Federal Register / Vol. 62, No. 249 / Tuesday, December 30, 1997 / Rules and Regulations 67733

1 58 FR 28809 (May 17, 1993).

2Section 302(z) states that the ‘‘term ‘stationary

source’ means generally any source of an air

pollutant except those emissions resulting directly

from an internal combustion engine for

transportation purposes or from a nonroad engine

or nonroad vehicle as defined in section 216.’’

Dated: October 31, 1997.

R. Richard Newcomb,

Director, Office of Foreign Assets Control.

Approved:

James E. Johnson,

Assistant Secretary (Enforcement),

Department of the Treasury.

[FR Doc. 97–33840 Filed 12–23–97; 10:46

am]

BILLING CODE 4810–25–F

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 85 and 89

[AMS–FRL–5939–5]

Control of Air Pollution: Emission

Standards for New Nonroad

Compression-Ignition Engines at or

Above 37 Kilowatts; Preemption of

State Regulation for Nonroad Engine

and Vehicle Standards; Amendments

to Rules

AGENCY: Environmental Protection

Agency.

ACTION: Direct final rule.

SUMMARY: This direct final rulemaking,

consistent with an order and opinion

from the U.S. Court of Appeals for the

District of Columbia Circuit, amends

EPA’s regulations setting emission

standards for large (at or above 37

kilowatts) nonroad compression ignition

engines, and EPA’s regulations

establishing procedures for EPA

authorization of California nonroad

emission standards. Specifically, EPA is

withdrawing portions of an interpretive

rule which set forth the Agency’s

position on the Clean Air Act (Act)

regarding the status of certain internal

combustion engines manufactured

before the effective date of the final

rulemaking promulgating EPA’s

definition of nonroad engine.

Additionally, consistent with the D.C.

Circuit opinion, EPA also is amending

the remaining text of this interpretive

rule, as well as EPA’s regulations issued

under section 209(e) of the Act

regarding the Agency’s California

nonroad standards authorization

process, to clarify that California must

seek authorization from EPA prior to

enforcing standards and other

requirements relating to emissions from

any nonroad vehicles or engines, and

not just new nonroad vehicles and

engines, which was the original

language used in these regulations.

DATES: This direct final rule is effective

on March 2, 1998 unless notice is

received by January 29, 1998 that any

person wishes to submit adverse

comments and/or request a hearing.

Should EPA receive such notice, EPA

will publish a timely document in the

Federal Register withdrawing this

direct final rule. Any party who sends

EPA notice of intent to submit adverse

comments must in turn submit the

adverse comments by March 2, 1998,

unless a hearing is requested. Any party

objecting to this direct final rule, at the

time it notifies EPA of its intent to

submit adverse comments, can request

EPA to hold a public hearing on this

action. If a hearing is requested, it will

take place on March 2, 1998, and

interested parties will have an

additional 30 days after the hearing

(until March 30, 1998) to submit

comments on any information presented

at the hearing. Because no hearing will

occur absent a request for one,

interested parties should contact Robert

M. Doyle at the number listed below

after January 29, 1998 to determine

whether a hearing will take place.

ADDRESSES: Written comments should

be submitted (in duplicate if possible)

to: Air Docket Section (6102), Attention:

Docket No. A–91–24, U.S.

Environmental Protection Agency, 401

M Street, S.W., Washington, D.C. 20460,

or hand-delivered to the Air Docket at

the above address, in Room M–1500,

Waterside Mall. A copy of written

comments should also be submitted to

Robert M. Doyle at the address below.

FOR FURTHER INFORMATION CONTACT:

Robert M. Doyle, Attorney/Advisor,

Engine Programs and Compliance

Division (6403J), U.S. Environmental

Protection Agency, 401 M. Street, S.W.,

Washington, D.C. 20560, (202) 564–

9258, FAX (202) 233–9596, E-Mail,

Doyle.Robert@EPAMAIL.EPA.GOV.

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

Entities potentially regulated by this

direct final rule are the California Air

Resources Board and other state air

quality agencies. Regulated categories

and entities include:

Category Examples of regulated entities

State and local government.California Air Resources Board.

State and local air

quality agencies.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. If you have questions

regarding the applicability of this action

to a particular product, consult the

person listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

II. Obtaining Electronic Copies of

Documents

Electronic copies of the preamble and

the regulatory text of this direct final

rule are available via the Internet on the

Office of Mobile Sources (OMS) Home

Page (http://www.epa.gov/OMSWWW/).

