

[Federal Register: December 5, 2007 (Volume 72, Number 233)]
[Rules and Regulations]               
[Page 68518-68525]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de07-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 94

[EPA-HQ-OAR-2007-0120; FRL-8502-6]
RIN 2060-A026

 
Change in Deadline for Rulemaking to Address the Control of 
Emissions From New Marine Compression-Ignition Engines at or Above 30 
Liters per Cylinder

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: A February 2003 final rule established the first U.S. emission 
standards for new compression-ignition Category 3 marine engines, those 
with a per-cylinder displacement at or above 30 liters. It also 
established a deadline of April 27, 2007 for EPA to promulgate a second 
set of emission standards for these engines. This rulemaking schedule 
was intended to allow time to consider the state of technology for 
deeper emission reductions and the status of international action for 
more stringent standards. Since 2003 we have continued to gain a 
greater understanding of technical issues and assess the continuing 
efforts of manufacturers to apply advanced emission control 
technologies to these engines. In addition, we have continued to work 
with and through the International Maritime Organization toward more 
stringent emission standards that would apply to all new marine diesel 
engines on ships engaged in international transportation. Much of the 
information necessary to develop more stringent Category 3 marine 
diesel engines standards has become available only recently and we 
expect more information to come to light in the course of the current 
negotiations underway as part of the international process. EPA is 
therefore adopting a new deadline for the rulemaking to consider the 
next tier of Category 3 marine diesel engine standards. Under this new 
schedule, EPA would adopt a final rule by December 17, 2009. EPA has 
started this rulemaking process by publishing an Advance Notice of 
Proposed Rulemaking elsewhere in today's Federal Register.

DATES: This rule is effective on January 4, 2008.

ADDRESSES: All documents in the docket are listed in the 
http://www.regulations.gov index under Docket ID No. EPA-HQ-OAR-2007-0120. 

Some information listed in the index is not publicly available, such as 
confidential business information or other information for which 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the EPA Docket Center, EPA/

DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. 
The 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.

FOR FURTHER INFORMATION CONTACT: Michael Samulski, Assessment and 
Standards Division, Office of Transportation and Air Quality, 2000 
Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734) 214-
4532; fax number: (734) 214-4050; e-mail address: 
samulski.michael@epa.gov.


SUPPLEMENTARY INFORMATION:

I. Does This Action Apply to Me?

    This action will affect companies that manufacture, sell, or import 
into the United States new marine compression-ignition engines for use 
on vessels flagged or registered in the United States; companies and 
persons that make vessels that will be flagged or registered in the 
United States and that use such engines; and the owners or operators of 
such U.S. vessels. This action may also affect companies and persons 
that rebuild or maintain these engines. Affected categories and 
entities include the following:

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                   Category                      NAICS Code\a\      Examples of potentially affected entities
----------------------------------------------------------------------------------------------------------------
Industry......................................          333618  Manufacturers of new marine diesel engines.

[[Page 68519]]


Industry......................................          336611  Manufacturers of marine vessels.
Industry......................................          811310  Engine repair and maintenance.
Industry......................................             483  Water transportation, freight and passenger.
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\a\ North American Industry Classification System (NAICS).

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether particular activities may be affected by 
this action, you should carefully examine the regulations. You may 
direct questions regarding the applicability of this action as noted in 
FOR FURTHER INFORMATION CONTACT.

I. Background

    EPA published the intended change in the rulemaking schedule for 
Category 3 marine diesel engines as a direct final rule (72 FR 20948, 
April 27, 2007). We received adverse comments from six state and non-
governmental organizations. As a result, we retracted the direct final 
rule and are proceeding with the rulemaking based on the proposal that 
was published concurrent with the direct final rule. Comments received 
on the direct final rule are therefore considered to be comments on the 
concurrent proposed rule. In this action we are announcing our decision 
to change the regulatory deadline as intended and responding to those 
comments.

II. Summary of the Rule

    In this final rule we are extending the regulatory deadline for 
issuing a final rule setting more stringent standards for Category 3 
marine diesel engines to December 17, 2009. This additional time will 
allow us to better address significant remaining concerns about the 
emission control technologies and create a compliance program that 
ensures proper implementation of new standards. This approach will 
allow us to set standards that achieve the maximum emission reductions 
from these engines. We do not believe this extension will delay 
emission reductions from Category 3 marine diesel engines beyond what 
could be achieved by setting standards sooner. Instead, it creates the 
opportunity for the development and implementation of a more effective 
program for the longer term. Finally, this delay will allow us to take 
advantage of information that is being prepared for consideration by 
the International Maritime Organization as part of the ongoing 
negotiations to amend MARPOL Annex VI under the International 
Convention for the Prevention of Pollution from Ships.

