Partial Removal of Direct Final Rule and Revision of the Nonroad Diesel Technical Amendments and Tier 3 Technical Relief Provision, 72955-72958 [E7-24976]
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not have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
approves a State rule implementing a
Federal standard. It does not alter the
relationship or the distribution of power
and responsibilities established in the
CAA. This action also is not subject to
Executive Order 13045 ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it approves a
State rule implementing a Federal
standard.
Executive Order 12898, ‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations,’’ requires
Federal agencies to consider the impact
of programs, policies, and activities on
minority populations and low-income
populations. EPA guidance 1 states that
EPA is to assess whether minority or
low-income populations face risk or a
rate of exposure to hazards that is
significant and that ‘‘appreciably
exceed[s] or is likely to appreciably
exceed the risk or rate to the general
population or to the appropriate
comparison group.’’ (EPA, 1998)
Because this rule merely approves a
state rule implementing the Federal
standard established by CAMR, EPA
lacks the discretionary authority to
modify today’s regulatory decision on
the basis of environmental justice
considerations. However, EPA has
already considered the impact of CAMR,
including this Federal standard, on
minority and low-income populations.
In the context of EPA’s CAMR
published in the Federal Register on
May 18, 2005, in accordance with
Executive Order 12898, the Agency has
considered whether CAMR may have
disproportionate negative impacts on
minority or low income populations and
determined it would not.
In reviewing State Plan submissions,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a State Plan for failure to
use VCS. It would thus be inconsistent
with applicable law for EPA, when it
reviews a State Plan submission, to use
1 U.S.
Environmental Protection Agency, 1998.
Guidance for Incorporating Environmental Justice
Concerns in EPA’s NEPA Compliance Analyses.
Office of Federal Activities, Washington, DC, April,
1998.
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18:48 Dec 21, 2007
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VCS in place of a State Plan submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501, et seq.).
The Congressional Review Act, 5
U.S.C. 801, et seq., as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit 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 United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by February 25, 2008. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this rule for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in Part 62
Environmental protection, Air
pollution control, Electric utilities,
Intergovernmental relations, Mercury,
Reporting and recordkeeping.
Dated: December 14, 2007.
John B. Askew,
Regional Administrator, Region 7.
Chapter I, title 40 of the Code of
Federal Regulations is amended as
follows:
I
PART 62—[AMENDED]
1. The authority citation for part 62
continues to read as follows:
I
Authority: 42 U.S.C. 7401, et seq.
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72955
Subpart Q—Iowa
2. Subpart Q is amended by adding an
undesignated center heading and
§ 62.3918 to read as follows:
I
Mercury Emissions From Coal-Fired
Electric Steam Generating Units
§ 62.3918
Identification of Plan.
(a) Identification of plan. Section
111(d) plan and associated State
regulations as adopted in the Iowa
Administrative Bulletin on June 7, 2006,
page 1811 and associated amendments
on February 28, 2007, page 1157.
(b) Identification of sources. The plan
applies to all new and existing mercury
budget units meeting the applicability
requirements in Iowa’s State rule 567–
34.301.
(c) Effective date. The effective date
for the portion of the plan applicable to
mercury budget units as described in
Iowa State rule 567–34.301 is January
25, 2008.
[FR Doc. E7–24962 Filed 12–21–07; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 89
[EPA–HQ–OAR–2007–0652; FRL–8509–9]
RIN 2060–A037
Partial Removal of Direct Final Rule
and Revision of the Nonroad Diesel
Technical Amendments and Tier 3
Technical Relief Provision
Environmental Protection
Agency (EPA).
ACTION: Final rule; partial removal;
revision.
AGENCY:
SUMMARY: Because EPA received
adverse comment, we are making a
partial withdrawal and revision of the
direct final rule for ‘‘Nonroad Diesel
Technical Amendments and Tier 3
Technical Relief Provision’’ published
on September 18, 2007.
DATES: This rule and partial withdrawal
are effective December 26, 2007.
FOR FURTHER INFORMATION CONTACT:
Zuimdie Guerra, Assessment and
Standards Division, Office of
Transportation and Air Quality, 2000
Traverwood Drive, Ann Arbor, MI,
48105; telephone number: (734) 214–
4387; fax number: (734) 214–4050; email address: guerra.zuimdie@epa.gov.
