24872 Federal Register / Vol. 76, No. 85 / Tuesday, May 3, 2011 / Notices 

1Section 209(e)(1) of the Act provides: 

No State or any political subdivision thereof shall 

adopt or attempt to enforce any standard or other 

requirement relating to the control of emissions 

from either of the following new nonroad engines 

or nonroad vehicles subject to regulation under this 

Act— 

(A) New engines which are used in construction 

equipment or vehicles or used in farm equipment 

or vehicles and which are smaller than 175 

horsepower. 

(B) New locomotives or new engines used in 

locomotives. Subsection (b) shall not apply for 

purposes of this paragraph. 

2See 59 FR 36969 (July 20, 1994), and regulations 

set forth therein, 40 CFR part 85, subpart Q, 

§§ 85.1601–85.1606. EPA has moved these 

regulations, without changing their substance to 40 

CFR part 1074. See 73 FR 59033, 59279 (October 

8, 2008). 

3See 59 FR 36969, 36983 (July 20, 1994). 

4Section 209(e)(1) of the Act has been 

implemented at 40 CFR Par 1074, 1074.10, 1074.12. 

§ 1074.10 provides in applicable part: 

(a) States are preempted from adopting or 

enforcing standards or other requirements relating 

to the control of emissions from new engines 

smaller than 175 horsepower that are primarily 

used in farm or construction equipment or vehicles, 

as defined in this part. For equipment that is used 

in applications in addition to farming or 

construction activities, if the equipment is 

primarily used as farm and/or construction 

equipment or vehicles (as defined in this part), it 

is considered farm or construction equipment or 

vehicles. 

ENVIRONMENTAL PROTECTION 

AGENCY 

[AMS–FRL–9301–6] 

California State Nonroad Engine and 

Vehicle Pollution Control Standards; 

Authorization of Tier II Marine Inboard/ 

Sterndrive Spark Ignition Engine 

Emission Standards; Notice of 

Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision. 

SUMMARY: EPA today, pursuant to 

section 209(e) of the Clean Air Act (Act), 

42 U.S.C. 7543(e), is granting California 

its request for authorization to enforce 

its emission standards and other 

requirements for its second tier (‘‘Tier 

II’’) of emission standards for new 

marine inboard/sterndrive spark 

ignition engines. 

DATES: Petitions for review must be filed 

by July 5, 2011. 

ADDRESSES: The Agency’s Decision 

Document, containing an explanation of 

the Assistant Administrator’s decision, 

as well as all documents relied upon in 

making that decision, including those 

submitted to EPA by California, are 

available for public inspection in EPA’s 

Air and Radiation Docket and 

Information Center (Air Docket). 

Materials relevant to this decision are 

contained in Docket OAR–2004–0403 at 

the following location: EPA Air Docket, 

Room 3334, 1301 Constitution Avenue, 

NW., Washington, DC 20460. The EPA 

Docket Center Public Reading Room is 

open from 8 a.m. to 4:30 p.m. Monday 

through Friday, except on government 

holidays. The Air Docket telephone 

number is (202) 566–1742, and the 

facsimile number is (202) 566–1741. 

You may be charged a reasonable fee for 

photocopying docket materials, as 

provided in 40 CFR part 2. 

Additionally, an electronic version of 

the public docket is available through 

the Federal government’s electronic 

public docket and comment system. 

You may access EPA dockets at http:// 

www.regulations.gov. After opening the 

http://www.regulations.gov Web site, 

select ‘‘Environmental Protection 

Agency’’ from the pull-down Agency 

list, then scroll to ‘‘Keyword or ID’’ and 

enter EPA–HQ–OAR–2004–0403 to 

view documents in the record of this 

Marine Engine Authorization Request 

docket. Although a part of the official 

docket, the public docket does not 

include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

EPA makes available an electronic 

copy of this Notice via the Internet on 

the Office of Transportation and Air 

Quality (OTAQ) homepage (http:// 

www.epa.gov/OTAQ). Users can find 

this document by accessing the OTAQ 

homepage and looking at the path 

entitled ‘‘Federal Register Notices.’’ This 

service is free of charge, except any cost 

you already incur for Internet 

connectivity. Users can also get the 

official Federal Register version of the 

Notice on the day of publication on the 

primary Web site: (http://www.epa.gov/ 

docs/fedrgstr/EPA–AIR/). Please note 

that due to differences between the 

software used to develop the documents 

and the software into which the 

documents may be downloaded, 

changes in format, page length, etc., may 

occur. 