III. Basis for the Rule

A. History of EPA's Category 3 Standards

    In February 2003, we adopted standards for new marine diesel 
engines with per-cylinder displacement at or above 30 liters per 
cylinder (also called Category 3 marine diesel engines; see 68 FR 9746, 
February 28, 2003). The program consisted of a two-part approach. 
First, we adopted near-term Tier 1 standards that went into effect in 
2004 and were based on readily available control technology. Those 
standards are identical to the international standards adopted at the 
International Maritime Organization in MARPOL Annex VI. Second, we 
adopted regulations that set a schedule for a future rulemaking to 
assess and adopt an appropriate second tier of standards. We explained 
that it was appropriate to defer a final decision on the longer-term 
Tier 2 standard to a future rulemaking because there were several 
outstanding technical issues concerning the widespread commercial use 
of advanced control technologies on engines of this size. We 
highlighted the following concerns in the 2003 final rule:
     Selective catalytic reduction has been widely used in 
stationary applications and there are now efforts underway to use this 
technology for marine applications. We expressed concerns that these 
systems may not be capable of working effectively during the low-speed 
and light-load operation typical of operation closest to port areas 
where emission control is most important. We also noted that this 
approach could lead to increased emissions of PM, especially direct 
sulfate PM. There was also a concern that high fuel sulfur levels could 
lead to premature wear of catalyst materials.
     Various approaches for adding water to the combustion 
event were also cited as possible approaches to reduce NOX 
emissions by 50 to 80 percent. There were concerns that adding water 
could increase engine wear with its low lubricity and increase PM 
emissions (by decreasing combustion temperatures). We also noted that 
new approaches to adding water--humidification and steam injection--
held promise for substantially greater control of NOX 
emissions.
     We raised several questions related to implementation and 
compliance provisions that would be appropriate with a new set of 
standards. For example, we need to develop an effective approach to 
address off-cycle emissions and uncertainties related to test-fuel 
specifications and PM measurement methods relative to the high sulfur 
concentrations typical of in-use fuels. We also raised the possible 
need to create a compliance program that would allow for emission 
controls to be disabled for operation on the open ocean and restored 
upon entry into some defined boundary representing U.S. coastal waters. 
These issues are complicated and need time for resolution.
    We expected new information to become available with respect to (1) 
new developments as manufacturers continue to make various improvements 
with respect to emission aftertreatment; (2) data or experience from 
recently initiated in-use installations using advanced technologies; 
and (3) information from longer-term in-use experience that would be 
helpful for evaluating the long-term durability of emission controls.
    The revision of the deadline for Tier 2 of the standards for new 
Category 3 marine diesel engine standards is permitted by the Clean Air 
Act. Clean Air Act section 213(a)(3) requires EPA to adopt and 
periodically revise regulations that contain standards concerning 
certain pollutants reflecting the greatest degree of emission 
reductions achievable through the application of technology that will 
be available, taking into consideration the availability and costs of 
the technology, and noise, energy, safety factors and existing motor 
vehicle standards. EPA's strategy toward achieving the maximum level of 
emission control from Category 3 marine diesel engines is consistent 
with those statutory requirements. See Bluewater Network v. EPA, 372 F. 
3d 404 D.C. Cir. (2004).

B. Need for Revised Schedule

    Deferring the Tier 2 standards to a second rulemaking has allowed 
us to obtain more information on the implementation of advanced 
technologies. Toward that end, we are publishing an Advance Notice of 
Proposed Rulemaking elsewhere in