SUPPLEMENTARY INFORMATION: On
September 18, 2007 EPA published a
direct final rule for ‘‘Nonroad Diesel
Technical Amendments and Tier 3
Technical Relief Provision’’ (72 FR
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Federal Register / Vol. 72, No. 246 / Wednesday, December 26, 2007 / Rules and Regulations
53118). We stated in that direct final
rule that if we received adverse
comment by October 18, 2007, we
would publish a timely withdrawal in
the Federal Register. EPA subsequently
received adverse comments to Tier 3
technical relief provision in 40 CFR
89.102(i) through (m). Although we
were not able to accomplish this action
prior to the effective date of the direct
final rule, we are now, in light of the
adverse comment, withdrawing the
direct final rule’s revisions to 40 CFR
89.102 paragraphs (i) through (m). The
other provisions of the the direct final
rule are not affected by this partial
withdrawal and are incorporated into
the Federal Register as of the effective
date of November 18, 2007 direct final
action.
Concurrent with the direct final rule,
we published a separate notice of
proposed rulemaking, to provide for the
contingency of adverse comments on
the DFR. (72 FR 53294). We are now
issuing a final rule based on the notice
of proposed rulemaking and on
comments received. Notice and an
opportunity for additional comment on
the withdrawal of the direct final rule is
unnecessary, within the meaning of 5
U.S.C. 553(b)(B). EPA has a legal
obligation to withdraw those portions of
the direct final rule that were subject to
adverse comments[j1]. In addition, by
its terms, the direct final rule would
become effective only in the absence of
adverse comment.
[j2] In today’s final rule, EPA is
adopting the technical relief provisions
originally proposed as 40 CFR 89.102
paragraphs (i) through (m), including a
variety of modifications to address the
comments received. The main comment
EPA received was to correct an
inappropriate cross-reference in the rule
language, and this final rule corrects
this inadvertent drafting error as the
commenter properly suggested. We
made the changes the commenter
properly suggested. The provision on
technical relief is now found in
paragraph (i) exclusively.
We responded to comments that did
not require changes to the rule in a
memo to the docket. One concern of the
commenter was that manufacturers may
ask for more relief than is needed. The
rule is clear that the Agency is not
obligated to provide any amount of
technical relief if the Agency is not
convinced of the need for it. The other
concern of the commenter was that
manufacturers that use the Tier 3
technical relief may request additional
relief for Tier 4 equipment.
Manufacturers are aware of this
provision in advance of Tier 4 so
manufacturers should be able to
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reconcile their Tier 3 and Tier 4 relief
needs.
List of Subjects in 40 CFR Part 89
Environmental protection,
Administrative practice and procedure,
Air pollution control, Confidential
business information, Imports,
Penalties, Reporting and recordkeeping
requirements, Warranties.
Dated: December 17, 2007.
Stephen L. Johnson,
Administrator.
For the reasons set forth in the
preamble, title 40, chapter I of the Code
of Federal Regulations is amended as
follows:
I
PART 89—CONTROL OF EMISSIONS
FROM NEW AND IN-USE NONROAD
COMPRESSION-IGNITION ENGINES
1. The authority citation for part 89 is
continues to read as follows:
I
Authority: 42 U.S.C. 7401–7671q.
Subpart B—[Amended]
2. Section 89.102 is amended by
revising paragraph (i) and removing
paragraphs (j) through (m).
The revison reads as follows:
I
§ 89.102 Effective dates, optional
inclusion, flexibility for equipment
manufacturers.
*
*
*
*
*
(i) Additional exemptions for
technical or engineering hardship. You
may request additional engine
allowances under paragraph (d)(1) of
this section for 56–560 kW power
categories or, if you are a small
equipment manufacturer, under
paragraph (d)(2) of this section for
engines at or above 37 and below 75
kW. However, you may use these extra
allowances only for those equipment
models for which you, or an affiliated
company, do not also produce the
engine. After considering the
circumstances, we may permit you to
introduce into U.S. commerce
equipment with such engines that do
not comply with Tier 3 emission
standards, as follows:
(1) We may approve additional
exemptions if extreme and unusual
circumstances that are clearly outside
your control and that could not have
been avoided with reasonable discretion
have resulted in technical or
engineering problems that prevent you
from meeting the requirements of this
part. You must show that you exercised
prudent planning and have taken all
reasonable steps to minimize the scope
of your request for additional
allowances.
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(2) To apply for exemptions under
this paragraph (i), send the Designated
Compliance Officer and the Designated
Enforcement Officer a written request as
soon as possible before you are in
violation. In your request, include the
following information:
(i) Describe your process for designing
equipment.
