California State Nonroad Engine Pollution Control Standards; Large Spark-Ignition Engines Fleets Regulation; Request for Authorization; Opportunity for Public Hearing and Comment

Karl Simon
Environmental Protection Agency
16 August 2021

[Federal Register Volume 86, Number 155 (Monday, August 16, 2021)]
[Notices]
[Pages 45724-45726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17497]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2021-0327; FRL-8869-01-OAR]


California State Nonroad Engine Pollution Control Standards; 
Large Spark-Ignition Engines Fleets Regulation; Request for 
Authorization; Opportunity for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted amendments to its large spark-ignition engines 
fleets regulation (LSI amendments). By letter dated March 15, 2021, 
CARB asked that EPA issue a full authorization for the accompanying 
enforcement provisions contained in their LSI amendments adopted in 
2016. This notice announces that EPA has tentatively scheduled a public 
hearing to consider California's authorization request for the LSI 
amendments, and that EPA is now accepting written comment on the 
request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on September 9, 2021, at 10 a.m. ET. EPA will hold a hearing 
only if any party notifies EPA by September 1, 2021, to express 
interest in presenting the agency with oral testimony at a virtual 
public hearing. Parties that wish to present oral testimony at a 
virtual public hearing should provide written notice to David Dickinson 
at the email address noted below. If EPA receives a request for a 
public hearing, an announcement of the virtual public hearing along 
with instructions to testify or attend the hearing will be posted at: 
https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations. If EPA does not receive a 
request for a public hearing, then EPA will not hold a hearing, and 
instead will consider CARB's request based on written submissions to 
the docket. Any party may submit written comments until October 12, 
2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2021-0327, by one of the following methods:
     Online at http://www.regulations.gov: Follow the Online 
Instructions for Submitting Comments.
     Email: a-and-r-docket@epa.gov.
     Fax: (202) 566-9744.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2021-0327, U.S. Environmental Protection Agency, Mail code: 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.

[[Page 45725]]

    Instructions: All submissions received must include the Docket ID 
No. for this action. Comments received may be posted without change to 
https://www.regulations.gov, including any personal information 
provided. For the full EPA public comment policy, information about CBI 
or multimedia submissions, and general guidance on making effective 
comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
    Out of an abundance of caution for members of the public and our 
staff, the EPA Docket Center and Reading Room are closed to the public, 
with limited exceptions, to reduce the risk of transmitting COVID-19. 
Our Docket Center staff will continue to provide remote customer 
service via email, phone, and webform. We encourage the public to 
submit comments via https://www.regulations.gov or email, as there may 
be a delay in processing mail and faxes. Hand deliveries and couriers 
may be received by scheduled appointment only. For further information 
on EPA Docket Center services and the current status, please visit us 
online at https://www.epa.gov/dockets. EPA continues to monitor 
information carefully and continuously from the Centers for Disease 
Control and Prevention (CDC), local area health departments, and our 
Federal partners so that we can respond rapidly as conditions change 
regarding COVID-19.
    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 
prior waiver and authorization Federal Register notices. The page can 
be accessed at https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney-Advisor, 
Transportation Climate Division, Office of Transportation and Air 
Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue 
(6405A) NW, Washington, DC 20460. Telephone: (202) 343-9256. Fax: (202) 
343-2804. Email: Dickinson.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. California's LSI Regulations

    CARB promulgated its first LSI regulations, applicable to new LSI 
engines, in 1999 and they remained unchanged until the 2008 
amendments.\1\ EPA authorized the LSI regulations, on May 15, 2006.\2\ 
CARB adopted its initial off-road LSI fleet operator regulations on May 
25, 2006 (Fleet Operator Regulations).\3\ The Fleet Operator 
Regulations are designed to address the hydrocarbon (HC) and nitrogen 
oxide (NOX) emissions from existing LSI engines operating in 
California and require fleets to meet certain fleet average emission 
level (FAEL) standards.
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    \1\ Title 13, California Code of Regulations, sections 2430-
2439.
    \2\ 71 FR 29623 (May 15, 2006).
    \3\ EPA granted an authorization for these regulations at 77 FR 
20388 (April 4, 2012).
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    CARB adopted its 2008 LSI amendments on November 21, 2008. The 2008 
LSI amendments created two new engine categories below one-liter 
displacement, with new more stringent exhaust and evaporative emission 
standards applicable to new engines. These amendments also provided 
clarification as to when CARB's off-road sport or utility regulations 
apply to certain LSI engines. CARB adopted its 2010 LSI amendments on 
December 17, 2010. These amendments were designed to provide compliance 
flexibility which will allow operators to reduce their compliance costs 
while retaining the emission benefits associated with the original 
regulations.\4\
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    \4\ EPA granted a full authorization for the 2008 amendments and 
a within-the-scope confirmation for the 2010 amendments at 80 FR. 
76468 (Dec. 9, 2015).
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    At its July 21, 2016 public hearing, the Board approved for 
adoption the 2016 LSI Fleet Amendments.\5\ CARB's Executive Officer 
formally adopted the 2016 LSI Fleet Amendments on May 5 2017, and 
became operative under state law by the approval of California's Office 
of Administrative Law on June 20, 2017.\6\ By letter dated March 15, 
2021, CARB submitted a request to EPA for an authorization to enforce 
the 2016 LSI Fleet Amendments and CARB asks that EPA consider its 
amendments as accompanying enforcement procedures for standards that 
have already been authorized by EPA in a prior decision as noted 
above.\7\ The 2016 LSI Fleet Amendments include reporting requirements 
(e.g., initial and annual reports, equipment transfer and sales 
reports, and an extension of existing reporting requirements for fleet 
operators subject to fleet average emission limits). The 2016 LSI Fleet 
Amendments also include new labeling requirements wherein, based on 
operator provided information, CARB will issue the operators a unique 
EIN for each item of equipment reported and become the basis of a 
manufacturer's equipment labels with a number of associated 
requirements.
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    \5\ See CARB Resolution 06-10 at EPA-HQ-OAR-2021-0327.
    \6\ See Executive Order R-17-002 at EPA-HQ-OAR-2021-0327.
    \7\ See EPA-HQ-OAR-2021-0327.
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II. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the CAA prohibits states and local governments 
from adopting or attempting to enforce any standard or requirement 
relating to the control of emissions from certain new nonroad vehicles 
or engines. The Act also preempts states from adopting and enforcing 
standards and other requirements related to the control of emissions 
from non-new nonroad engines or vehicles.\8\ Section 209(e)(2), 
however, requires the Administrator, after notice and opportunity for 
public hearing, to authorize California to adopt and enforce standards 
and other requirements relating to the control of emissions from such 
vehicles or engines not preempted by section 209(e)(1) if California 
determines that California standards will be, in the aggregate, at 
least as protective of public health and welfare as applicable Federal 
standards. However, EPA shall not grant such authorization if it 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 [CAA 
section 209]. In addition, other states with air quality attainment 
plans may adopt and enforce such regulations if the standards, and 
implementation and enforcement procedures, are identical to 
California's standards.
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    \8\ See 40 CFR 1074.10.
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    On July 20, 1994, EPA promulgated a rule that sets forth, among 
other things, regulations providing the criteria, as found in section 
209(e)(2), which EPA must consider before granting any California 
authorization request for new nonroad engine or vehicle emission 
standards.\9\ EPA revised these regulations in 1997.\10\ As stated in 
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[[Page 45726]]

