14546 Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 / 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. 

3As discussed above, states are permanently 

preempted from adopting or enforcing standards 

relating to the control of emissions from new 

engines listed in section 209(e)(1). 

4See 40 CFR part 85, Subpart Q, § 85.1605. 

publication by the Environmental 

Protection Agency of a Notice of 

Availability of the Final SEIS. 

Issued in Washington, DC, on March 21, 

2007. 

Eric J. Fygi, 

Acting General Counsel. 

[FR Doc. E7–5591 Filed 3–27–07; 8:45 am] 

BILLING CODE 6450–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[AMS–FRL–8292–8] 

California State Nonroad Engine and 

Vehicle Pollution Control Standards; 

Authorization of Marine Outboard, 

Personal Watercraft and Tier One 

Inboard/Sterndrive Engine Standards, 

Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Decision for 

Authorization of California Marine 

Outboard, Personal Watercraft and Tier 

One Inboard/Sterndrive Engine 

Emission Standards. 

SUMMARY: EPA today, pursuant to 

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

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

its requests for authorization of its 

Marine Spark-Ignition Engines 

regulations for outboard and personal 

watercraft engines in their entirety, and 

for the first tier of regulations affecting 

inboard and sterndrive engines. EPA is 

deferring an authorization decision on 

the second tier of inboard and 

sterndrive standards pending the 

completion of testing currently 

underway to evaluate the technological 

feasibility of both the California inboard 

and sterndrive standards and Federal 

inboard and sterndrive standards which 

are expected to be proposed regulations 

in 2007. 

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 

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 5:30 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. 

FOR FURTHER INFORMATION CONTACT: 

Robert M. Doyle, Attorney-Advisor, 

Office of Transportation and Air 

Quality, (6403J), 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. Obtaining Electronic Copies of 

Documents 

EPA makes available an electronic 

copy of this Notice 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/EPAAIR/) 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. 

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 Docket ID EPA–HQ–

OAR–2004–0403 to view documents in 

the record of this Marine 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. 

II. 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 allows the 

Administrator to grant California 

authorization to enforce state standards 

for new nonroad engines or vehicles 

which are not listed under section 

209(e)(1), subject to certain restrictions. 

On July 20, 1994, EPA promulgated a 

regulation that sets forth, among other 

things, the criteria, as found in section 

209(e)(2), by which EPA must consider 

any California authorization requests for 

new nonroad engines or vehicle 

emission standards (section 209(e) 

rules).2

Section 209(e)(2) requires the 

Administrator, after notice and 

opportunity for public hearing, to 

authorize California to enforce 

standards and other requirements 

relating to emissions control of new 

engines not listed under section 

209(e)(1).3 The section 209(e) rule and 

its codified regulations 4 formally set 

forth the criteria, located in section 

209(e)(2) of the Act, by which EPA must 

grant California authorization to enforce 

its new nonroad emission standards: 

40 CFR part 85, Subpart Q, § 85.1605 

provides: 

(a) The Administrator shall grant the 

authorization if California determines that its 

standards will be, in the aggregate, at least as 

protective of public health and welfare as 

applicable Federal standards. 

(b) The authorization shall not be granted 

if the Administrator finds that: 

(1) The determination of California is 

arbitrary and capricious; 

(2) California does not need such California 

standards to meet compelling and 

extraordinary conditions; or 

(3) California standards and accompanying 

enforcement procedures are not consistent 

with section 209. 

As stated in the preamble to the 

section 209(e) rule, EPA has interpreted 

the requirement that EPA cannot find 

‘‘California standards and 

accompanying enforcement procedures 

are not consistent with section 209’’ to 

mean that California standards and 


sroberts on PROD1PC70 with NOTICES
Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 / Notices 14547 

5See 59 FR 36969, 36983 (July 20, 1994). 6Section 209(e)(1) of the Act has been 

implemented, See 40 CFR part 85, Subpart Q 

§§ 85.1602, 85.1603. 

§ 85.1603 provides in applicable part: 

(a) 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 subpart, it is considered farm or construction 

equipment or vehicles. (b) 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 subpart. 

§ 85.1602 provides definitions of terms used in 

§ 85.1603 and states 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 used 51 percent or more. 

7To 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). 

8See, e.g., Motor and Equipment Manufacturers 

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

(D.C. 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. 

9See 43 FR 36679, 36680 (August 18, 1978). 

10 Decision Document for California Nonroad 

Engine Regulations Amendments, Dockets A–2000–

05 to 08, entry V–B, p. 28. 

11At the time this request was presented to EPA, 

the California Office of Administrative Law had not 

approved the section of the regulations dealing with 

these hang tags because of problems it found with 

the applicability date of the hang tag requirement. 

