California State Nonroad Engine and Equipment Pollution Control Standards; Opportunity for Public Hearing

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5224-6]

California State Nonroad Engine and Equipment Pollution Control

Standards; Opportunity for Public Hearing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of an opportunity for public hearing and public comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA

that it has adopted regulations for exhaust emission standards and test

procedures for nonroad recreational vehicles and engines (recreational

vehicles) for 1997 and subsequent calendar years. CARB has requested

that EPA authorize CARB to enforce these regulations pursuant to

section 209(e) of the Clean Air Act (Act), as amended, 42 U.S.C. 7543,

and EPA's regulation ``Air Pollution Control; Preemption of State

Regulation for Nonroad Engine and Vehicle Standards'' (section 209(e)

Rule) (40 CFR part 85; 59 FR 26969-36983). This notice announces that

EPA has tentatively scheduled a public hearing to consider CARB's

request and to hear comments from interested parties regarding CARB's

request for EPA's authorization and CARB's determination that its

regulations, as noted above, comply with the criteria set forth in the

209(e) Rule. In addition, EPA is requesting that interested parties

submit written comments. Any party desiring to present oral testimony

for the record at the public hearing, instead of, or in addition to,

written comments, must notify EPA by July 26, 1995. If no party

notifies EPA that it wishes to testify on the recreational vehicles

regulations, then no hearing will be held and EPA will consider CARB's

authorization request based on written submissions to the record.

DATES: EPA has tentatively scheduled a public hearing for August 8,

1995, beginning at 9:00 a.m., if any party notifies EPA by July 26,

1995, that it wishes to present oral testimony regarding CARB's

request. Any party may submit written comments regarding CARB's request

by September 11, 1995. After July 26, 1995, any person who plans to

attend the hearing may call David Dickinson of EPA's Manufacturers

Operations Division at (202)233-9256 to determine if a hearing will be

held.

ADDRESSES: If a request is received, EPA will hold the public hearing

announced in this notice at the Channel Inn Hotel, 650 Water Street

SW., Washington, DC. Parties wishing to present oral testimony at the

hearing should notify in writing, and if possible, submit ten (10)

copies of the planned testimony to: Charles N. Freed, Director,

Manufacturers Operations Division (6405J), U.S. Environmental

Protection Agency, 401 M Street SW., Washington, DC 20460. In addition,

any written comments regarding the authorization request, should be

sent, in duplicate, to Charles N. Freed at the same address to the

attention of Docket A-95-17. Copies of material relevant to the

authorization request (Docket A-95-17) will be available for public

inspection during normal working hours of 8 a.m. to 4 p.m. Monday

through Friday, including all non-government holidays, at the U.S.

Environmental Protection Agency, Air and Radiation Docket and

Information Center, 401 M Street, S.W., Washington, DC 20460.

Telephone: (202)260-7548. FAX Number: (202)260-4000.

FOR MORE INFORMATION CONTACT: David Dickinson, Attorney/Advisor,

Manufacturers Operations Division (6405J), U.S. Environmental

Protection Agency, 401 M Street SW., Washington, DC 20460. Telephone:

(202)233-9256.

SUPPLEMENTARY INFORMATION:

I. Background

Section 209(e)(1) of the Act as amended, 42 U.S.C. 7543(e)(1),

provides in part: ``No State or any political subdivision thereof shall

adopt or attempt to enforce any standard 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.''

For those new pieces of equipment or new vehicles other than those

a State is not permanently preempted from regulating under section

209(e)(1), the State of California may regulate such new equipment or

new vehicles provided California complies with Section 209(e)(2).

Section 209(e)(2) provides in part that the Administrator shall, after

notice and opportunity for [[Page 32315]] public hearing, authorize

California to adopt and enforce standards and other requirements

relating to the control of emissions from such vehicles or engines

``[i]f California determines that California standards will be, in the

aggregate, at least as protective of public health and welfare as

applicable Federal standards. No such authorization shall be granted if

the Administrator finds that--(i) the determination of California is

arbitrary and capricious, (ii) California does not need such California

standards to meet compelling and extraordinary conditions, or (iii)

California standards and accompanying enforcement procedures are not

consistent with this section.''