[[Page 68520]]

today's Federal Register in which we describe the new information and 
our current thinking with regard to potential new requirements for 
Category 3 marine diesel engines. This new information comes from field 
experiences related to the continuing pilot projects to test new 
technologies, several recently published technical papers, and ongoing 
negotiations in the context of developing MARPOL Annex VI standards. 
This includes a better understanding of the capabilities and 
constraints associated with selective catalytic reduction, the 
potential for seawater scrubbers to control PM emissions, and the 
possibility of relying on the use of distillate fuel as a part of the 
overall approach to reducing emissions. For example, it appears that 
selective catalytic reduction can be quite tolerant of high fuel sulfur 
levels, but reactors would need to be physically larger to avoid 
sulfur-related problems. Also, pairing selective catalytic reduction 
with oxidation catalysts allows for reactivity at substantially lower 
exhaust temperatures. This would help to address the concern for 
controlling emission at light engine loads.
    As we prepare a proposed rule to set standards based on advanced 
emission control technologies, we intend to resolve remaining questions 
for crafting a complete set of requirements. This will include 
consideration of testing requirements that reflect the need for engines 
using selective catalytic reduction to control emissions at light 
engine loads typical of operation in port areas. We will also consider 
whether further technological developments with selective catalytic 
reduction and water-based technologies will allow us to pursue PM 
emission standards more stringent than we are currently contemplating.
    Control of PM and SOX emissions depends on a combination 
of using distillate fuel and adding seawater scrubbers for removing 
emissions from engines that burn residual fuel. EPA will be separately 
pursuing the appropriate designations under MARPOL Annex VI such that 
all vessels would need to either use distillate fuel or achieve an 
equivalent level of emission control with seawater scrubbers. We intend 
to address certification requirements for seawater scrubbers in the 
rulemaking proposal for setting emission standards for Category 3 
marine diesel engines. In addition, the proposal will address remaining 
questions for applying such standards to the current fleet in addition 
to new vessels, and for disposing of emissions removed from the exhaust 
gases, including the possible negative impacts on water quality for 
discharged wastewater.
    The proposed rule will also rely on development and use of new 
analytic tools to assess the costs and benefits of alternative emission 
control strategies, especially related to at-sea emissions and how they 
are transported to shore.
    Additional time will also allow us to take advantage of the ongoing 
negotiations for amendments to MARPOL Annex VI. When we finalized our 
Tier 1 standards in 2003, we anticipated that negotiations for the next 
round of international standards would begin shortly thereafter. Due to 
many delays, Members of the Convention did not agree to begin 
negotiations until July 2006, and the first round of negotiations did 
not occur until November 2006. These negotiations are expected to 
conclude in October 2008. These negotiations provide a key forum for 
sharing information on the performance of current installations. In 
addition, the IMO Secretary General has commissioned an experts group 
to examine control alternatives for PM and SOX emissions; 
this information will also be important for developing the national 
standards. EPA is involved in these negotiations as a member of the 
U.S. delegation to IMO.
    All these rulemaking issues are described in more detail in the 
Advance Notice of Proposed Rulemaking published elsewhere in today's 
Federal Register. This Advance Notice initiates the rulemaking process 
for adopting a more stringent set of standards for Category 3 marine 
diesel engines.

C. New Schedule

    EPA remains committed to developing and proposing Tier 2 emission 
standards for Category 3 marine diesel engines. Advanced technology 
solutions are available or under development for these engines. 
However, it is necessary to resolve the questions described above 
before we are ready to propose a program with appropriate Tier 2 
emission standards for these engines.
    Our commitment to Tier 2 standards is evidenced by our position at 
the IMO and in the Advance Notice of Proposed Rulemaking. Specifically, 
as part of the process for setting new emission standards under IMO, 
the United States submitted a paper to the April 2007 BLG Sub-Committee 
meeting (called BLG-11) setting out an approach for substantially 
reducing emissions from marine diesel engines.\1\ If adopted, these 
standards could achieve significant reductions in NOX, 
particulate matter (PM), and oxides of sulfur (SOX) 
emissions from marine vessels.\2\ This framework formed the basis of 
the approach we are currently pursuing for an EPA rulemaking under the 
Clean Air Act to establish Tier 2 standards for Category 3 marine 
diesel engines, as described in the Advance Notice of Proposed 
Rulemaking. We expect the information we receive during this 
international process and as comments on the Advance Notice to provide 
very useful information in addressing our remaining concerns.
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    \1\ ``Revision of the MARPOL Annex VI, the NOX 
Technical Code and Related Guidelines; Development of Standards for 
NOX, PM, and SOX,'' subitted by the United 
States, BLG 11/5, Sub-Committee on Bulk Liquids and Gases, 11th 
Session, Agenda Item 5, February 9, 2007, Docket ID EPA-HQ-OAR-2007-
0121-0034. This document is also available on our Web site: http://www.epa.gov/otaq/oceanvessels.com
.

