
[Federal Register Volume 76, Number 85 (Tuesday, May 3, 2011)]
[Notices]
[Pages 24872-24874]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10752]



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ENVIRONMENTAL PROTECTION AGENCY

[AMS-FRL-9301-6]


California State Nonroad Engine and Vehicle Pollution Control 
Standards; Authorization of Tier II Marine Inboard/Sterndrive Spark 
Ignition Engine Emission Standards; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: EPA today, pursuant to section 209(e) of the Clean Air Act 
(Act), 42 U.S.C. 7543(e), is granting California its request for 
authorization to enforce its emission standards and other requirements 
for its second tier (``Tier II'') of emission standards for new marine 
inboard/sterndrive spark ignition engines.

DATES: Petitions for review must be filed by July 5, 2011.

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 
California, are available for public inspection in EPA's Air and 
Radiation Docket and Information Center (Air Docket). Materials 
relevant to this decision are contained in Docket OAR-2004-0403 at the 
following location: EPA Air Docket, Room 3334, 1301 Constitution 
Avenue, NW., Washington, DC 20460. The EPA Docket Center Public Reading 
Room is open from 8 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.
    Additionally, an electronic version of the public docket is 
available through the Federal government's electronic public docket and 
comment system. You may access EPA dockets at http://www.regulations.gov. After opening the http://www.regulations.gov Web 
site, select ``Environmental Protection Agency'' from the pull-down 
Agency list, then scroll to ``Keyword or ID'' and enter EPA-HQ-OAR-
2004-0403 to view documents in the record of this Marine Engine 
Authorization Request docket. 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.
    EPA makes available an electronic copy of this Notice via the 
Internet on the Office of Transportation and Air Quality (OTAQ) 
homepage (http://www.epa.gov/OTAQ). Users can find this document by 
accessing the OTAQ homepage and looking at the path entitled ``Federal 
Register Notices.'' 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/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.
    EPA's Office of Transportation and Air Quality also maintains a Web 
page that contains general information on its review of California 
waiver and authorization requests. Included on that page are links to 
several of the prior waiver Federal Register notices which are cited 
throughout today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Robert M. Doyle, Attorney-Advisor, 
Office of Transportation and Air Quality, (6405J), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 
(U.S. mail), 1310 L Street, NW., Washington, DC 20005 (courier mail). 
Telephone: (202) 343-9258; Fax: (202) 343-2804; E-Mail: 
doyle.robert@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. 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\ 
Section 209(e)(2) of the Act requires the Administrator, after notice 
and opportunity for public hearing, 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. EPA regulations set 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\ These regulations, 
codified at 40 CFR part 1074, provide:
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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. EPA 
has moved these regulations, without changing their substance to 40 
CFR part 1074. See 73 FR 59033, 59279 (October 8, 2008).

    (a) The Administrator will grant the authorization if California 
determines that its standards will be, in the aggregate, at least as 
protective of public health and welfare as the otherwise applicable 
Federal standards.
    (b) The authorization will not be granted if the Administrator 
finds that any of the following are true:
    (1) California's determination of California is arbitrary and 
capricious;
    (2) California does not need such standards to meet compelling 
and extraordinary conditions; or
    (3) The California standards and accompanying enforcement 
procedures are not consistent with section 209 of the Act.

    As stated in the preamble to the section 209(e) rule, EPA has 
interpreted the requirement regarding whether ``California standards 
and accompanying enforcement procedures are not consistent with section 
209'' to require that California standards and accompanying enforcement 
procedures must in particular 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\

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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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    \3\ See 59 FR 36969, 36983 (July 20, 1994).
    \4\ Section 209(e)(1) of the Act has been implemented at 40 CFR 
Par 1074, 1074.10, 1074.12. Sec.  1074.10 provides in applicable 
part:
    (a) 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 part. 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 part), 
it is considered farm or construction equipment or vehicles.
    Sec.  1074.12 provides in applicable part:
    States and localities are preempted from adopting or enforcing 
standards or other requirements relating to the control of emissions 
from new locomotives and new engines used in locomotives.
    Sec.  1074.5 provides definitions of terms used in Sec.  1074.0 
and sates 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 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's ``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 
requirements.\5\
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    \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).
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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.\6\
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    \6\ See, e.g., Motor and Equipment Manufacturers Association, 
Inc. v. EPA, 627 F.2d 1095, 1111-14 (DC 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.\7\
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    \7\ See 43 FR 36679, 36680 (August 18, 1978).
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B. CARB's Authorization Request and EPA's Authorization Proceeding