Users can find these documents and

other nonroad engine and vehicle

related information and documents by

accessing the OMS Home Page and

looking at the path entitled ‘‘Nonroad

engines and vehicles.’’ This service is

free of charge, except for any cost you

already incur for Internet connectivity.

The official Federal Register version is

made available 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.

III. Legal Authority and Background

Authority for the actions set forth in

this direct final rule is granted to EPA

by sections 209, 213, and 301 of the

Clean Air Act as amended (42 U.S.C.

7543, 7547, and 7601).

A. Amendments and Redesignation of

Appendix Containing Interpretive Rule

on Date and Scope of Nonroad

Preemption

On May 17, 1993, EPA proposed rules

setting standards for emissions from

nonroad compression ignition engines

at or above 37 kilowatts (approximately

50 horsepower) in power (large nonroad

engine rule).1 In this NPRM, EPA was

faced with the question (among many

issues) of the manner and the extent to

which states could regulate nonroad

engines, which some states and

localities previously had regulated as

stationary sources. EPA noted that while

emissions from nonroad engines are

excluded from the Act’s section 302(z)

definition of stationary source,2 the

exclusion would apply only to those

nonroad internal combustion engines

that are manufactured after the effective
67734 Federal Register / Vol. 62, No. 249 / Tuesday, December 30, 1997 / Rules and Regulations

3Section 209(e)(2)(A) directs EPA to authorize

California to adopt and enforce standards and other

requirements for nonroad engines and nonroad

vehicles (with some categorical exceptions) if

California’s regulations meet the criteria set forth in

the Act. Other states may adopt EPA-authorized

California nonroad engine or vehicle standards if

the states comply with the criteria listed in section

209(e)(2)(B).

4 59 FR 31306 (June 17, 1994).

5EMA v. EPA, 88 F.3d 1075, 1093–94 (D.C. Cir.

1996).

6 59 FR 36969, 36973 (July 20, 1994).

7 40 CFR 86.1604(a) (July 1, 1996).

date of the large nonroad engine rule.

EPA also noted that nonroad engines

may be subject to state-imposed in-use

restrictions such as limits on hours of

use and may be subject to state

regulation under section 209(e)(2).3

During the rulemaking, EPA received

comments from several parties objecting

to its interpretation of the correct

effective date. These parties generally

asserted that the language in section

302(z) applied to all nonroad engines in

existence on or after November 15,

1990, the date of the enactment of the

Clean Air Act Amendments of 1990

(CAAA). The effect of this assertion

would be that states would be

preempted from promulgating emission

standards or other requirements for

nonroad engines produced after that

date.

On June 17, 1994, EPA published a

final rule 4 setting the standards for the

large nonroad compression ignition

engines; the effective date for this rule

was July 18, 1994, 30 days after its

Federal Register publication. In that

rule, EPA finalized the definition of

‘‘nonroad engine,’’ which determined

whether certain engines should be

considered ‘‘nonroad engines’’ or

‘‘stationary sources.’’ After careful

consideration of the comments on the

rule’s preemption date briefly

summarized above, EPA added an

interpretive rule in the form of an

appendix (Appendix A) to the

regulations summarizing EPA’s

decisions on these preemption issues. In

Appendix A, EPA noted basically that it

interprets the Act as not precluding

state regulation of internal combustion

engines manufactured prior to July 18,

1994, except that state regulation of

such engines that are used in motor

vehicles or vehicles used solely for

competition is precluded. Additionally,

EPA noted that it believes that states are

not precluded under section 209 of the

Act from regulating the use and

operation of nonroad engines. Appendix

A has been codified as part of the large

nonroad engine rule and appears in the

current volume of 40 CFR part 89 (July

1, 1996).

On or before August 16, 1994, nine

parties timely filed petitions with the

United States Court of Appeals for the

D.C. Circuit for review of the large

nonroad engine rule, and of the related

rule establishing the scope of

preemption of state or local standards

regulating nonroad engines and the

procedures that California must follow

when seeking EPA authorization to

adopt and enforce California-specific

nonroad engine standards under section

209(e) of the Act. These nine petitions

were consolidated as Engine

Manufacturers Association, et. al., v.

EPA, Docket No. 94–1558, (EMA v.

EPA). The petitioners challenged several

aspects of these rules, including the

EPA interpretation contained in

Appendix A. After preliminary

discussions with petitioners, EPA

decided that it was appropriate to

review its interpretation that

preemption of state and local

regulations did not effect engines

manufactured prior to July 18, 1994.

Therefore, on September 19, 1995, EPA

filed with the Court a Motion for

Vacatur and Remand of its

interpretation. The consolidated

petitioners did not oppose EPA’s

Motion.