(ii) Describe how you normally work
cooperatively or concurrently with your
engine supplier to design products.
(iii) Describe the engineering or
technical problems causing you to
request the exemption and explain why
you have not been able to solve them.
Describe the extreme and unusual
circumstances that led to these
problems and explain how they were
unavoidable.
(iv) Describe any information or
products you received from your engine
supplier related to equipment design—
such as written specifications,
performance data, or prototype
engines—and when you received it.
(v) Compare the design processes of
the equipment model for which you
need additional exemptions and that for
other models for which you do not need
additional exemptions. Explain the
technical differences that justify your
request.
(vi) Describe your efforts to find and
use other compliant engines, or
otherwise explain why none is
available.
(vii) Describe the steps you have taken
to minimize the scope of your request.
(viii) Include other relevant
information. You must give us other
relevant information if we ask for it.
(ix) Estimate the increased percent of
production you need for each
equipment model covered by your
request, as described in paragraph (i)(3)
of this section. Estimate the increased
number of allowances you need for each
equipment model covered by your
request, as described in paragraph (i)(4)
of this section.
(3) We may approve your request to
increase the allowances under
paragraph (d)(1) of this section, subject
to the following limitations:
(i) The additional allowances will not
exceed 50 percent for each power
category.
(ii) You must use up the allowances
under paragraph (d)(1) of this section
before using any additional allowance
under this paragraph (i).
(iii) Any allowances we approve
under this paragraph (i)(3) expire 24
months after the provisions of this
section start for a given power category.
You may use these allowances only for
the specific equipment models covered
by your request.
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Federal Register / Vol. 72, No. 246 / Wednesday, December 26, 2007 / Rules and Regulations
(4) We may approve your request to
increase the allowances for the 37–75
kW power category under paragraph
(d)(2) of this section, subject to the
following limitations:
(i) You are eligible for additional
allowances under this paragraph (i)(4)
only if you are a small equipment
manufacturer and you do not use the
provisions of paragraph (i)(3) of this
section to obtain additional allowances
for the 37–75 kW power category.
(ii) You must use up all the available
allowances for the 37–75 kW power
category under paragraph (d)(2) of this
section in a given year before using any
additional allowances under this
paragraph (i)(4).
(iii) Base your request only on
equipment you produce with engines at
or above 37 kW and below 75 kW. You
may use any additional allowances only
for equipment you produce with
engines at or above 37 kW and below 75
kW.
(iv) Any allowances we approve
under this paragraph (i)(4) expire 24
months after the provisions of this
section start for this power category.
These additional allowances are not
subject to the annual limits specified in
paragraph (d)(2) of this section. You
may use these allowances only for the
specific equipment models covered by
your request.
(v) The total allowances under
paragraph (d)(2) of this section for the
37–75 kW power category will not
exceed 700 units. The total allowances
under this paragraph (i)(4) follow the
requirements under paragraph (d)(2) of
this section for the 37–75 kW power
category and will not exceed 200 units.
Therefore, the total maximum
allowances for the 37–75 kW power
category will not exceed 900 units.
(5) For purposes of this paragraph (i),
small equipment manufacturer means
an equipment manufacturer that had
annual U.S.-directed production volume
of equipment using nonroad diesel
engines between 37 and 75 kW of no
more than 3,000 units in 2002 and all
earlier calendar years, and has 750 or
fewer employees (500 or fewer
employees for nonroad equipment
manufacturers that produce no
construction equipment or industrial
trucks). For manufacturers owned by a
parent company, the production limit
applies to the production of the parent
company and all its subsidiaries and the
employee limit applies to the total
number of employees of the parent
company and all its subsidiaries.
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(6) The following provisions for
adjusted flexibilities for Tier 4 engines
apply to equipment manufacturers that
are granted additional exemptions for
technical or engineering hardship:
(i) If you use the additional allowance
under this paragraph (i) you shall forfeit
percent of production flexibility plus
technical or engineering hardship
exemptions available for Tier 4 engines
in the amounts shown in Table 1 of this
section.