preamble to the 1994 rule, EPA has historically interpreted the section 
209(e)(2)(iii) ``consistency'' inquiry to require, at minimum, that 
California standards and enforcement procedures 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 section 209(b) motor 
vehicle waivers).\11\
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    \9\ 59 FR 36969 (July 20, 1994).
    \10\ 62 FR 67733 (December 30, 1997). The applicable 
regulations, now in 40 CFR part 1074, subpart B, Sec.  1074.105, 
provide:
    (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 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 is arbitrary and capricious.
    (2) California does not need such standards to meet compelling 
and extraordinary conditions.
    (3) The California standards and accompanying enforcement 
procedures are not consistent with section 209 of the Act.
    (c) In considering any request to authorize California to adopt 
or enforce standards or other requirements relating to the control 
of emissions from new nonroad spark-ignition engines smaller than 50 
horsepower, the Administrator will give appropriate consideration to 
safety factors (including the potential increased risk of burn or 
fire) associated with compliance with the California standard.
    \11\ 59 FR 36969 (July 20, 1994).
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    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. To be consistent with section 
209(e)(1), California's nonroad standards and enforcement procedures 
must not attempt to regulate engine categories that are permanently 
preempted from state regulation. To determine consistency with section 
209(b)(1)(C), EPA typically reviews nonroad authorization requests 
under the same ``consistency'' criteria that are applied to motor 
vehicle waiver requests. Pursuant to 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 and authorizations have noted that 
state standards and enforcement procedures are inconsistent with 
section 202(a) if: (1) There is inadequate lead time to permit the 
development of the necessary technology giving appropriate 
consideration to the cost of compliance within that time, or (2) the 
federal and state testing procedures impose inconsistent certification 
requirements.\12\
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    \12\ Id. See also 78 FR 58090, 58092 (September 20, 2013).
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    When considering whether to grant authorizations for accompanying 
enforcement procedures tied to standards (such as record keeping and 
labeling requirements) for which an authorization has already been 
granted, EPA has evaluated (1) whether the enforcement procedures are 
so lax that they threaten the validity of California's determination 
that its standards are as protective of public health and welfare as 
applicable federal standards, and (2) whether the federal and 
California enforcement procedures are consistent.\13\
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    \13\ See Motor and Equipment Manufacturers Association v 
Environmental Protection Agency, 627 F.2d 1095 (D.C. Cir. 1979).
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III. EPA's Request for Comments

    As stated above, EPA is offering the opportunity for a public 
hearing, and is requesting written comment on issues relevant to EPA's 
consideration of the accompanying enforcement procedures established 
within the 2016 LSI Fleet Amendments. Specifically, we request comment 
on whether California's 2016 LSI Fleet Amendments: (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 209 of the Act; or (c) raise any 
other new issues affecting EPA's previous waiver or authorization 
determinations.

IV. Procedures for Public Participation

    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 October 12, 2021. Upon expiration of the comment 
period, the Administrator will render a decision on CARB's request 
based on the record from the public hearing, if any, all relevant 
written submissions, and other information that he deems pertinent. All 
information will be available for inspection at the EPA Air Docket No. 
EPA-HQ-OAR-2021-0327.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information'' 
(``CBI''). If a person making comments wants EPA to base its decision 
on a submission labeled as CBI, then a non-confidential version of the 
document that summarizes the key data or information should be 
submitted to the public docket. To ensure that proprietary information 
is not inadvertently placed in the public docket, submissions 
containing such information should be sent directly to the contact 
person listed above and not to the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed, and according to 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: August 11, 2021.
Karl Simon,
Director, Transportation and Climate Division, Office of Transportation 
and Air Quality, Office of Air and Radiation.
[FR Doc. 2021-17497 Filed 8-13-21; 8:45 am]
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