These problems were resolved and the hang tag 

requirement was included as part of the CARB June 

5, 2002 request described below. 

12Personal watercraft are small watercraft on 

which the rider sits or stands during operation, 

such as jet skis and wave runners. CARB Staff 

Report, October 23, 1998, at p. 9, Docket OAR–

2004–0403. 

accompanying enforcement procedures 

must be consistent with section 209(a), 

section 209(e)(1), and section 

209(b)(1)(C), as EPA has interpreted that 

subsection in the context of motor 

vehicle waivers.5 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.6 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 he finds that California 

‘‘standards and accompanying 

enforcement procedures are not 

consistent with section 202(a)’’ of the 

Act. Previous decisions granting waivers 

of Federal preemption for motor 

vehicles have stated that State standards 

are inconsistent with section 202(a) if 

there is inadequate lead time to permit 

the development of the necessary 

technology giving appropriate 

consideration to the cost of compliance 

within that time period or if the Federal 

and State test procedures impose 

inconsistent certification requirements.7

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.8

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.9

If California acts to amend a 

previously authorized standard or 

accompanying enforcement procedure, 

the amendment may be considered 

within the scope of a previously granted 

authorization provided that it does not 

undermine California’s determination 

that its standards in the aggregate are as 

protective of public health and welfare 

as applicable Federal standards, does 

not affect the consistency with section 

209 of the Act, and raises no new issues 

affecting EPA’s previous authorization 

determination.10

(B) Summary of Background Requests 

The California Air Resources Board 

(CARB) submitted to EPA three separate 

but related requests to authorize various 

marine spark ignition engine 

regulations. EPA examined all three 

submissions together in our review of 

the requests to enforce CARB’s marine 

SI engine emissions regulation program. 

These requests are summarized in order 

below. 

(1) By letter dated April 4, 2000, 

CARB requested EPA authorization to 

enforce California’s marine SI 

regulations affecting outboard (OB) 

marine engines. The CARB regulations 

set emission standards for these marine 

engines commencing with model year 

2001 for both certification and in-use 

standards. The first tier of the CARB 

regulations basically adopted the 

standards equivalent to the EPA 2006 

marine SI engines. CARB also adopted 

a second tier of outboard engine 

regulations, commencing in model year 

2004 requiring emissions at levels 

approximately 80% of the EPA 2006 

standards, and a third tier, commencing 

in 2008, requiring emissions at levels 

approximately 35% of the EPA 2006 

standard. Manufacturers are permitted 

to meet the standards directly or on a 

corporate average basis, where some 

engine families may emit more than the 

emission standard if they are offset by 

engines which emit sufficiently less 

than the standard. To accompany the 

new standards, CARB also adopted 

regulations requiring manufacturer 

production line testing (along with 

CARB authority to conduct Selective 

Enforcement Audits), manufacturer 

demonstration of in-use compliance, 

emission warranties, permanent 

emission certification labels for covered 

engines, and special ‘‘hang tags’’ for 

consumer/environmental awareness of 

clean technology engines.11

(2) By letter dated June 5, 2002, CARB 

extended the earlier authorization 

request to include regulations for 

marine SI engines in personal watercraft 

(PWC) 12 for model year 2002 and 

beyond. The PWCs are subject to the 

same emission standards and 

requirements as the marine outboard SI 

engines discussed above. The CARB 

marine regulations had included both 

outboards and PWCs from the outset, 

but PWCs had not been included in the 

original CARB request because of 

technical issues raised by PWC 

manufacturers related to compliance 

with the CARB standards for model year 

2001. The June 5, 2002 CARB request 

stated that those issues had been 


sroberts on PROD1PC70 with NOTICES
14548 Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 / Notices 

13 Inboard engines include a propeller shaft that 

penetrates the hull of the marine vessel, while the 

engine and the remainder of the drive unit are 

internal to the hull of the marine watercraft. In 

sterndrive engines, the drive unit is external to the 

hull of the marine watercraft, while the engine is 

internal to the hull of the marine watercraft. CARB 

Staff Report, June 8, 2002, at p. 4, Docket OAR–

2004–0403. 

14 70 FR 2151 (January 12, 2005). 

15See Letter from John McKnight, National 

Marine Manufacturers Association, to Robert M. 

Doyle, USEPA, dated January 27, 2005, Docket 

Entry 2004–0403–0030. 

16Written Statements presented at this hearing 

and the hearing transcript appear in the Docket as 

Docket Entries 2004–0403–0031 through 2004–

0403–0036. 

17These comments appear in the Docket as 

Docket Entries 2004–0403–0037 through 2004–

0403–0047. 

resolved, so CARB submitted this 

extension. In addition, CARB submitted 

for authorization the marine engine 

consumer hang tag regulations because 

the earlier model year applicability 

issue had been resolved. 