EPA’s Office of Transportation and 

Air Quality also maintains a Web page 

that contains general information on its 

review of California waiver and 

authorization requests. Included on that 

page are links to several of the prior 

waiver Federal Register notices which 

are cited throughout today’s notice; the 

page can be accessed at http:// 

www.epa.gov/otaq/cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

Robert M. Doyle, Attorney-Advisor, 

Office of Transportation and Air 

Quality, (6405J), U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460 

(U.S. mail), 1310 L Street, NW., 

Washington, DC 20005 (courier mail). 

Telephone: (202) 343–9258; Fax: (202) 

343–2804; E-Mail: doyle.robert@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Nonroad Authorizations 

Section 209(e)(1) of the Act addresses 

the permanent preemption of any State, 

or political subdivision thereof, from 

adopting or attempting to enforce any 

standard or other requirement relating 

to the control of emissions for certain 

new nonroad engines or vehicles.1

Section 209(e)(2) of the Act requires the 

Administrator, after notice and 

opportunity for public hearing, to grant 

California authorization to enforce state 

standards for new nonroad engines or 

vehicles which are not listed under 

section 209(e)(1), subject to certain 

restrictions. EPA regulations set forth, 

among other things, the criteria, as 

found in section 209(e)(2), by which 

EPA must consider any California 

authorization requests for new nonroad 

engines or vehicle emission standards 

(section 209(e) rules).2 These 

regulations, codified at 40 CFR part 

1074, provide: 

(a) The Administrator will grant the 

authorization if California determines that its 

standards will be, in the aggregate, at least as 

protective of public health and welfare as the 

otherwise applicable Federal standards. 

(b) The authorization will not be granted if 

the Administrator finds that any of the 

following are true: 

(1) California’s determination of California 

is arbitrary and capricious; 

(2) California does not need such standards 

to meet compelling and extraordinary 

conditions; or 

(3) The California standards and 

accompanying enforcement procedures are 

not consistent with section 209 of the Act. 

As stated in the preamble to the 

section 209(e) rule, EPA has interpreted 

the requirement regarding whether 

‘‘California standards and accompanying 

enforcement procedures are not 

consistent with section 209’’ to require 

that California standards and 

accompanying enforcement procedures 

must in particular be consistent with 

section 209(a), section 209(e)(1), and 

section 209(b)(1)(C), as EPA has 

interpreted that subsection in the 

context of motor vehicle waivers.3 In 

order to be consistent with section 

209(a), California’s nonroad standards 

and enforcement procedures must not 

apply to new motor vehicles or new 

motor vehicle engines. Secondly, 

California’s nonroad standards and 

enforcement procedures must be 

consistent with section 209(e)(1), which 

identifies the categories permanently 

preempted from state regulation.4


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 85 / Tuesday, May 3, 2011 / Notices 24873 

§ 1074.12 provides in applicable part: 

States and localities are preempted from adopting 

or enforcing standards or other requirements 

relating to the control of emissions from new 

locomotives and new engines used in locomotives. 

§ 1074.5 provides definitions of terms used in 

§ 1074.0 and sates in applicable part: 

Construction equipment or vehicle means any 

internal combustion engine-powered machine 

primarily used in construction and located on 

commercial construction sites. 

Farm Equipment or Vehicle means any internal 

combustion engine-powered machine primarily 

used in the commercial production and/or 

commercial harvesting of food, fiber, wood, or 

commercial organic products or for the processing 

of such products for further use on the farm. 

Primarily used means 51 percent or more. 

