 1074.105.
---------------------------------------------------------------------------

    (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 ``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.\3\ 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.\4\ 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).
---------------------------------------------------------------------------

    \3\ See 59 FR 36969, 36983 (July 20, 1994).
    \4\ Section 209(e)(1) of the Act has been implemented, see 40 
CFR Part 85, Subpart Q Sec. Sec.  85.1602, 85.1603. Upon 
effectiveness of the new rule noted above, these permanently 
preempted categories will be codified at 40 CFR 1074.10, 1074.12.
---------------------------------------------------------------------------

    Finally, because California's nonroad standards and enforcement 
procedures must be consistent with section 209(b)(1)(C), EPA reviews 
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 he finds that California ``standards and accompanying 
enforcement procedures are not consistent with section 202(a)'' of the 
Act. Previous decisions granting waivers of Federal preemption for 
motor vehicles have stated that 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 
procedures.\5\
---------------------------------------------------------------------------

    \5\ 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).
---------------------------------------------------------------------------

    CARB has submitted to EPA its 2000 Off-road Compression-Ignition 
Engine regulations adopted at its January 28, 2000 public hearing 
(these regulations codified and incorporated all new off-road CI 
emission standards and test procedures in division 3, chapter 9, 
article 4 of title 13, California Code of Regulations to include all 
California-certified 2000 and subsequent model year off-road CI 
engines) and its regulations adopted at its December 9, 2004 Board 
hearing (these regulations harmonized California's standards and 
procedures with those promulgated by EPA in its Tier 4 rulemaking (69 
FR 38958 (June 29, 2004) and EPA subsequent technical amendments at 70 
FR 40420 (July 13, 2005)).
    When EPA receives new authorization requests from CARB, EPA 
traditionally publishes a notice of opportunity for public hearing and 
comment and then publishes a decision in the Federal Register following 
the public comment period. In contrast, when EPA receives within the 
scope waiver requests from CARB, EPA usually publishes a decision in 
the Federal Register and concurrently invites public comment if an 
interested part is opposed to EPA's decision.
    Although CARB has submitted a within the scope waiver request, EPA 
invites comment on the following issues: whether California's 
standards, within the context of a within the scope analysis (a) 
Undermine California's previous determination that its standards, in 
the aggregate, are at least as protective of public health and welfare 
as comparable Federal standards, (b) affect the consistency of 
California's requirements with section 202(a) of the Act, and (c) raise 
new issues affecting EPA's previous waiver determinations. Please also 
provide comment that if CARB's standards were not found to be within 
the scope of previous waivers and instead required a full waiver 
analysis, whether (a) CARB's determination that its standards, in the 
aggregate, are at least as protective of public health and welfare as 
applicable federal standards is arbitrary and capricious, (b) 
California needs separate standards to meet compelling and 
extraordinary conditions, and (c) California's standards and 
accompanying enforcement procedures are consistent with section 202(a) 
of the Act.
    EPA also invites comment on CARB's suggestion to EPA that where 
CARB is harmonizing its standards with a more stringent federal 
standard then EPA should conduct a pre-determination hearing where 
interested parties have the opportunity to comment both on the 
appropriateness of using the within the scope mechanism and on the 
underlying authorization issues.\6\
---------------------------------------------------------------------------

    \6\ See CARB's authorization support document submitted on July 
18, 2008 at p. 21.
---------------------------------------------------------------------------

Procedures for Public Participation

    In recognition that public hearings are designed to give interested 
parties an opportunity to participate in this proceeding, there are nod 
adverse parties as such. Statements by participants will not be subject 
to cross-examination by other participants without special approval by 
the residing officer. The presiding officer is authorized to strike 
from the record statements that he or she deems irrelevant or 
repetitious and to impose reasonable time limits on the duration of the 
statement of any participant.
    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a public hearing is held, EPA will keep the 
record open until November 21, 2008. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record of the public hearing, if any,

[[Page 58585]]

relevant written submissions, and other information that he deems 
pertinent.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the great possible 
extent and label it as ``Confidential Business Information'' (CBI). If 
a person making comments want EPA to base its decision in part on a 
submission labeled CBI, then a non-confidential version of the document 
that summarizes the key data or information should be submitted for the 
public docket. To ensure that proprietary information is not 
inadvertently place in the docket, submissions containing such 
information should be sent directly to the contact person listed above 
and not to the pubic docket. Information covered by a claim of 
confidentiality will be disclosed by EPA only to the extent allowed and 
by the procedures set forth in 40 CFR Part 2. If no claim of 
confidentiality accompanies the submission when EPA receives it, EPA 
will make it available to the public without further notice to the 
person making comments.

    Dated: October 1, 2008.
Robert J. Meyers,
Principal Deputy Assistant Administrator, Office of Air and Radiation.
[FR Doc. E8-23671 Filed 10-6-08; 8:45 am]
BILLING CODE 6560-50-P