

[Federal Register: December 15, 2006 (Volume 71, Number 241)]
[Notices]               
[Page 75536-75538]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de06-71]                         

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8257-2]

 
California State Nonroad Engine and Vehicle Pollution Control 
Standards; Decision of the Administrator

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice regarding authorization of California small off-road 
engine emission standards.

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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 an 
authorization of its small off-road engine emission standards for 2007 
and subsequent model years (SORE). By letter dated April 11, 2005, the 
California Air Resources Board (CARB) requested that EPA grant 
California an authorization (sometimes referred to as a waiver of 
federal preemption) for its SORE regulations which set forth amended 
exhaust emission standards and new evaporative emission standards and 
associated test procedures for Class I and Class II small off-road 
engines for 2007 and subsequent model years.

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 at EPA's Air and Radiation Docket and Information Center 
(Air Docket). Materials relevant to this decision are contained in 
Docket No. EPA-HQ-OAR-2005-0133. The docket is located at The Air 
Docket, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460, 
and may be viewed between 8 a.m. and 5:30 p.m., Monday through Friday. 
The telephone is (202) 566-1742. A reasonable fee may be charged by EPA 
for copying docket material.
    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 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-2004-0133 
to view documents in the record of the SORE authorization request. 
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.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and 
Innovative Strategies Division, U.S. Environmental Protection Agency, 
Ariel Rios Building (6405J), 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460. Telephone: (202) 343-09256. E-Mail Address: 
Dickinson.David@EPA.GOV.


SUPPLEMENTARY INFORMATION: I have decided to grant California an 
authorization pursuant to section 209(e) of the Act for the SORE 
regulations.\1\ As explained in the Decision Document supporting 
today's decision, I have decided to grant a full authorization for all 
of the SORE regulation despite CARB's request that some portions be 
considered within the scope of previous authorization determinations. 
As also explained in the Decision Document, EPA received a series of 
comments supporting CARB's request for an authorization and received 
comments from one commenter that conditionally supported the 
authorization and raised other concerns but did not represent that such 
other concerns should be the basis for denying or delaying the 
authorization. For the reasons set forth below and further discussed in 
the Decision Document, EPA is granting CARB's request for authorization 
for its SORE regulations.
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    \1\ The CARB Board approved the SORE regulations by Resolution 
03-24.
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    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

[[Page 75537]]

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. The regulations found at 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 ``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.\2\ 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.
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    \2\ See 59 FR 36969, 36983 (July 20, 1994).
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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 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 
requirements.
    Congress further directed EPA to ``give appropriate consideration 
to safety factors (including the potential increased risk of burn or 
fire) associated with compliance with the California standard'' when 
considering any request from California to authorize the state to adopt 
or enforce standards or other requirements relating to the control of 
emission from new non-road spark-ignition engines smaller than 50 
horsepower.\3\
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    \3\ See Fiscal Year 2004 Omnibus Appropriations Act (Pub. L. 
108-109 division G section 428).
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    CARB determined that its SORE standards do not cause California's 
standards, in the aggregate, to be less protective of public health and 
welfare than the applicable Federal standards. No information has been 
submitted to demonstrate that California's standards, in the aggregate, 
to be less protective than the applicable Federal standards. Thus, EPA 
cannot make a finding that CARB's determination that its SORE standards 
are, in the aggregate, at least as protective of public health and 
welfare as applicable Federal standards to be arbitrary and capricious.
    CARB has continually demonstrated the existence of compelling and 
extraordinary conditions justifying the need for its nonroad pollution 
control program, which includes the SORE regulations. No information 
has been submitted to demonstrate that California no longer has a 
compelling and extraordinary need for its own program. Therefore, I 
agree that California continues to have compelling and extraordinary 
conditions, thus I cannot deny the authorization on the basis of the 
lack of compelling and extraordinary conditions.
    CARB has determined that its SORE regulations are not inconsistent 
with section 209(a)--they do not regulate new motor vehicles or new 
motor vehicle engines. No information has been submitted opposing this 
determination. Therefore, I agree that California's SORE regulations 
are consistent with section 209(a).
    CARB has determined that its SORE regulations are not inconsistent 
with section 209(e)(1)--they do not regulate new engines which are used 
in construction equipment or vehicles or used in farm equipment or 
vehicles which are smaller than 175 horsepower. No information has been 
submitted opposing this determination. As explained in the Decision 
Document, pressure washers are included in CARB's SORE regulation and 
are found not to be inconsistent with section 209(e)(1).
    CARB has determined that its SORE regulations are not inconsistent 
with section 209(b)(1)(C) as EPA has implemented that subsection in the 
context of motor vehicles. CARB has determined that it has provided 
adequate lead time to permit the development of the necessary 
technology giving appropriate consideration to the cost of compliance 
within that time period. Comment was received stating that ``phase-in 
flexibility'' was required by equipment manufacturers in order to 
successfully transition into model years where new emission standards 
apply. As explained in the Decision Document EPA believes that 
California has adequately addressed this concern. No information was 
submitted to suggest that CARB's certification requirements, including 
test procedures, are inconsistent with applicable federal certification 
requirements. Therefore I cannot find that CARB's SORE regulations are 
inconsistent with section 202(a).
    As explained in the Decision Document, EPA has considered safety 
factors, including the potential increased risk of burn or fire, both 
in the context of satisfying the statutory criteria of section 209(e) 
and in the context of the language in the 2004 Omnibus Appropriation 
Act. In either context, EPA finds that issues of safety risks have been 
adequately addressed by California and safety factors do not prevent 
EPA from authorizing California's regulations.
    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 the SORE 
regulations.
    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

[[Page 75538]]

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 
February 13, 2007. 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.
    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: December 11, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
 [FR Doc. E6-21378 Filed 12-14-06; 8:45 am]

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