5To be consistent, the California certification 

procedures need not be identical to the Federal 

certification procedures. California procedures 

would be inconsistent, however, if manufacturers 

would be unable to meet both the state and the 

Federal requirement with the same test vehicle in 

the course of the same test. See, e.g., 43 FR 32182 

(July 25, 1978). 

6See, e.g., Motor and Equipment Manufacturers 

Association, Inc. v. EPA, 627 F.2d 1095, 1111–14 

(DC Cir. 1979), cert. denied, 446 U.S. 952 (1980) 

(MEMA I); 43 FR 25729 (June 14, 1978). While 

inconsistency with section 202(a) includes 

technological feasibility, lead time, and cost, these 

aspects are typically relevant only with regard to 

standards. The aspect of consistency with 202(a) 

which is of primary applicability to enforcement 

procedures (especially test procedures) is test 

procedure consistency. 

7See 43 FR 36679, 36680 (August 18, 1978). 

8Letter from Catherine Witherspoon, Executive 

Officer, CARB to Administrator, EPA regarding its 

‘‘Request for Authorization to Enforce California’s 

Emission Standards and Test Procedures for New 

2003 and later Spark-Ignition Inboard and 

Sterndrive Marine Engines,’’ dated March 2, 2004 

(‘‘CARB IB/SD Request letter’’), Docket Entry EPA– 

HQ–OAR–2004–0403–0018. 

9 70 FR 2151 (January 12, 2005). 

10See Letter from John McKnight, National 

Marine Manufacturers Association (NMMA), to 

Robert M. Doyle, USEPA, dated January 27, 2005, 

Docket Entry EPA–HQ–2004–0403–0030. 

11Written statements presented at this hearing 

and the hearing transcript appear in the Docket as 

Docket Entries EPA–HQ–OAR–2004–0403–0031 

through EPA–HQ–OAR–2004–0403–0036. 

12These comments can be found in the Docket as 

Docket entries EPA–HQ–OAR–2004–0037 through 

EPA–HQ–OAR–2004–0047. 

13The NPRM is found at 72 FR 14546 (March 28, 

2007), and the final regulations at 73 FR 59034 

(October 8, 2008). 

California’s nonroad standards and 

enforcement procedures would be 

considered inconsistent with section 

209 if they applied to the categories of 

engines or vehicles identified and 

preempted from State regulation in 

section 209(e)(1). 

Finally, because California’s nonroad 

standards and enforcement procedures 

must be consistent with section 

209(b)(1)(C), EPA will review nonroad 

authorization requests under the same 

‘‘consistency’’ criteria that are applied to 

motor vehicle waiver requests. Under 

section 209(b)(1)(C), the Administrator 

shall not grant California a motor 

vehicle waiver if she finds that 

California’s ‘‘standards and 

accompanying enforcement procedures 

are not consistent with section 202(a)’’ 