(ii) Table 1 of this section shows the
percent of production flexibility and
technical or engineering hardship
exemptions that you must forfeit for
Tier 4 engines. The amount of Tier 4
flexibility forfeited by each equipment
manufacturer depends on the percent of
production flexibility used for Tier 2
engines and the technical or engineering
hardship exemptions granted for Tier 3
engines in the proportions shown in
Table 1. For example, if you used 45
percent of your production flexibility
for Tier 2 engines, you must forfeit 2
percent of your production flexibility
for Tier 4 engines for every 1 percent of
technical or engineering hardship
flexibility granted for Tier 3 engines. In
addition you must also forfeit 1 percent
of any technical or engineering hardship
exemptions available for Tier 4 engines
for every 1 percent technical or
engineering hardship exemptions
available for Tier 3 engines. If you use
the Tier 3 technical or engineering
hardship allowances for 5 percent of
your equipment in each of two different
years, you have used a total allowance
of 10 percent. Therefore you must forfeit
a total of 20 percent of production
flexibility for Tier 4 engines plus 10
percent of any technical or engineering
hardship exemptions available for Tier
4 engines.
72957
(iii) Because the Tier 3 and Tier 4
rules have different power category
ranges, the availability of technical
relief will be further adjusted based on
the sales volume by power category.
Table 2 of this section shows the
applicable power categories for Tier 3
and Tier 4. The Tier 3 power categories
of 37kW to 75kW and 75kW to 130kW
correspond to the Tier 4 power category
of 56kW to 130kW. For the Tier 3
equipment in the 37 to 75kW category,
you must only use the sales volume for
equipment that uses engines with a
rated power greater than 56kW. For
example, if you have a Tier 3 piece of
equipment that uses a 40 kW engine, the
sales of the equipment are counted in
the Tier 4 power category of 19kW to
56kW. If you have a Tier 3 piece of
equipment that uses a 60kW engine, the
sales of the equipment are counted in
the Tier 4 power category of 56kW to
130kW. The Tier 3 power categories of
130kW to 225kW, 225kW to 450kW and
450kW to 560kW correspond to the Tier
4 power category of 130kW to 560kW.
You will need to sum the sales of the
Tier 3 power categories that correspond
to the Tier 4 power category during each
calendar year in which Tier 3 technical
relief is used. The sum of all the Tier 3
units that are produced and exempted
by the technical relief divided by the
sum of all the Tier 3 units sold in the
corresponding Tier 4 power category
will determine the percentage of Tier 4
flexibility affected. For example, if you
produce 50 units using Tier 3 technical
relief in the range of 130kW to 225kW,
and you produce 50 units using Tier 3
technical relief in the range of 225 to
450kW, and no units are produced in
the 450kW to 560kW range, and your
overall sales volume for the power
TABLE 1 OF § 89.102.—ADJUSTMENTS ranges of 130kW to 560kW in Tier 3 is
TO TIER 4 FLEXIBILITIES
400 units, the amount of Tier 3
technical relief used is 100/400 or 25
Percent of
Percent of
percent. Because you forfeit 1 percent of
Percent of use
Tier 2 production forfeit Tier 4 forfeit Tier 4 your Tier 4 technical relief for every 1
production
tech./eng.
flexibility
percent of Tier 3 technical relief used,
flexibility
exemption
then you will lose 25 percent of your
Greater than 0%
Tier 4 technical relief in the 130kW to
and up to 20%
0
1 560kW power range category. If you
Greater than
used 45 percent of your production
20% and up to
40% ...............
1
1 flexibility for Tier 2 engines, you must
forfeit 2 percent of production flexibility
Greater than
40% and up to
for Tier 4 engines for every 1 percent of
60% ...............
2
1 Tier 3 technical relief. Therefore, you
Greater than
will forfeit 50 percent of your Tier 4
60% and up to
production allowance in the 130kW to
80% ...............
3
1
560kW power range category.
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72958
Federal Register / Vol. 72, No. 246 / Wednesday, December 26, 2007 / Rules and Regulations
have sold under this section for each
TABLE 2 OF § 89.102.—CORRESPONDING TIER 3 AND TIER
POWER CATEGORIES
Tier 3
power categories
37≤kW<75* ...........................
37≤kW<75**, 75≤kW<130 ....
130≤kW<225, 225≤kW<450,
450≤kW<560.
4 power category. You may omit the
Tier 4
power
categories
19≤kW<56
56≤kW<130
130≤kW≤560
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* Applies only to use of engines rated between 37kW and 56kW by small volume
equipment manufacturers.
** Includes only equipment that uses engines
with a rated power greater than 56kw.
(iv) Manufacturers using allowances
under this paragraph (i) must comply
with the notification and reporting
requirements specified in paragraph
(i)(7) of this section.