    \2\ ``Revision of MARPOL Annex VI, the NOX, PM, and 
SOX,'' Submitted by the United States to the Sub-
Committee on Bulk Liquids and Gases, 11th Session, 2007.
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    We do not believe this extension will delay emission reductions 
from Category 3 marine diesel engines beyond what could be achieved by 
setting standards sooner. If we would adopt emission standards earlier, 
we would need to allow several years of lead time to give manufacturers 
opportunity to work out remaining technological issues in designing 
engines with advanced emission control technologies for all sizes and 
types of vessels. Manufacturers have continued to make progress in 
developing these technologies in the meantime, which will help us 
tailor requirements to what emission reductions are achievable and 
should allow us to adopt a program with shorter lead time relative to 
the final rule setting these emission standards. Any foregone emission 
reductions from delaying the implementation of emission standards would 
likely be offset by our ability to set more stringent standards based 
on the additional information that is available by setting standards at 
the later date.
    In sum, the delay in issuing the final rule for more stringent 
emission standards for Category 3 marine diesel engines is reasonable 
given the need to address certain technical issues and collect further 
information. We believe there will be no significant foregone emission 
reductions resulting from the delayed rulemaking schedule. In contrast, 
the additional time allows the opportunity to develop and implement a 
more effective program for the longer term.
    In recognition of the current situation, we are taking this action 
to establish a new rulemaking deadline that will

[[Page 68521]]

facilitate our ability to adopt emission standards consistent with the 
statutory directive, while advocating adoption of the same controls as 
part of the international process. In this action we are adopting a new 
deadline of December 17, 2009 for a final rule that will address 
additional emission standards for Category 3 marine diesel engines as 
appropriate under section 213(a)(3) of the Clean Air Act.