EPA has issued a final regulation titled ``Air Pollution Control;

Preemption of State Regulation for Nonroad Engine and Vehicle

Standards'' (section 209(e) Rule) that sets forth several definitions,

as explained below, and the authorization criteria EPA must consider

before granting California an authorization to enforce any of its

nonroad engine standards.1 As described in the section 209(e)

Rule, in order to be deemed ``consistent with this section'',

California standards and enforcement procedures must be consistent with

section 209. In order to be consistent with section 209 California

standards and enforcement procedures must reflect the requirements of

sections 209(a), 209(e)(1), and 209(b). Section 209(a) prohibits states

from adopting or enforcing emission standards for new motor vehicles or

new motor vehicle engines.2 Section 209(e)(1) identifies the

categories preempted from state regulation. As stated above, the

preempted categories are (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, and (b) new locomotives or new engines

used in locomotives. The section 209(e) Rule defines construction

equipment or vehicle to mean ``any internal combustion engine-powered

machine primarily used in construction and located on commercial

construction sites. The section 209(e) Rule defines farm equipment or

vehicle to mean ``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. The

section 209(e) rule defines ``primarily used'' to mean ``used 51

percent or more.''3 Therefore, California's proposed emission

regulations would be considered inconsistent with section 209 if they

applied to these permanently preempted categories. Additionally, the

section 209(e) Rule requires EPA to review nonroad authorization

requests under the same ``consistency'' criterion that it reviews 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 standards and accompanying enforcement procedures are not

consistent with section 202(a) of the Act. California's nonroad

standards are not consistent with section 202(a) if there is inadequate

lead time to permit the development of technology necessary to meet

those standards, giving appropriate consideration to the cost of

compliance within that time frame. Additionally, California's nonroad

accompanying enforcement procedures would be inconsistent with section

202(a) if the Federal and California test procedures were inconsistent,

that is, manufacturers would be unable to meet both the State and

Federal test requirements with one test vehicle or engine.

\1\See 59 FR 36969, July 20, 1994 (to be codified at 40 C.F.R.

Part 85, Subpart Q, Secs. 85.1601-85.1606). Sec. 85.1604(a) states

``California shall request authorization to enforce its adopted

standards and other requirements relating to the control of

emissions from new nonroad vehicles * * *.'' As explained in the

preamble to the 209(e) rule, California may first adopt a nonroad

exhaust emission standard and then seek an authorization from EPA to

enforce such standard.

\2\EPA believes CARB's authorization request for recreational

vehicles does not raise an issue with regard to whether such

vehicles are motor vehicles. EPA anticipates that it will utilize

both its definitions of motor vehicles and nonroad engines to

resolve this issue.

\3\See 40 CFR part 85, subpart Q, Sec. 85.1602.

Once California has been granted an authorization, under section

209(e)(2), for its standards and accompanying enforcement procedures

for a category or categories of equipment, it may adopt other

conditions precedent to initial retail sale, titling or registration of

the subject category or categories of equipment without the necessity

of receiving further EPA authorization.

By letter dated March 6, 1995, CARB submitted to EPA a request that

EPA authorize California to enforce regulations for standards and test

procedures for 1997 and subsequent calendar year recreational vehicles.

These regulations, which apply to off-road motorcycles, all-terrain

vehicles (ATVs), golf carts, go-karts, and specialty vehicles:

a. Establish an exhaust emission standard for off-road motorcycles

and ATV engines produced after December 31, 1996, measured in grams-

per-kilometer.

b. Establish a zero-emission requirement for golf carts produced

after December 31, 1996.

c. Require that specialty vehicles less than 25 horsepower comply

with the exhaust emission standards applicable to utility equipment

engines as set forth in Title 13, California Code of Regulation,

Section 2403.

d. Establish an exhaust emission standard for specialty vehicles 25

horsepower and greater produced after December 31, 1996 that is

equivalent to the 1999 utility exhaust emission standards.

e. Require that no new engines produced for sale to replace pre-

controlled off-road motorcycle, ATV, go-kart (25 horsepower and

greater), golf cart, and specialty vehicle engines after the

implementation of the exhaust emission standards, unless those new

replacement engines comply with the applicable exhaust emission

standards.