On October 20, 1995, the Court

granted EPA’s Motion and ordered that

paragraphs 1 and 2 of Appendix A be

vacated and remanded to the Agency for

further consideration. Today’s direct

final rule implements the order of the

Court by removing paragraphs 1 and 2

from Appendix A, and retitling

Appendix A to be descriptive of its

revised content.

EPA notes that although paragraphs 1

and 2 of Appendix A are now vacated,

paragraph 3 remains effective, though

this rule revises that paragraph. This

paragraph, which appears in the revised

text of Appendix A, contains EPA’s

determination that states are not

precluded from regulating the use of

nonroad engines. On July 12, 1996, the

Court handed down its decision in EMA

v. EPA, and held that EPA had made a

reasonable interpretation of the Act in

finding that the preemption of state

regulations did not extend to

restrictions on the use of nonroad

engines.5 EPA, however, has deleted the

last two sentences of paragraph 3 and

added a new sentence consistent with

the Court’s ruling on the scope of

implied preemption of state standards,

discussed in detail in Section B. below.

B. Scope of Implied Preemption of State

Standards

Under section 209(e) of the Act as

amended, EPA was required to ‘‘issue

regulations to implement’’ subsection

(e), which addressed the ability of states

to adopt emission standards and other

requirements for nonroad engines and

vehicles. Under section 209(e): (1) All

states are preempted from adopting

emission standards and other

requirements for new nonroad engines

used in construction or farm equipment

or vehicles which are smaller than 175

horsepower and for new locomotives

and new engines used in locomotives;

(2) California may adopt and enforce

standards and other requirements for

nonroad engines other than the

specifically preempted categories listed

directly above, after receiving

authorization to do so from EPA; and (3)

other states may adopt California’s

nonroad emission standards and other

requirements after EPA has authorized

the standards and other requirements

and the adopting state has allowed the

statutorily required two-year leadtime.

On July 20, 1994, EPA promulgated

regulations which established the

process under which the Agency would

authorize California nonroad emission

standards and other requirements

(section 209(e) regulations). During the

rulemaking, EPA addressed the issue of

the scope of the Act’s preemption on

state regulation of nonroad engines and

vehicles. Section 209(e)(2) directs EPA

to authorize, when all conditions are

met, California emission standards for

‘‘any nonroad vehicles or engines other

than [the new under 175 hp farm and

construction equipment engines and the

new locomotive engines] * * *

(emphasis added).’’ EPA interpreted the

implied preemption of state standards

in section 209(e) to apply only to new

nonroad engines rather than any

nonroad engines, which could include

both new and used engines. In the

Preamble to these regulations, EPA

stated clearly that it believed ‘‘that the

requirements of section 209(e)(2) apply

only to new nonroad engines and

vehicles (emphasis added).’’ 6

Accordingly, the regulations required

California to seek EPA authorization

only for ‘‘standards and other

requirements relating to the control of

emissions from new nonroad vehicles or

engines that are otherwise not

preempted.’’ 7

As discussed above, petitions to the

D.C. Circuit for review of the section

209(e) regulations and the large nonroad

engine rule were filed and consolidated

as EMA v. EPA. In this litigation, the

petitioners agreed with EPA that section

209(e)(2) implied preemption of state

regulation of nonroad engines and

vehicles, but argued that the preemption

applied to standards for all nonroad
Federal Register / Vol. 62, No. 249 / Tuesday, December 30, 1997 / Rules and Regulations 67735

8Section 209(e)(2)(A) states ‘‘(I)n the case of any

nonroad vehicles or engines other than those

referred to in subparagraph (A) or (B) of paragraph

(1), * * *’’

9EMA v. EPA, 88 F.3d at 1094.

10EPA has also amended the text of the

implementing regulations in appropriate places by

changing ‘‘states’’ to ‘‘states and any political

subdivision thereof’’ to make this language fully

consistent with the applicable language of section

209(e) of the Act. Additionally, EPA has revised the

Title of Part 85 to reflect that this Part contains

regulations covering both onroad vehicles and

engines and nonroad vehicles and engines. These

amendments were not directed by the Court, but are

being done as part of today’s direct final rule for

editorial efficiency.