IV. Summary and Analysis of Comments

A. Summary of Comments

    Commenters pointed out that Category 3 marine diesel engines are 
significant and growing contributors to air pollution in the United 
States. This included reference to various EPA estimates and was 
supplemented by several estimates for specific areas. Several 
commenters pointed out the acute need for reduced emissions from these 
engines in California, particularly in the South Coast Air Basin. For 
example, over half of current or projected levels of SOx and 
diesel PM emissions in the South Coast Air Basin are estimated to come 
from marine vessels (or all port-related sources). SOx 
emissions from marine vessels in particular would need to be reduced by 
about 90 percent in the next few years for the South Coast Air Basin to 
reach timely attainment of the air quality standard for 
PM2.5. The South Coast Basin is also home to the Ports of 
Los Angeles and Long Beach, which are claimed to be the entry point for 
40 percent of the nation's goods, with cargo throughput projected to 
triple by 2025. Santa Barbara County, California was noted as another 
particular concern, where 75 percent of local NOX emissions 
are projected to come from marine vessels, even though there are no 
commercial ports within county boundaries. One commenter referenced a 
finding that 70 percent of global shipping emissions occur within 400 
kilometers of shore, where pollution transport may range from 400 to 
1200 kilometers inland.
    Commenters emphasized that the emissions from Category 3 marine 
diesel engines contribute to serious public health and environmental 
problems. Commenters cited the EPA finding that diesel exhaust is a 
likely human carcinogen. Diesel particulate matter, ozone, 
SOx, and air toxic emissions were identified as substantial 
causes of environmental degradation, illness, and/or death. Commenters 
noted that emissions from marine diesel engines also raise concerns for 
environmental justice, since the pollution effects fall 
disproportionately on the relatively low-income residential areas 
surrounding ports and transportation corridors.
    Commenters cited Clean Air Act section 213 and EPA's 1994 and 1998 
findings to establish the significance of emissions from nonroad 
engines in general and Category 3 marine diesel engines specifically as 
demonstration that EPA had a mandatory duty to set technology-forcing 
emission standards for these engines. Commenters further maintained 
that missing the regulatory deadline violated EPA's repeated statements 
committing to take final action on the schedule reflected in the 
regulation. Commenters noted that in similar circumstances the District 
Court of the District of Columbia compelled EPA to take a final action 
based on a regulatory deadline EPA had earlier adopted as part of the 
effort to address hazardous air pollutants from motor vehicles. 
Commenters further reasoned that the court decision upholding the 
sufficiency of the Tier 1 standards adopted in February 2003 depended 
on EPA's commitment to adopt more stringent emission standards for 
these engines by the established deadline.
    Commenters claimed that delaying implementation of emission 
standards based on the need for more time to evaluate potential 
emission controls is without merit and outside the scope of EPA's 
rulemaking authority. Rather, commenters view Clean Air Act section 213 
as requiring EPA to establish technology-forcing standards based on 
projected future advances in pollution control capabilities. Commenters 
further argue that the necessary advances for low-emission technologies 
for these engines have already occurred and these technologies are 
widely used in commercial applications today, and that EPA has provided 
no reasoned basis describing why the originally adopted schedule was 
not sufficient to address any remaining technical concerns related to 
emission control technologies. For example, commenters cited EPA's 
report of more than 300 marine engines operating worldwide with 
selective catalytic reduction, including oceangoing vessels. Some 
commenters also disagreed with the logic of EPA's argument that setting 
intermediate-stringency standards would prevent more effective long-
term standards, noting Congress's intent for periodic review and update 
of nonroad emission standards to reflect the evolutionary nature of 
emission control technology. Commenters also pointed out that more 
stringent emission controls are urgently needed, given the large number 
of ships expected to be built over the coming years and the difficulty 
of retrofitting vessels to reduce emissions.
    Commenters also posit that it is impermissible and inappropriate 
for EPA to allow international negotiations to nullify its obligations 
under the Clean Air Act. Commenters point out that Clean Air Act 
section 213 does not allow for foreign-policy considerations to serve 
as the basis for determining whether or how to set emission standards 
for nonroad engines, and that the Supreme Court recently reinforced 
this principle in the decision related to greenhouse gas emissions. 
This was presented as an inappropriate means of shifting power from the 
Congress to the Executive Branch. Commenters further maintain that EPA 
has failed to explain how emission standards adopted for the United 
States under the Clean Air Act would hamper international negotiations 
(or how the specific and feasible standards EPA has recommended for 
consideration at IMO lack information needed for pursuing standards 
under U.S. law). They emphasized other examples of international 
agreements that followed implementation of domestic regulations in the 
United States, and argued that the delays in adoption of international 
standards for marine diesel engines were in fact a basis for EPA to 
pursue separate requirements. Aside from a general skepticism that the 
IMO process would lead to meaningful emission reductions from these 
engines, commenters promoted the contrary view that rigorous U.S. 
emission standards would provide the political and technical foundation 
for international action regarding Category 3 marine diesel engines, 
and that EPA has missed out on an opportunity to demonstrate to the IMO 
that the United States is serious about reducing emissions from large 
marine vessels and will act unilaterally if the IMO does not. 
Commenters recommended that EPA pursue emission standards based on the 
recent U.S. proposal for consideration under the IMO process.
    Commenters noted that the decision to delay the deadline for 
setting new emission standards also postpones EPA's promised decision 
regarding the authority to apply U.S. emission standards to engines on 
foreign-flagged vessels. Commenters also made the following arguments 
to emphasize that EPA should decide affirmatively to apply emission 
standards to engines on foreign-flagged vessels:
     Clean Air Act section 213 requires EPA to set emission 
standards for all classes of nonroad engines that contribute to air 
pollution in the United

[[Page 68522]]

States, without distinguishing between domestic and foreign engines.
     EPA has repeatedly acknowledged that foreign-flagged 
vessels account for the clear majority of emissions from Category 3 
marine diesel engines.
     Court decisions have established that foreign-flagged 
vessels in U.S. ports and water are subject to U.S. regulations other 
than those pertaining to a ship's ``internal management and affairs.''
     International law explicitly protects the right of the 
U.S. to regulate foreign-flagged ships in U.S. ports and waters.
     As described above for emission standards, the court 
upheld EPA's refusal to decide whether to regulate foreign flagged 
vessels on the basis that EPA promised to address the issue in its 2007 
rulemaking.
    Commenters concluded by emphasizing their interest in seeing EPA 
establish and commit to a firm and timely deadline to develop and 
implement stringent emission standards for Category 3 marine diesel 
engines, with rulemaking and implementation schedules expedited as much 
as possible to address EPA's legal obligations and the compelling air 
quality needs associated with these standards.