(7) Notification and reporting. You
must notify us of your intent to use the
technical relief provisions of this
paragraph (i) and send us an annual
report to verify that you are not
exceeding the allowances, as follows:
(i) Before the first year you intend to
use the provisions of this section, send
the Designated Compliance Officer and
the Designated Enforcement Officer a
written notice of your intent, including:
(A) Your company’s name and
address, and your parent company’s
name and address, if applicable.
(B) Whom to contact for more
information.
(C) The calendar years in which you
expect to use the exemption provisions
of this section.
(D) The name and address of the
company that produces the engines you
will be using for the equipment
exempted under this section.
(E) Your best estimate of the number
of units in each power category you will
produce under this section and whether
you intend to comply under paragraph
(d)(1) or (d)(2) of this section.
(F) The number of units in each
power category you have sold in
previous calendar years under
paragraph (d) of this section.
(ii) For each year that you use the
provisions of this section, send the
Designated Compliance Officer and the
Designated Enforcement Officer a
written report by March 31 of the
following year. Include in your report
the total number of engines you sold in
the preceding year for each power
category, based on actual U.S.-directed
production information. Also identify
the percentages of U.S.-directed
production that correspond to the
number of units in each power category
and the cumulative numbers and
percentages of units for all the units you
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Jkt 214001
percentage figures if you include in the
report a statement that you will not be
using the percent-of-production
allowances in paragraph (d) of this
section.
(8) Recordkeeping. Keep the following
records of all equipment with exempted
engines you produce under this
paragraph (i) for at least five full years
after the final year in which allowances
are available for each power category:
(i) The model number, serial number,
and the date of manufacture for each
engine and piece of equipment.
(ii) The maximum power of each
engine.
(iii) The total number or percentage of
equipment with exempted engines, as
described in paragraph (d) of this
section and all documentation
supporting your calculation.
(iv) The notifications and reports we
require under paragraph (i)(7) of this
section.
(9) Equipment Labeling. Any engine
produced under this paragraph (i) must
meet the labeling requirements of 40
CFR 89.110, but add the following
statement instead of the compliance
statement in 40 CFR 89.110 (b)(10):
THIS ENGINE MEETS U.S. EPA
EMISSION STANDARDS UNDER 40
CFR 89.102. SELLING OR INSTALLING
THIS ENGINE FOR ANY PURPOSE
OTHER THAN FOR THE EQUIPMENT
FLEXIBILITY PROVISIONS OF 40 CFR
89.102 MAY BE A VIOLATION OF
FEDERAL LAW SUBJECT TO CIVIL
PENALTY.
(10) Enforcement. Producing more
exempted engines or equipment than we
allow under this paragraph (i) or
installing engines that do not meet the
applicable Tier 1 emission standards
described in § 89.112 violates the
prohibitions in § 89.1003(a)(1). You
must give us the records we require
under this paragraph (i) if we ask for
them (see § 89.1003(a)(2)).
[FR Doc. E7–24976 Filed 12–21–07; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2007–0309; FRL–8342–8]
Etoxazole; Pesticide Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: This regulation establishes
tolerances for residues of etoxazole in or
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on cherry; hop, dried cones; and
vegetable, cucurbit subgroup 9A. The
Interregional Research Project No. 4 (IR–
4) requested these tolerances under the
Federal Food, Drug, and Cosmetic Act
(FFDCA).
This regulation is effective
December 26, 2007. Objections and
requests for hearings must be received
on or before February 25, 2008, and
must be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
ADDRESSES: EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2007–0309. To access the
electronic docket, go to https://
www.regulations.gov, select ‘‘Advanced
Search,’’ then ‘‘Docket Search.’’ Insert
the docket ID number where indicated
and select the ‘‘Submit’’ button. Follow
the instructions on the regulations.gov
website to view the docket index or
access available documents. All
documents in the docket are listed in
the docket index available in
regulations.gov. Although listed in the
index, some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Sidney Jackson, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
(703) 305–7610; e-mail address:
jackson.sidney@epa.gov.
DATES:
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
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]]>Agencies
[Federal Register Volume 72, Number 246 (Wednesday, December 26, 2007)]
[Rules and Regulations]
[Pages 72955-72958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24976]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 89
[EPA-HQ-OAR-2007-0652; FRL-8509-9]
RIN 2060-A037
Partial Removal of Direct Final Rule and Revision of the Nonroad
Diesel Technical Amendments and Tier 3 Technical Relief Provision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; partial removal; revision.
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SUMMARY: Because EPA received adverse comment, we are making a partial
withdrawal and revision of the direct final rule for ``Nonroad Diesel
Technical Amendments and Tier 3 Technical Relief Provision'' published
on September 18, 2007.