of the Act. Previous decisions granting 

waivers of Federal preemption for motor 

vehicles have stated that State standards 

are inconsistent with section 202(a) if 

there is inadequate lead time to permit 

the development of the necessary 

technology giving appropriate 

consideration to the cost of compliance 

within that time period or if the Federal 

and State test procedures impose 

inconsistent certification requirements.5

With regard to enforcement 

procedures accompanying standards, 

EPA must grant the requested 

authorization unless it finds that these 

procedures may cause the California 

standards, in the aggregate, to be less 

protective of public health and welfare 

than the applicable Federal standards 

promulgated pursuant to section 213(a), 

or unless the Federal and California 

certification test procedures are 

inconsistent.6

Once California has received an 

authorization for its standards and 

enforcement procedures for a certain 

group or class of nonroad equipment 

engines or vehicles, it may adopt other 

conditions precedent to the initial retail 

sale, titling or registration of these 

engines or vehicles without the 

necessity of receiving an additional 

authorization.7

B. CARB’s Authorization Request and 

EPA’s Authorization Proceeding 

The California Air Resources Board 

(CARB) requested EPA’s authorization 

of the IB/SD marine engine emission 

standards by letter dated March 2, 

2004.8 The CARB standards were 

implemented in two tiers; the first tier 

set HC and NOX standards beginning 

with the 2003 model year engines, and 

the second tier set more stringent HC 

and NOX standards beginning with the 

2007 model year engines. As required 

by the Act, EPA offered the opportunity 

for a public hearing and requested 

public comments on these new 

standards on January 12, 2005; 9 this 

hearing also covered earlier CARB 

authorization requests for emission 

standards for marine outboard and 

personal watercraft spark ignition 

engines. EPA received a request for a 

hearing from the National Marine 

Manufacturers Association (NMMA),10

and a hearing was held on February 28, 

2005,11 at which the NMMA, several 

boat manufacturers, and the 

Manufacturers of Emission Controls 

Association (MECA) testified. In 

addition, EPA received written 

comments from several boat 

manufacturers (some of whom also 

testified at the hearing), the U.S. Coast 

Guard, MECA, NMMA, Senator Herb 

Kohl (D–WI), and Senator James Inhofe 

(R–OK), as well as a supplemental 

submission from CARB responding to 

matters raised at the public hearing.12

After our review of the information 

submitted by CARB in its requests, and 

the information presented to the Agency 

at the public hearing and in the 

comments received after the hearing, 

EPA granted authorization for the CARB 

emission regulations for marine sparkignition outboard and personal 

watercraft (PWC) engines in their 

entirety. EPA also granted authorization 

for the first Tier of the CARB regulations 

covering (IB/SD) engines. For the Tier I 

standards (as well as for the outboard 

and personal watercraft engines), EPA 

determined that CARB had successfully 

shown that these standards were 

technologically feasible, and thus met 

the authorization criterion of 

consistency with section 202(a). 

Regarding the Tier II IB/SD emission 

standards, all parties who testified at the 

hearing and submitted comments after 

the hearing, with the exception of CARB 

and MECA, had expressed concern that 

CARB had not shown that the Tier II 

IB/SD standards were technologically 

feasible, because they believed CARB 

had not shown that catalysts needed for 

the marine IB/SD engines to comply 

with the CARB standards were safe and 

durable in saltwater operation. 

Accordingly, EPA deferred 

authorization of these standards until 

the conclusion of then ongoing joint 

testing (by CARB, EPA, the U.S. Coast 

Guard, and the industry), to evaluate the 

technological feasibility of both the 

CARB Tier II IB/SD standards and 

Federal IB/SD standards which, at that 

time, were expected to be proposed in 

2007. These Federal standards were 

proposed in May 2007 and finalized in 

October 2008.13

Shortly after the EPA IB/SD proposed 

standards were published, the NMMA 

wrote to EPA stating that ‘‘at this stage 

of catalyst development, there is little or 

no additional data to be obtained by 

completing the (joint test program). 

* * * NMMA agrees that EPA and 

CARB can cancel the saltwater test 

program.’’ Additionally, NMMA 

dropped its objection to the ‘‘waiver’’ of 

the CARB standards because ‘‘one 

manufacturer is already in production 

with catalysts, and the others will be 


srobinson on DSKHWCL6B1PROD with NOTICES
24874 Federal Register / Vol. 76, No. 85 / Tuesday, May 3, 2011 / Notices 

14Letter from John McKnight, NMMA to Robert 

Doyle, EPA, dated May 11, 2007, Docket Entry 

EPA–HQ–OAR–2004–0403–0042. 

ready to meet the CARB standard in 

2008.’’ 14

II. Decision 

EPA, based on the record of this 

proceeding, cannot find that CARB’s 

Marine Tier II IB/SD protectiveness 

determination was arbitrary and 

capricious, that CARB does not need its 

own standards to meet compelling and 

extraordinary conditions, or that the 

CARB standards are inconsistent with 

section 209 of the Act. Therefore, EPA 

grants authorization for CARB to enforce 

the second tier of its regulations for 

IB/SD engines which set a level of 5.0 

g/kW-hr HC plus NOX and phases in 

beginning with 45% of manufacturers’ 

sales in 2007, 75% in 2008, and 100% 

in 2009 and beyond. EPA has made this 

authorization decision based on the 

information submitted by CARB in its 

requests, and the information presented 

to the Agency at the public hearing and 

in the comments received after the 

hearing. A full explanation of EPA’s 

decision, including our review of 

comments received, is contained in our 

Decision Document which may be 

obtained as explained above in the 

ADDRESSES section of this Notice. 