sources, both new and non-new,

because the statute did not include the

word ‘‘new’’ in specifying what nonroad

vehicles and engines for which

California and other states could

promulgate standards,8 and for other

reasons. In its opinion in this case

handed down July 12, 1996, the Court

agreed with the petitioners on this

particular point, and granted the EMA

petition ‘‘insofar as they challenge the

limitation of the implied section

209(e)(2) preemption to new nonroad

sources.’’ 9

Today’s direct final rule implements

the opinion of the Court regarding the

scope of preemption of section 209(e)(2)

by amending the language of the

implementing regulations to reflect that

California must request authorization

for its emission standards and other

related requirements for all nonroad

vehicles and engines.10 EPA has also

deleted the final two sentences of

Appendix A, dealing with the ability of

states to require retrofit technologies, as

the language as currently written is

inconsistent with the opinion of the

Court, and added a sentence which

reflects the Court’s holding by noting

that states may adopt only those retrofit

requirements for nonroad engines

identical to California requirements

which have been authorized by EPA

under section 209 of the Act. EPA has

also modified the language of Appendix

A to state more simply and clearly that

state regulation of the use and operation

of nonroad engines can occur when the

engines are no longer new.

C. Public Participation and Effective

Date

EPA is publishing this rule without

prior proposal because EPA views these

amendments as noncontroversial and

anticipates no adverse comments.

However, in the event that adverse or

critical comments are filed, EPA has

prepared a Notice of Proposed

Rulemaking (NPRM) proposing the same

amendments. This NPRM is contained

in a separate document in this Federal

Register publication. The direct final

action will be effective March 2, 1998

unless adverse or critical comments are

received by January 29, 1998. If EPA

receives adverse or critical comments on

the revisions discussed in this section,

the revisions receiving adverse

comment will be withdrawn before the

effective date. In case of the withdrawal

of all or part of this action, the

withdrawal will be announced by a

subsequent Federal Register document.

All public comments will then be

addressed in a subsequent final rule

based on the accompanying proposed

rule. EPA will not implement a second

comment period on this action. Any

parties interested in commenting on this

rule should do so at this time. If no

adverse comments are received, the

public is advised that the rule will be

effective March 2, 1998.

EPA is continuing to review its policy

concerns and options regarding the date

of preemption for the nonroad engine

rules. EPA may in the future determine

that it is appropriate to issue a new

interpretation to address this issue.

IV. Administrative Requirements

A. Administrative Designation

Under Executive Order 12866 (58 FR

51735 (October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the economy

of $100 million or more or adversely affect

in a material way the economy, a sector of

the economy, productivity, competition, jobs,

the environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken or

planned by another agency;

(3) Materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or,

(4) Raise novel legal or policy issues

arising out of legal mandates, the President’s

priorities, or the principles set forth in the

Executive Order.

It has been determined that this rule

is not a ‘‘significant regulatory action’’

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

B. Reporting and Recordkeeping

Requirements

This rule does not change the

information collection requirements

submitted to and approved by OMB in

association with the large nonroad

engine final rulemaking (59 FR 31306,

June 17, 1994).

C. Regulatory Flexibility

EPA has determined that it is not

necessary to prepare a regulatory

flexibility analysis in connection with

this final rule. This rule will not have

a significant adverse economic impact

on a substantial number of small

businesses. The only revisions EPA is

making in this final rule are pursuant to

the decision of the Court. These changes

are directed at state and local

governments and are expected to affect

few, if any, existing or future local or

state regulations.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

E. Unfunded Mandates Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under Section

205, EPA must select the most cost

effective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more to either State, local, or

tribal governments in the aggregate, or

to the private sector.

List of Subjects

40 CFR Part 85

Environmental protection,

Administrative practice and procedure,

Air pollution control, Federal

preemption, Motor vehicle pollution,

Nonroad engine and vehicle pollution,
67736 Federal Register / Vol. 62, No. 249 / Tuesday, December 30, 1997 / Rules and Regulations

Reporting and recordkeeping

requirements, State controls.

40 CFR Part 89

Environmental protection,

Administrative practice and procedure,

Air pollution control, Confidential

business information, Imports,

Incorporation by reference, Labeling,

Nonroad source pollution, Reporting

and recordkeeping requirements.

Dated: December 17, 1997.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, parts 85 and 89 of title 40 of

the Code of Federal Regulations are

amended as follows:

PART 85—CONTROL OF AIR

POLLUTION FROM MOBILE SOURCES

1. The heading for part 85 is revised

to read as set forth above.

Subpart Q—Preemption of State

Standards and Waiver Procedures for

Nonroad Engines and Nonroad

Vehicles

2. The authority citation for part 85 is

revised to read as follows:

Authority: 42 U.S.C. 7521, 7522, 7524,

7525, 7541, 7542, 7543, 7547, and 7601(a).