B. Analysis of Comments

    We are mindful of the extent to which Category 3 marine diesel 
engines contribute to air pollution in coastal and inland areas of the 
United States. We do not disagree with the general characterization of 
the emission contribution or health and environmental impacts described 
by commenters.
    However, we believe that amending the regulatory deadline to allow 
more time to address several remaining technical issues and collect 
some additional information is reasonable and consistent with our 
authority under the statute. The February 2003 final rule fulfilled our 
statutory obligation under Clean Air Act section 213 to set standards 
for Category 3 marine diesel engines. In Bluewater Network v. EPA, 372 
F. 3d 404 D.C. Cir. (2004), the Court upheld EPA's rulemaking as having 
met the statutory requirement to establish standards that achieve the 
greatest degree of emission reduction. As a result, we disagree with 
the comments suggesting that we have failed to meet our mandatory 
statutory duty to set initial emission standards.
    We have an additional obligation to periodically revise the 
emission standards to ensure that they reflect the greatest degree of 
emission control considering various statutory factors. We set a 
schedule for producing a new rulemaking to adopt these more stringent 
emission standards by April 2007 but have found that this did not allow 
sufficient time for completion, as described above. The delay 
rulemaking schedule we are adopting in this notice is reasonable in 
light of these issues and is consistent with Congress' intent that EPA 
consider the availability of technologies that can achieve the desired 
reductions, as well as the necessary lead time, cost, noise, energy and 
safety issues with adopting such standards.
    As part of the process for setting new emission standards under 
IMO, the United States submitted a paper to the April 2007 BLG Sub-
Committee meeting (called BLG-11) setting out an approach for 
substantially reducing emissions from marine diesel engines.\3\ In 
parallel with this development toward a new set of international 
standards, we are initiating a rulemaking under the Clean Air Act to 
adopt these standards for the United States by publishing an Advance 
Notice of Proposed Rulemaking elsewhere in today's Federal Register.
---------------------------------------------------------------------------

    \3\ ``Revision of the MARPOL Annex VI, the NOX 
Technical Code and Related Guidelines; Development of Standards for 
NOX, PM, and SOX,'' submitted by the United 
States, BLG 11/5, Sub-Committee on Bulk Liquids and Gases, 11th 
Session, Agenda Item 5, February 9, 2007, Docket ID EPA-HQ-OAR-2007-
0121-0034. This document is also available on our Web site: http://www.epa.gov/otaq/oceanvessels.com
.

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    We believe there has been great progress toward establishing the 
feasibility of controlling NOX, SOX, and PM 
emissions from these engines. Laboratory and in-field pilot 
demonstrations have significantly advanced the development of emission 
control technologies and allowed for relatively near-term projections 
for deploying these technologies in commercial service. These 
developments have allowed us to advocate specific emission targets as 
participating members of IMO in the effort to adopt more stringent 
emission standards. These targets are also the basis of our Advance 
Notice of Proposed Rulemaking. As described in the Advance Notice, we 
are still concluding resolution of the technological issues described 
above. We also expect to receive information through the international 
process and as comment on the Advance Notice of Proposed Rulemaking to 
help us address these remaining concerns.
    While we are supporting the efforts in an international forum to 
set global emission standards, we are not deferring to that process in 
pursuing emission standards under the Clean Air Act. By initiating our 
own rulemaking to set new emission standards, we are pursuing an 
approach in which harmonized U.S. and global standards would be 
developed in parallel. While we are mindful of the timing of the 
international process and the state of these negotiations, the reasons 
described above for taking additional time to adopt a new round of 
emission standards hinge on the factors specified by Congress for 
considering the timing for implementing new emission standards, 
especially for the feasibility, lead time, and costs associated with 
new emission controls.
    Regarding the question of applying emission standards to foreign-
flagged vessels, we understand the positions expressed by commenters, 
as well as the contrary views expressed by commenters in previous 
rulemaking activity, and will be taking these concerns into account as 
we pursue a decision on this issue, which we will describe with 
supporting rationale in the proposal for setting emission standards for 
these engines.
    The Advance Notice of Proposed Rulemaking is the next step toward 
developing more stringent emission standards for Category 3 marine 
diesel engines under the Clean Air Act. We intend to pursue these 
aggressive emission reductions, both in the EPA rulemaking and in the 
international process. The revised regulatory deadline included in this 
final rule indeed reflects a delay from the original April 2007 target, 
but we believe the revised schedule will allow for a thorough 
consideration of a wide range of important issues that need to be 
addressed before we can adopt an appropriate set of requirements for 
these engines. We continue to believe that pursuing resolution of these 
issues in an EPA rulemaking in parallel with the ongoing international 
negotiations will be the best path to leverage the most effective 
program for reducing the emissions impact from Category 3 marine diesel 
engines on U.S. air quality.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under section (3)(f)(1) Executive Order 12866 (58 FR 51735, October 
4, 1993), the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to review by the Office of 
Management and Budget (OMB) and the requirements of this Executive 
Order. This final rule has been sent to OMB for review under Executive 
Order 12866 and any changes

