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[Federal Register Volume 76, Number 21 (Tuesday, February 1, 2011)]
[Notices]
[Pages 5586-5589]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2082]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9260-5]

California State Motor Vehicle and Nonroad Engine Pollution 
Control Standards; Mobile Cargo Handling Equipment Regulation at Ports 
and Intermodal Rail Yards; Opportunity for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of opportunity for public hearing and comment.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted regulations for mobile cargo handling equipment at 
ports and intermodal rail yards (Mobile Cargo

[[Page 5587]]

Handling Equipment). CARB's Mobile Cargo Handling Equipment 
requirements are designed to use best available control technologies to 
reduce public exposure to emissions of diesel particulate matter and 
nitrogen oxides. The requirements apply to any motorized vehicle used 
to handle cargo, including yard trucks, top handlers, side handlers, 
rubber-tired gantry cranes, forklifts, dozers, and loaders. By letter 
dated January 29, 2007, CARB has requested that EPA confirm that 
certain requirements are within-the-scope of previously granted EPA 
waivers and authorizations under the Clean Air Act, and grant a new 
full authorization pursuant to the Clean Air Act for other requirements 
that are applicable to nonroad engines. This notice announces that EPA 
has tentatively scheduled a public hearing to consider California's 
Mobile Cargo Handling Equipment request and that EPA is now accepting 
written comment on the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on Thursday, February 17, 2011, at 1 p.m. EPA will hold a 
hearing only if any party notifies EPA by February 7, 2011, expressing 
its interest in presenting oral testimony. By February 11, 2011, any 
person who plans to attend the hearing may call David Alexander at 
(202) 343-9540, to learn if a hearing will be held or may check the 
following webpage for an update: http://www.epa.gov/otaq/cafr.htm.
    Parties wishing to present oral testimony at the public hearing 
should provide written notice to David Alexander at the e-mail address 
noted below. If EPA receives a request for a public hearing, that 
hearing will be held in Room 1332A of the Ariel Rios North Building, 
which is located at 1200 Pennsylvania Avenue, NW., Washington, DC 
20004.
    If EPA does not receive a request for a public hearing, then EPA 
will not hold a hearing, and instead consider CARB's request based on 
written submissions to the docket. Any party may submit written 
comments until March 17, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0862, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2010-0862, U.S. Environmental Protection Agency, Mailcode: 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.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID No. EPA-HQ-OAR-2010-0862. EPA's policy is that all 
comments we receive 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 or e-mail. 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 send an e-mail comment 
directly to EPA without going through http://www.regulations.gov, your 
e-mail address will automatically be captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. 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 additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation Docket and 
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2010-0862. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Air and 
Radiation Docket in the EPA Headquarters Library, EPA West Building, 
Room 3334, located at 1301 Constitution Avenue, NW., Washington, DC. 
The Public Reading Room is open to the public on all federal government 
work days from 8:30 a.m. to 4:30 p.m.; generally, it is open Monday 
through Friday, excluding holidays. The telephone number for the 
Reading Room is (202) 566-1744. The Air and Radiation Docket and 
Information Center's Web site is http://www.epa.gov/oar/docket.html. 
The electronic mail (e-mail) address for the Air and Radiation Docket 
is: a-and-r-Docket@epa.gov, the telephone number is (202) 566-1742, and 
the fax number is (202) 566-9744. 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, enter EPA-HQ-OAR-2010-0862, in the ``Enter Keyword or ID'' fill-
in box to view documents in the record. 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's Office of Transportation and Air Quality also maintains a 
webpage that contains general information on its review of California 
waiver requests. Included on that page are links to prior waiver and 
authorization Federal Register notices; the page can be accessed at 
http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Alexander, Compliance and 
Innovative Strategies Division, U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: 
(202) 343-9540. Fax: (202) 343-2800. E-mail: alexander.david@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. California's Mobile Cargo Handling Requirements for Equipment at 
Ports and Intermodal Rail Yards