    The California Air Resources Board (CARB) requested EPA's 
authorization of the IB/SD marine engine emission standards by letter 
dated March 2, 2004.\8\ The CARB standards were implemented in two 
tiers; the first tier set HC and NOX standards beginning 
with the 2003 model year engines, and the second tier set more 
stringent HC and NOX standards beginning with the 2007 model 
year engines. As required by the Act, EPA offered the opportunity for a 
public hearing and requested public comments on these new standards on 
January 12, 2005; \9\ this hearing also covered earlier CARB 
authorization requests for emission standards for marine outboard and 
personal watercraft spark ignition engines. EPA received a request for 
a hearing from the National Marine Manufacturers Association 
(NMMA),\10\ and a hearing was held on February 28, 2005,\11\ at which 
the NMMA, several boat manufacturers, and the Manufacturers of Emission 
Controls Association (MECA) testified. In addition, EPA received 
written comments from several boat manufacturers (some of whom also 
testified at the hearing), the U.S. Coast Guard, MECA, NMMA, Senator 
Herb Kohl (D-WI), and Senator James Inhofe (R-OK), as well as a 
supplemental submission from CARB responding to matters raised at the 
public hearing.\12\
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    \8\ Letter from Catherine Witherspoon, Executive Officer, CARB 
to Administrator, EPA regarding its ``Request for Authorization to 
Enforce California's Emission Standards and Test Procedures for New 
2003 and later Spark-Ignition Inboard and Sterndrive Marine 
Engines,'' dated March 2, 2004 (``CARB IB/SD Request letter''), 
Docket Entry EPA-HQ-OAR-2004-0403-0018.
    \9\ 70 FR 2151 (January 12, 2005).
    \10\ See Letter from John McKnight, National Marine 
Manufacturers Association (NMMA), to Robert M. Doyle, USEPA, dated 
January 27, 2005, Docket Entry EPA-HQ-2004-0403-0030.
    \11\ Written statements presented at this hearing and the 
hearing transcript appear in the Docket as Docket Entries EPA-HQ-
OAR-2004-0403-0031 through EPA-HQ-OAR-2004-0403-0036.
    \12\ These comments can be found in the Docket as Docket entries 
EPA-HQ-OAR-2004-0037 through EPA-HQ-OAR-2004-0047.
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    After our review of the information submitted by CARB in its 
requests, and the information presented to the Agency at the public 
hearing and in the comments received after the hearing, EPA granted 
authorization for the CARB emission regulations for marine spark-
ignition outboard and personal watercraft (PWC) engines in their 
entirety. EPA also granted authorization for the first Tier of the CARB 
regulations covering (IB/SD) engines. For the Tier I standards (as well 
as for the outboard and personal watercraft engines), EPA determined 
that CARB had successfully shown that these standards were 
technologically feasible, and thus met the authorization criterion of 
consistency with section 202(a). Regarding the Tier II IB/SD emission 
standards, all parties who testified at the hearing and submitted 
comments after the hearing, with the exception of CARB and MECA, had 
expressed concern that CARB had not shown that the Tier II IB/SD 
standards were technologically feasible, because they believed CARB had 
not shown that catalysts needed for the marine IB/SD engines to comply 
with the CARB standards were safe and durable in saltwater operation. 
Accordingly, EPA deferred authorization of these standards until the 
conclusion of then ongoing joint testing (by CARB, EPA, the U.S. Coast 
Guard, and the industry), to evaluate the technological feasibility of 
both the CARB Tier II IB/SD standards and Federal IB/SD standards 
which, at that time, were expected to be proposed in 2007. These 
Federal standards were proposed in May 2007 and finalized in October 
2008.\13\
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    \13\ The NPRM is found at 72 FR 14546 (March 28, 2007), and the 
final regulations at 73 FR 59034 (October 8, 2008).
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    Shortly after the EPA IB/SD proposed standards were published, the 
NMMA wrote to EPA stating that ``at this stage of catalyst development, 
there is little or no additional data to be obtained by completing the 
(joint test program). * * * NMMA agrees that EPA and CARB can cancel 
the saltwater test program.'' Additionally, NMMA dropped its objection 
to the ``waiver'' of the CARB standards because ``one manufacturer is 
already in production with catalysts, and the others will be

[[Page 24874]]

ready to meet the CARB standard in 2008.'' \14\
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    \14\ Letter from John McKnight, NMMA to Robert Doyle, EPA, dated 
May 11, 2007, Docket Entry EPA-HQ-OAR-2004-0403-0042.
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II. Decision

    EPA, based on the record of this proceeding, cannot find that 
CARB's Marine Tier II IB/SD protectiveness determination was arbitrary 
and capricious, that CARB does not need its own standards to meet 
compelling and extraordinary conditions, or that the CARB standards are 
inconsistent with section 209 of the Act. Therefore, EPA grants 
authorization for CARB to enforce the second tier of its regulations 
for IB/SD engines which set a level of 5.0 g/kW-hr HC plus 
NOX and phases in beginning with 45% of manufacturers' sales 
in 2007, 75% in 2008, and 100% in 2009 and beyond. EPA has made this 
authorization decision based on the information submitted by CARB in 
its requests, and the information presented to the Agency at the public 
hearing and in the comments received after the hearing. A full 
explanation of EPA's decision, including our review of comments 
received, is contained in our Decision Document which may be obtained 
as explained above in the ADDRESSES section of this Notice.
    My decision will affect not only persons in California but also 
persons outside the State who would need to comply with California's 
Marine Tier II IB/SD regulations to produce engines for introduction 
into commerce 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 
July 5, 2011. 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 waiver and 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: April 26, 2011.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2011-10752 Filed 5-2-11; 8:45 am]
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