[[Page 68523]]

made in response to OMB recommendations have been documented in the 
docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This final rule merely changes the regulatory schedule for a rulemaking 
to address emissions from Category 3 marine diesel engines. However, 
the Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing 
regulations in 40 CFR part 94 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2060-0287, EPA ICR number 1684.10. A copy of the approved 
Information Collection Request (ICR) may be obtained from Susan Auby, 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by 
calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this final rule on small 
entities, a small entity is defined as: (1) A small business that meets 
the definition for business based on SBA size standards at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This final rule merely changes the regulatory schedule for a 
rulemaking to address emissions from Category 3 marine engines. We have 
therefore concluded that this final rule will relieve regulatory burden 
for all affected small businesses.

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, EPA 
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 in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and to 
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 EPA to adopt an alternative other 
than the least costly, most cost-effective, or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation of why such an alternative was adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    This rule contains no Federal mandates for State, local, or tribal 
governments, or the private sector as defined by the provisions of 
Title II of the UMRA. The rule imposes no enforceable duties on any of 
these governmental entities. This rule contains no regulatory 
requirements that would significantly or uniquely affect small 
governments. EPA has determined that this rule contains no Federal 
mandates that may result in expenditures of more than $100 million to 
the private sector in any single year. This final rule merely changes 
the regulatory schedule for a rulemaking to address emissions from 
Category 3 marine engines. This rule is not subject to the requirements 
of sections 202 and 205 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are 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, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute,

[[Page 68524]]

unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the regulation. EPA 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 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, EPA 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 final rule merely changes the 
regulatory schedule for a rulemaking to address emissions from Category 
3 marine diesel engines. Thus, Executive Order 1312 does 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.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This rule does not uniquely affect the communities of Indian Tribal 
Governments. Further, no circumstances specific to such communities 
exist that would cause an impact on these communities beyond those 
discussed in the other sections of this rule. This final rule merely 
changes the regulatory schedule for a rulemaking to address emissions 
from Category 3 marine engines. 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 EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, Section 5-501 of the Order directs the Agency 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 the Agency.
    This rule is not subject to the Executive Order because it is not 
economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This final rule merely changes the 
regulatory schedule for a rulemaking to address emissions from Category 
3 marine diesel engines.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution or use of energy. This final 
rule merely changes the regulatory schedule for a rulemaking to address 
emissions from Category 3 marine engines.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless doing so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (such as materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by voluntary consensus standards bodies. NTTAA 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards.
    This final rule does not involve technical standards. This final 
rule merely changes the regulatory schedule for a rulemaking to address 
emissions from Category 3 marine engines. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because it does not affect the level of 
protection provided to human health or the environment. This final rule 
merely changes the regulatory schedule for a rulemaking to address 
emissions from Category 3 marine diesel engines.

[[Page 68525]]

K. 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 before 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 final rule is 
effective on January 4, 2008.

L. Statutory Authority

    The statutory authority for this action comes from section 213 of 
the Clean Air Act as amended (42 U.S.C. 7547). This action is a 
rulemaking subject to the provisions of Clean Air Act section 307(d). 
See 42 U.S.C. 7607(d).

List of Subjects in 40 CFR Part 94

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Confidential business information, Imports, 
Penalties, Reporting and recordkeeping requirements, Vessels, 
Warranties.

    Dated: November 29, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 94--CONTROL OF AIR POLLUTION FROM MARINE COMPRESSION--IGNITION 
EMISSIONS

0
1. The authority citation for part 94 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

0
2. Section 94.8 is amended by revising paragraph (a)(2)(ii) to read as 
follows:


Sec.  94.8  Exhaust emission standards.

    (a) * * *
    (2) * * *
    (ii) EPA has not finalized Tier 2 standards for Category 3 engines. 
EPA will promulgate final Tier 2 standards for Category 3 engines on or 
before December 17, 2009.
* * * * *
[FR Doc. E7-23557 Filed 12-4-07; 8:45 am]

BILLING CODE 6560-50-P