DATES: This rule and partial withdrawal are effective December 26,
2007.
FOR FURTHER INFORMATION CONTACT: Zuimdie Guerra, Assessment and
Standards Division, Office of Transportation and Air Quality, 2000
Traverwood Drive, Ann Arbor, MI, 48105; telephone number: (734) 214-
4387; fax number: (734) 214-4050; e-mail address:
guerra.zuimdie@epa.gov.
SUPPLEMENTARY INFORMATION: On September 18, 2007 EPA published a direct
final rule for ``Nonroad Diesel Technical Amendments and Tier 3
Technical Relief Provision'' (72 FR
[[Page 72956]]
53118). We stated in that direct final rule that if we received adverse
comment by October 18, 2007, we would publish a timely withdrawal in
the Federal Register. EPA subsequently received adverse comments to
Tier 3 technical relief provision in 40 CFR 89.102(i) through (m).
Although we were not able to accomplish this action prior to the
effective date of the direct final rule, we are now, in light of the
adverse comment, withdrawing the direct final rule's revisions to 40
CFR 89.102 paragraphs (i) through (m). The other provisions of the the
direct final rule are not affected by this partial withdrawal and are
incorporated into the Federal Register as of the effective date of
November 18, 2007 direct final action.
Concurrent with the direct final rule, we published a separate
notice of proposed rulemaking, to provide for the contingency of
adverse comments on the DFR. (72 FR 53294). We are now issuing a final
rule based on the notice of proposed rulemaking and on comments
received. Notice and an opportunity for additional comment on the
withdrawal of the direct final rule is unnecessary, within the meaning
of 5 U.S.C. 553(b)(B). EPA has a legal obligation to withdraw those
portions of the direct final rule that were subject to adverse
comments[j1]. In addition, by its terms, the direct final rule would
become effective only in the absence of adverse comment.
[j2] In today's final rule, EPA is adopting the
technical relief provisions originally proposed as 40 CFR 89.102
paragraphs (i) through (m), including a variety of modifications to
address the comments received. The main comment EPA received was to
correct an inappropriate cross-reference in the rule language, and this
final rule corrects this inadvertent drafting error as the commenter
properly suggested. We made the changes the commenter properly
suggested. The provision on technical relief is now found in paragraph
(i) exclusively.
We responded to comments that did not require changes to the rule
in a memo to the docket. One concern of the commenter was that
manufacturers may ask for more relief than is needed. The rule is clear
that the Agency is not obligated to provide any amount of technical
relief if the Agency is not convinced of the need for it. The other
concern of the commenter was that manufacturers that use the Tier 3
technical relief may request additional relief for Tier 4 equipment.
Manufacturers are aware of this provision in advance of Tier 4 so
manufacturers should be able to reconcile their Tier 3 and Tier 4
relief needs.
List of Subjects in 40 CFR Part 89
Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Imports,
Penalties, Reporting and recordkeeping requirements, Warranties.
Dated: December 17, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons set forth in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD
COMPRESSION-IGNITION ENGINES
0
1. The authority citation for part 89 is continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart B--[Amended]
0
2. Section 89.102 is amended by revising paragraph (i) and removing
paragraphs (j) through (m).
The revison reads as follows:
Sec. 89.102 Effective dates, optional inclusion, flexibility for
equipment manufacturers.
* * * * *
(i) Additional exemptions for technical or engineering hardship.
You may request additional engine allowances under paragraph (d)(1) of
this section for 56-560 kW power categories or, if you are a small
equipment manufacturer, under paragraph (d)(2) of this section for
engines at or above 37 and below 75 kW. However, you may use these
extra allowances only for those equipment models for which you, or an
affiliated company, do not also produce the engine. After considering
the circumstances, we may permit you to introduce into U.S. commerce
equipment with such engines that do not comply with Tier 3 emission
standards, as follows:
(1) We may approve additional exemptions if extreme and unusual
circumstances that are clearly outside your control and that could not
have been avoided with reasonable discretion have resulted in technical
or engineering problems that prevent you from meeting the requirements
of this part. You must show that you exercised prudent planning and
have taken all reasonable steps to minimize the scope of your request
for additional allowances.
(2) To apply for exemptions under this paragraph (i), send the
Designated Compliance Officer and the Designated Enforcement Officer a
written request as soon as possible before you are in violation. In
your request, include the following information:
(i) Describe your process for designing equipment.