(3) By letter dated March 2, 2004, 

CARB extended the earlier requests by 

requesting authorization to enforce 

California’s marine SI regulations 

affecting inboard and sterndrive (IB/SD) 

engines for model years 2003 and 

beyond.13 The first tier of regulations, 

for model year 2003 through 2008, sets 

a cap reflecting average emission levels 

of 16.0 grams per kilowatt hour (g/kWhr) HC plus NOX which manufacturers 

can meet directly by engine family or by 

corporate average. The second tier of 

standards sets a level of 5.0 g/kW-hr HC 

plus NOX and will phase in beginning 

with 45% of manufacturers’ sales in 

2007, 75% in 2008 and 100% in 2009 

and beyond. For 2007 and 2008, all 

engines subject to the standard must 

comply directly with the standard, with 

no option for sales weighted-averaging. 

Besides these new standards, other 

regulations establish requirements for 

certification, emission test procedures, 

emissions warranty, and emission 

certification labels and consumer/ 

environmental awareness hang tag 

labels. In addition, the IB/SD 

regulations require on-board diagnostics 

for these engines. Finally, as part of the 

IB/SD rulemaking, CARB adopted some 

minor amendments to the OB and PWC 

regulations to clarify some definitions 

and labeling requirements made 

necessary by the adoption of the 

regulations for IB/SD marine engines. 

As required by the Act, EPA offered 

the opportunity for a public hearing and 

requested public comments on these 

new standards by publication of a 

Federal Register notice to such effect on 

January 12, 2005.14 EPA received a 

request for a hearing from the National 

Marine Manufacturers Association,15

and a hearing was held on February 28, 

2005.16 In addition, EPA received posthearing written comments for the 

Docket of this proceeding from the U.S. 

Coast Guard, the Manufacturers of 

Emissions Controls Association, the 

National Marine Manufacturers 

Association, several marine engine 

manufacturers, Senator Herb Kohl (D–

WI), and Senator James Inhofe (R–OK), 

and a supplemental submission from 

CARB responding to matters raised at 

the public hearing.17 Accordingly, 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. 

(C) Authorization Decision 

After review of the information 

submitted by CARB and other parties to 

the record of this Docket, EPA finds that 

no party has presented information to 

the Agency which would demonstrate 

that California did not meet the burden 

of satisfying the statutory criteria of 

section 209(e). For this reason, EPA is 

granting authorization for the CARB 

Marine Spark-Ignition Engines 

regulations for OB and PWC engines in 

their entirety. With respect to the 

regulations affecting IB/SD engines, EPA 

grants authorization for CARB to enforce 

the first tier of these regulations for 

model year 2003 through 2008, which 

set a cap reflecting average emission 

levels of 16.0 grams per kilowatt hour 

(g/kW-hr) HC plus NOX which 

manufacturers can meet directly by 

engine family or by corporate average. 

EPA is deferring an authorization 

decision on the second tier of standards 

which set a level of 5.0 g/kW-hr HC plus 

NOX and will phase in beginning with 

45% of manufacturers’ sales in 2007, 

75% in 2008 and 100% in 2009 and 

beyond. There is testing currently 

underway, performed as a joint program 

by CARB, EPA, the U.S. Coast Guard 

and the industry, to evaluate the 

technological feasibility of both the 

CARB IB/SD standards and Federal IB/ 

SD standards which are expected to be 

proposed regulations in 2007. At the 

conclusion of this testing, EPA will 

issue its authorization decision for the 

second tier (i.e., for 2007 and beyond) 

CARB IB/SD standards. 

My decision will affect not only 

persons in California but also the 

manufacturers outside the State who 

must comply with California’s 

requirements in order to produce 

nonroad engines and vehicles for sale in 

California. For this reason, I hereby 

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 May 29, 2007. Under 

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

review of this final action may not be 

obtained in subsequent enforcement 

proceedings. 

As with past authorization decisions, 

this action is not a rule as defined by 

Executive Order 12866. Therefore, it is 

exempt from review by the Office of 

Management and Budget as required for 

rules and regulations by Executive 

Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

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

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

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: March 22, 2007. 

William L. Wehrum, 

Acting Assistant Administrator for Air and 

Radiation. 

[FR Doc. E7–5665 Filed 3–27–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OPP–2007–0037; FRL–8118-3] 

Pesticide Registration Review; New 

Dockets Opened for Review and 

Comment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: EPA has established 

registration review dockets for the 

pesticides listed in the table in Unit 

III.A. With this document, EPA is 

opening the public comment period for 

these registration reviews. Registration 

review is EPA’s periodic review of 

pesticide registrations to ensure that 

each pesticide continues to satisfy the 

statutory standard for registration, that 


sroberts on PROD1PC70 with NOTICES