My decision will affect not only 

persons in California but also persons 

outside the State who would need to 

comply with California’s Marine Tier II 

IB/SD regulations to produce engines for 

introduction into commerce in 

California. For this reason, I hereby 

determine and find that this is a final 

action of national applicability. 

Under section 307(b)(1) of the Act, 

judicial review of this final action may 

be sought only in the United States 

Court of Appeals for the District of 

Columbia Circuit. Petitions for review 

must be filed by July 5, 2011. Under 

section 307(b)(2) of the Act, judicial 

review of this final action may not be 

obtained in subsequent enforcement 

proceedings. 

As with past waiver and authorization 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

The Congressional Review Act, 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, does not apply 

because this action is not a rule, for 

purposes of 5 U.S.C. 804(3). 

Finally, the Administrator has 

delegated the authority to make 

determinations regarding authorizations 

under section 209(e) of the Act to the 

Assistant Administrator for Air and 

Radiation. 

Dated: April 26, 2011. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2011–10752 Filed 5–2–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OW–2010–0782; ER–FRL–8996–7] 

Initiation of Scoping for an 

Environmental Assessment (EA) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Initiation of Scoping. 

SUMMARY: Pursuant to the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321–4307h), the Council on 

Environmental Quality’s NEPA 

regulations (40 CFR parts 1500–1508), 

and EPA’s regulations for implementing 

NEPA (40 CFR part 6), EPA will prepare 

an Environmental Assessment (EA) to 

analyze the potential environmental 

impacts related to the reissuance of the 

National Pollutant Discharge 

Elimination System (NPDES) General 

Permit for Discharges from Construction 

Activities. The EA will evaluate the 

potential environmental impacts from 

the discharge of pollutants associated 

with stormwater runoff from 

construction activities greater than one 

acre, where EPA is the permitting 

authority. EPA will use the information 

in the EA to determine whether to 

prepare an Environmental Impact 

Statement (EIS). 

This notice initiates the scoping 

process by inviting comments from 

Federal, State, and local agencies, 

Indian tribes, and the public to help 

identify the environmental issues and 

reasonable alternatives to be examined 

in the EA. The scoping process will 

inform the preparation of the EA, which 

will be made available for public 

comment. 

DATES: Comments must be received by 

May 27, 2011. 

ADDRESSES: You may submit scoping 

comments to the Docket ID No. EPA– 

HQ–OW–2010–0782 by any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments by clicking on ‘‘Help’’ or 

‘‘FAQs.’’ 

• Mail: Attn: CGP Scoping Comments, 

U.S. Environmental Protection Agency, 

Ariel Rios Building, 1200 Pennsylvania 

Avenue, NW., Mail Code: 2252A, 

Washington, DC 20460. 

• Courier: Attn: CGP Scoping 

Comments, U.S. Environmental 

Protection Agency, Ariel Rios Building, 

1200 Pennsylvania Avenue, NW., Rm. 

#7241C, Washington, DC 20004, 

between 9 a.m. and 5 p.m. Eastern time, 

Monday through Friday, except Federal 

holidays. 

• Fax: 202–564–0072, ATTN: CGP 

Scoping Comments. 

Comments should be received within 

30 days of the date of the publication of 

the Proposed Construction General 

Permit in the Federal Register. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you submit an electronic comment, 

EPA recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

FOR FURTHER INFORMATION CONTACT: 

Jessica Trice, NEPA Compliance 

Division, Office of Federal Activities, 

U.S. Environmental Protection Agency, 

1200 Pennsylvania Avenue, NW., Mail 

Code: 2252A, Washington, DC 20460. 

Telephone: (202) 564–6646. 

SUPPLEMENTARY INFORMATION: EPA is 

seeking public comment to determine 

the scope of environmental issues and 


srobinson on DSKHWCL6B1PROD with NOTICES