(ii) Describe how you normally work cooperatively or concurrently
with your engine supplier to design products.
(iii) Describe the engineering or technical problems causing you to
request the exemption and explain why you have not been able to solve
them. Describe the extreme and unusual circumstances that led to these
problems and explain how they were unavoidable.
(iv) Describe any information or products you received from your
engine supplier related to equipment design--such as written
specifications, performance data, or prototype engines--and when you
received it.
(v) Compare the design processes of the equipment model for which
you need additional exemptions and that for other models for which you
do not need additional exemptions. Explain the technical differences
that justify your request.
(vi) Describe your efforts to find and use other compliant engines,
or otherwise explain why none is available.
(vii) Describe the steps you have taken to minimize the scope of
your request.
(viii) Include other relevant information. You must give us other
relevant information if we ask for it.
(ix) Estimate the increased percent of production you need for each
equipment model covered by your request, as described in paragraph
(i)(3) of this section. Estimate the increased number of allowances you
need for each equipment model covered by your request, as described in
paragraph (i)(4) of this section.
(3) We may approve your request to increase the allowances under
paragraph (d)(1) of this section, subject to the following limitations:
(i) The additional allowances will not exceed 50 percent for each
power category.
(ii) You must use up the allowances under paragraph (d)(1) of this
section before using any additional allowance under this paragraph (i).
(iii) Any allowances we approve under this paragraph (i)(3) expire
24 months after the provisions of this section start for a given power
category. You may use these allowances only for the specific equipment
models covered by your request.
[[Page 72957]]
(4) We may approve your request to increase the allowances for the
37-75 kW power category under paragraph (d)(2) of this section, subject
to the following limitations:
(i) You are eligible for additional allowances under this paragraph
(i)(4) only if you are a small equipment manufacturer and you do not
use the provisions of paragraph (i)(3) of this section to obtain
additional allowances for the 37-75 kW power category.
(ii) You must use up all the available allowances for the 37-75 kW
power category under paragraph (d)(2) of this section in a given year
before using any additional allowances under this paragraph (i)(4).
(iii) Base your request only on equipment you produce with engines
at or above 37 kW and below 75 kW. You may use any additional
allowances only for equipment you produce with engines at or above 37
kW and below 75 kW.
(iv) Any allowances we approve under this paragraph (i)(4) expire
24 months after the provisions of this section start for this power
category. These additional allowances are not subject to the annual
limits specified in paragraph (d)(2) of this section. You may use these
allowances only for the specific equipment models covered by your
request.
(v) The total allowances under paragraph (d)(2) of this section for
the 37-75 kW power category will not exceed 700 units. The total
allowances under this paragraph (i)(4) follow the requirements under
paragraph (d)(2) of this section for the 37-75 kW power category and
will not exceed 200 units. Therefore, the total maximum allowances for
the 37-75 kW power category will not exceed 900 units.
(5) For purposes of this paragraph (i), small equipment
manufacturer means an equipment manufacturer that had annual U.S.-
directed production volume of equipment using nonroad diesel engines
between 37 and 75 kW of no more than 3,000 units in 2002 and all
earlier calendar years, and has 750 or fewer employees (500 or fewer
employees for nonroad equipment manufacturers that produce no
construction equipment or industrial trucks). For manufacturers owned
by a parent company, the production limit applies to the production of
the parent company and all its subsidiaries and the employee limit
applies to the total number of employees of the parent company and all
its subsidiaries.
(6) The following provisions for adjusted flexibilities for Tier 4
engines apply to equipment manufacturers that are granted additional
exemptions for technical or engineering hardship:
(i) If you use the additional allowance under this paragraph (i)
you shall forfeit percent of production flexibility plus technical or
engineering hardship exemptions available for Tier 4 engines in the
amounts shown in Table 1 of this section.
(ii) Table 1 of this section shows the percent of production
flexibility and technical or engineering hardship exemptions that you
must forfeit for Tier 4 engines. The amount of Tier 4 flexibility
forfeited by each equipment manufacturer depends on the percent of
production flexibility used for Tier 2 engines and the technical or
engineering hardship exemptions granted for Tier 3 engines in the
proportions shown in Table 1. For example, if you used 45 percent of
your production flexibility for Tier 2 engines, you must forfeit 2
percent of your production flexibility for Tier 4 engines for every 1
percent of technical or engineering hardship flexibility granted for
Tier 3 engines. In addition you must also forfeit 1 percent of any
technical or engineering hardship exemptions available for Tier 4
engines for every 1 percent technical or engineering hardship
exemptions available for Tier 3 engines. If you use the Tier 3
technical or engineering hardship allowances for 5 percent of your
equipment in each of two different years, you have used a total
allowance of 10 percent. Therefore you must forfeit a total of 20
percent of production flexibility for Tier 4 engines plus 10 percent of
any technical or engineering hardship exemptions available for Tier 4
engines.