    In a letter dated January 29, 2007, CARB submitted to EPA its 
request pursuant to section 209 of the Clean Air Act (``CAA'' or ``the 
Act''), regarding its regulations for Mobile Cargo Handling Equipment 
at Ports and Intermodal Rail Yards (``Mobile Cargo Handling Equipment'' 
or ``CHE''). CARB's Mobile Cargo Handling Equipment regulations were 
adopted at CARB's December 8, 2005 public hearing (by Resolution 05-62) 
and were subsequently modified

[[Page 5588]]

after making the regulation available for supplemental public comment 
by CARB's Executive Officer in Executive Order R-06-007 on June 2, 
2006. The Mobile Cargo Handling Equipment regulations are codified at 
title 12, California Code of Regulations section 2479.
    CARB's Mobile Cargo Handling Equipment regulations establish best 
available control technology (BACT) requirements that affect the 
sellers, renters, lessors, owners, and operators of mobile cargo 
handling equipment that are used at California's ports or intermodal 
rail yards. For newly purchased, leased, or rented equipment, certified 
on-road engines would be required if available for the specific 
equipment type and application. Otherwise, the highest level certified 
off-road engine would be required, along with installation of the 
highest level verified diesel emission control strategy (VDECS) within 
one year of purchase, lease, or rent, or within six months of becoming 
available, if after a year. The regulations require in-use yard trucks 
to meet BACT performance standards primarily through accelerated 
turnover of older yard trucks to those equipped with cleaner, on-road 
engines (2007 model year or later). Owners or operators who have 
installed VDECS prior to the end of 2006, or who are already using 
certified on-road engines, are given additional time to comply. In 
addition, compliance is phased in for owners or operators who have more 
than three yard trucks in their fleet.
    Equipment other than yard trucks (non-yard trucks) would also be 
required to meet BACT, constituting replacement by cleaner on-road or 
off-road engines and/or the use of retrofits. When retrofits are used, 
replacement with Tier 4 off-road engines or installation of a Level 3 
VDECS (which achieves an eighty-five percent reduction of emissions of 
diesel particulate matter) is required for some equipment. The Mobile 
Cargo Handling Equipment regulations also include recordkeeping and 
reporting requirements for owners and operators of mobile cargo 
handling equipment.

II. Clean Air Act New Motor Vehicle and Engine Waivers of Preemption

    Section 209(a) of the Clean Air Act preempts states and local 
governments from setting emission standards for new motor vehicles and 
engines; it provides:

    No State or any political subdivision thereof shall adopt or 
attempt to enforce any standard relating to the control of emissions 
from new motor vehicles or new motor vehicle engines subject to this 
part. No state shall require certification, inspection or any other 
approval relating to the control of emissions from any new motor 
vehicle or new motor vehicle engine as condition precedent to the 
initial retail sale, titling (if any), or registration of such motor 
vehicle, motor vehicle engine, or equipment.

    Through operation of section 209(b) of the Act, California is able 
to seek and receive a waiver of section 209(a)'s preemption. If certain 
criteria are met, section 209(b)(1) of the Act requires the 
Administrator, after notice and opportunity for public hearing, to 
waive application of the prohibitions of section 209(a). Section 
209(b)(1) only allows a waiver to be granted for any State that had 
adopted standards (other than crankcase emission standards) for the 
control of emissions from new motor vehicles or new motor vehicle 
engines prior to March 30, 1966, if the State determines that its 
standards will be, in the aggregate, at least as protective of public 
health and welfare as applicable Federal standards (i.e., if such State 
makes a ``protectiveness determination''). Because California was the 
only state to have adopted standards prior to 1966, it is the only 
state that is qualified to seek and receive a waiver.\1\ The 
Administrator must grant a waiver unless she finds that: (A) 
California's above-noted ``protectiveness determination'' is arbitrary 
and capricious; \2\ (B) California does not need such State standards 
to meet compelling and extraordinary conditions; \3\ or (C) 
California's standards and accompanying enforcement procedures are not 
consistent with section 202(a) of the Act.\4\ EPA has previously stated 
that consistency with section 202(a) requires that California's 
standards must be technologically feasible within the lead time 
provided, giving due consideration of costs, and that California and 
applicable Federal test procedures be consistent.\5\
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    \1\ See S.Rep. No. 90-403 at 632 (1967).
    \2\ Clean Air Act (CAA) section 209(b)(1)(A).
    \3\ CAA section 209(b)(1)(B).
    \4\ CAA section 209(b)(1)(C).
    \5\ See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and 
Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 1095, 
1126 (D.C.Cir. 1979).
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III. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Act permanently preempts 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.
    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 the control of emissions 
from new engines not listed under section 209(e)(1), if certain 
criteria are met. EPA has promulgated regulations implementing these 
provisions at 40 CFR part 1074. These regulations set forth the 
criteria that EPA must consider before granting California 
authorization to enforce its new nonroad emission standards. Title 40 
of the Code of Federal Regulations, part 1074.105 provides:

    (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 from California to authorize the 
state 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.

    As stated in the preamble to the section 209(e) 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).\6\
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    \6\ See 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

[[Page 5589]]

if she 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.

IV. Within-the-Scope Determinations

    If California amends regulations that were previously granted a 
waiver of preemption or authorization, EPA can confirm that the amended 
regulations are within-the-scope of the previously granted waiver or 
authorization. Such within-the-scope amendments are permissible without 
a full waiver review if three conditions are met. First, the amended 
regulations must not undermine California's determination that its 
standards, in the aggregate, are as protective of public health and 
welfare as applicable federal standards. Second, the amended 
regulations must not affect consistency with section 202(a) of the Act. 
Third, the amended regulations must not raise any ``new issues'' 
affecting EPA's prior waivers or authorizations.

V. EPA's Request for Public Comment

    When EPA receives a new waiver or authorization request from CARB, 
EPA traditionally publishes a notice of opportunity for public hearing 
and comment, and then publishes a decision in the Federal Register 
following the conclusion of the comment period. In contrast, when EPA 
receives a request from CARB for a within-the-scope confirmation, EPA 
may publish a decision in the Federal Register and concurrently invite 
public comment if an interested party is opposed to EPA's decision.
    Because CARB's request regarding its Mobile Cargo Handling 
Equipment regulations includes both within-the-scope confirmation 
requests and a request for a full authorization, EPA is inviting 
comment on several issues. First, we request comment on which criteria 
we should apply to the various provisions included within CARB's Mobile 
Cargo Handling Equipment regulations. More specifically, we are 
requesting comment on whether any of the particular regulatory 
provisions included in CARB's request should be considered as within-
the-scope of previous EPA waivers or authorizations, and which 
particular regulatory provisions should be so considered, or whether 
EPA should consider all of the regulatory provisions as requiring a 
full waiver or authorization. Next, we seek comment on application of 
the appropriate criteria. To the extent that a commenter believes a 
regulatory provision is within-the-scope, they should also comment on 
how EPA should apply its within-the-scope criteria; alternatively, 
should a commenter believe that a particular regulatory provision 
requires a full waiver or authorization, we request comment on whether 
California has met the criteria for receipt of a full waiver or 
authorization.
    Within the context of a within-the-scope analysis, EPA invites 
comment on whether California's Mobile Cargo Handling Equipment 
requirements: (1) 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, (2) affect the 
consistency of California's requirements with section 202(a) of the 
Act, and (3) raise any other new issues affecting EPA's previous waiver 
or authorization determinations.
    As stated above, EPA is also requesting comment on issues relevant 
to a full waiver and authorization analyses, in the event that EPA 
determines that any of California's standards should not be considered 
within-the-scope of CARB's previous waivers and authorizations, and 
instead require a full waiver or authorization analysis. Specifically, 
we request comment on: (a) Whether CARB's determination that its 
standards, in the aggregate, are at least as protective of public 
health and welfare as applicable federal standards is arbitrary and 
capricious, (b) whether California needs such standards to meet 
compelling and extraordinary conditions, and (c) whether California's 
standards and accompanying enforcement procedures are consistent with 
section 209 of the Act.

VI. 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 March 17, 2011. 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 she deems pertinent. 
All information will be available for inspection at the EPA Air Docket 
No. EPA-HQ-OAR-2010-0862.
    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: January 25, 2011.
Margo T. Oge,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2011-2082 Filed 1-31-11; 8:45 am]
BILLING CODE 6560-50-P
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