f. Adopt the current federal on-road motorcycle test procedures for

off-road motorcycles and ATVs, with an option for ATVs to certify using

CARB's utility engine test procedure. For go-karts 25 horsepower and

above and specialty vehicles CARB's current utility engine testing

procedures will apply. Require certification of engines including

compliance and assembly-line quality audit test procedures.

g. Establish a labeling requirement for off-road motorcycles, ATVs,

go-karts, and specialty vehicles.

h. Require that CARB's on-road vehicle recall procedures and

program apply to off-road motorcycles and ATVs.

i. Establish a requirement that off-road motorcycles and ATVs be

encoded with a vehicle identification number in order that such

vehicles may be properly registered with California's Department of

Motor Vehicles.

j. Require manufactures of specialty vehicles and go-karts 25

horsepower and above to comply with the two year warranty regulations

that are part of California's utility engine regulations.

California states in its March 6, 1995 letter that it has

determined that its standards for recreational vehicles are, in the

aggregate, at least as protective of the public health and welfare as

the applicable Federal standards. Further, California states that it

needs separate standards to meet compelling and extraordinary

conditions. Finally, California states that its standards and test

procedures are consistent with section 209 of the Act. California's

request will be considered according to the criteria for an

authorization request as set forth in the section 209(e)

[[Page 32316]] regulation.4 Any party wishing to present testimony

at the hearing or by written comment should address, as explained in

the section 209(e) rule, the following issues:

\4\``Air Pollution Control; Preemption of State Regulation for

Nonroad Engine and Vehicle Standards'' at 59 FR 36969, July 20, 1994

and 40 CFR Part 85, Subpart Q, Secs. 85.1601-85.1606).

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(1) Whether California's determination that its standards are at

least as protective of public health and welfare as applicable Federal

standards is arbitrary and capricious;

(2) Whether California needs separate standards to meet compelling

and extraordinary conditions; and,

(3) Whether California's standards and accompanying enforcement

procedures are consistent with (i) section 209(a), which prohibits

states from adopting or enforcing emission standards for new motor

vehicles or engines, (ii) section 209(e)(1), which identifies the

categories preempted from state regulation, and (iii) section 202(a) of

the Act, which requires adequate lead time to permit the development of

technology necessary to meet the standards, giving appropriate

consideration to the cost of compliance within that time frame, and

consistent Federal and California test procedures, that is,

manufacturers would be able to meet both the State and federal test

requirements with one test vehicle or engine.

II. Public Participation

If the scheduled hearing takes place, it will provide an

opportunity for interested parties to state orally their views or

arguments or to provide pertinent information regarding the issues as

noted above and further explained in the section 209(e) Rule. Any party

desiring to make an oral statement on the record should file ten (10)

copies of its proposed testimony and other relevant material along with

its request for a hearing with the Director of EPA's Manufacturers

Operations Division at the Director's address listed above not later

than July 26, 1995. In addition, the party should submit 50 copies, if

possible, of the proposed statement to the presiding officer at the

time of the hearing.

In recognition that a public hearing is designed to give interested

parties an opportunity to participate in this proceeding, there are no

adverse parties as such. Statements by participants will not be subject

to cross-examination by other participants without special approval by

the presiding officer. The presiding officer is authorized to strike

from the record statements which he deems irrelevant or repetitious and

to impose reasonable limits on the duration of the statement of any

participant.

If a hearing is held, the Agency will make a verbatim record of the

proceedings. Interested parties may arrange with the reporter at the

hearing to obtain a copy of the transcript at their own expense.

Regardless of whether a public hearing is held, EPA will keep the

record open until September 11, 1995.

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.'' To

ensure that proprietary information is not inadvertently placed in the

docket, submissions containing such information should be sent directly

to the contact person listed above and not to the public docket. If a

person making comments wants EPA to base its final decision in part on

a submission labeled as confidential business information, then a non-

confidential version of the document which summarizes the key data or

information should be placed in the public docket. Information covered

by a claim of confidentiality will be disclosed by EPA only to the

extent allowed by the procedures set forth in 40 CFR part 2. If no

claim of confidentiality accompanies the submission when it is received

by EPA, it may be made available to the public without further notice

to person making comments.

Dated: June 8, 1995.

Richard D. Wilson,

Acting Assistant Administrator for Air and Radiation

[FR Doc. 95-15165 Filed 6-20-95; 8:45 am]

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