3. Section 85.1603 is amended by

revising paragraphs (b), (c) and (d) to

read as follows:

§ 85.1603 Application of definitions; scope

of preemption.

* * * * *

(b) States and any political

subdivisions thereof are preempted from

adopting or enforcing standards or other

requirements from new engines smaller

than 175 horsepower, that are primarily

used in farm or construction equipment

or vehicles, as defined in this subpart.

(c) States and any political

subdivisions thereof are preempted from

adopting or enforcing standards or other

requirements relating to the control of

emissions from new locomotives or new

engines used in locomotives.

(d) No state or any political

subdivisions thereof shall enforce any

standards or other requirements relating

to the control of emissions from

nonroad engines or vehicles except as

provided for in this subpart.

4. Section 85.1604 is amended by

revising paragraph (a) to read as follows:

§ 85.1604 Procedures for California

nonroad authorization requests.

(a) California shall request

authorization to enforce its adopted

standards and other requirements

relating to the control of emissions from

nonroad vehicles or engines that are

otherwise not preempted by

§ 85.1603(b) or § 85.1603(c) from the

Administrator of EPA and provide the

record on which the state rulemaking

was based.

* * * * *

5. Section 85.1606 is amended by

revising the introductory text to read as

follows:

§ 85.1606 Adoption of California standards

by other states.

Any state other than California which

has plan provisions approved under

Part D of Title I of the Clean Air Act may

adopt and enforce emission standards

for any period, for nonroad vehicles and

engines subject to the following

requirements:

* * * * *

PART 89—CONTROL OF EMISSIONS

FROM NEW AND IN-USE NONROAD

ENGINES

1. The authority citation for part 89

continues to read as follows:

Authority: Sections 202, 203, 204, 205,

206, 207, 208, 209, 213, 215, 216, and 301(a)

of the Clean Air Act, as amended (42 U.S.C.

7521, 7522, 7523, 7524, 7525, 7541, 7542,

7543, 7547, 7549, 7550, and 7601(a)).

2. Appendix A to Subpart A is revised

including the appendix heading to read

as follows:

Appendix A to Subpart A—State

Regulation of Nonroad Internal

Combustion Engines

This appendix sets forth the Environmental

Protection Agency’s (EPA’s) interpretation of

the Clean Air Act regarding the authority of

states to regulate the use and operation of

nonroad engines.

EPA believes that states are not precluded

under section 209 from regulating the use

and operation of nonroad engines, such as

regulations on hours of usage, daily mass

emission limits, or sulfur limits on fuel; nor

are permits regulating such operations

precluded, once the engine is no longer new.

EPA believes that states are precluded from

requiring retrofitting of used nonroad engines

except that states are permitted to adopt and

enforce any such retrofitting requirements

identical to California requirements which

have been authorized by EPA under section

209 of the Clean Air Act.

[FR Doc. 97–33769 Filed 12–29–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 260

[FRL 5942–5]

Withdrawal of Direct Final Rule for

Project XL Site-Specific Rulemaking

for Molex, Inc., 700 Kingbird Road

Facility, Lincoln, NE

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: Due to adverse comment, EPA

is withdrawing the direct final rule for

the Project XL Site-Specific Rulemaking

for Molex, Inc., 700 Kingbird Road

Facility, Lincoln, NE. EPA published

the direct final rule on November 3,

1997 at 62 FR 59287–59290. As stated

in the Federal Register document, if

adverse or critical comments were

received by December 3, 1997 the

effective date would be delayed and

notice would be published in the

Federal Register. EPA subsequently

received adverse comments on that

direct final rule.

EPA will address the comments

received in the companion proposal

which was published in the November

3, 1997 Federal Register at 62 FR

59332–59334. EPA will not institute a

second comment period.

DATES: The direct final rule published at

62 FR 59287–59290 is withdrawn as of

December 30, 1997.

FOR FURTHER INFORMATION CONTACT:

Mr. David Doyle, U.S. Environmental

Protection Agency, Region VII, Air,

RCRA & Toxics Division, 726 Minnesota

Avenue, Kansas City, KS 66101, (913)

551–7667.

List of Subjects in 40 CFR Part 260

Environmental protection, Hazardous

waste, Treatment storage and disposal

facility, Waste determination.

Dated: December 19, 1997.

Carol M. Browner,

Administrator.

[FR Doc. 97–33967 Filed 12–29–97; 8:45 am]

BILLING CODE 6560–50–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 300

[FRL–5941–3]

National Oil and Hazardous

Substances Pollution Contingency

Plan; National Priorities List Update

AGENCY: Environmental Protection

Agency.