Table 1 of Sec. 89.102.--Adjustments to Tier 4 Flexibilities
------------------------------------------------------------------------
Percent of Percent of
forfeit forfeit
Percent of use Tier 2 production flexibility Tier 4 Tier 4
production tech./eng.
flexibility exemption
------------------------------------------------------------------------
Greater than 0% and up to 20%................. 0 1
Greater than 20% and up to 40%................ 1 1
Greater than 40% and up to 60%................ 2 1
Greater than 60% and up to 80%................ 3 1
------------------------------------------------------------------------
(iii) Because the Tier 3 and Tier 4 rules have different power
category ranges, the availability of technical relief will be further
adjusted based on the sales volume by power category. Table 2 of this
section shows the applicable power categories for Tier 3 and Tier 4.
The Tier 3 power categories of 37kW to 75kW and 75kW to 130kW
correspond to the Tier 4 power category of 56kW to 130kW. For the Tier
3 equipment in the 37 to 75kW category, you must only use the sales
volume for equipment that uses engines with a rated power greater than
56kW. For example, if you have a Tier 3 piece of equipment that uses a
40 kW engine, the sales of the equipment are counted in the Tier 4
power category of 19kW to 56kW. If you have a Tier 3 piece of equipment
that uses a 60kW engine, the sales of the equipment are counted in the
Tier 4 power category of 56kW to 130kW. The Tier 3 power categories of
130kW to 225kW, 225kW to 450kW and 450kW to 560kW correspond to the
Tier 4 power category of 130kW to 560kW. You will need to sum the sales
of the Tier 3 power categories that correspond to the Tier 4 power
category during each calendar year in which Tier 3 technical relief is
used. The sum of all the Tier 3 units that are produced and exempted by
the technical relief divided by the sum of all the Tier 3 units sold in
the corresponding Tier 4 power category will determine the percentage
of Tier 4 flexibility affected. For example, if you produce 50 units
using Tier 3 technical relief in the range of 130kW to 225kW, and you
produce 50 units using Tier 3 technical relief in the range of 225 to
450kW, and no units are produced in the 450kW to 560kW range, and your
overall sales volume for the power ranges of 130kW to 560kW in Tier 3
is 400 units, the amount of Tier 3 technical relief used is 100/400 or
25 percent. Because you forfeit 1 percent of your Tier 4 technical
relief for every 1 percent of Tier 3 technical relief used, then you
will lose 25 percent of your Tier 4 technical relief in the 130kW to
560kW power range category. If you used 45 percent of your production
flexibility for Tier 2 engines, you must forfeit 2 percent of
production flexibility for Tier 4 engines for every 1 percent of Tier 3
technical relief. Therefore, you will forfeit 50 percent of your Tier 4
production allowance in the 130kW to 560kW power range category.
[[Page 72958]]
Table 2 of Sec. 89.102.--Corresponding Tier 3 and Tier 4 Power
Categories
------------------------------------------------------------------------
Tier 3 power categories Tier 4 power categories
------------------------------------------------------------------------
37<=kW<75\*\.............................. 19<=kW<56
37<=kW<75\**\, 75<=kW<130................. 56<=kW<130
130<=kW<225, 225<=kW<450, 450<=kW<560..... 130<=kW<=560
------------------------------------------------------------------------
\*\ Applies only to use of engines rated between 37kW and 56kW by small
volume equipment manufacturers.
\**\ Includes only equipment that uses engines with a rated power
greater than 56kw.
(iv) Manufacturers using allowances under this paragraph (i) must
comply with the notification and reporting requirements specified in
paragraph (i)(7) of this section.
(7) Notification and reporting. You must notify us of your intent
to use the technical relief provisions of this paragraph (i) and send
us an annual report to verify that you are not exceeding the
allowances, as follows:
(i) Before the first year you intend to use the provisions of this
section, send the Designated Compliance Officer and the Designated
Enforcement Officer a written notice of your intent, including:
(A) Your company's name and address, and your parent company's name
and address, if applicable.
(B) Whom to contact for more information.
(C) The calendar years in which you expect to use the exemption
provisions of this section.
(D) The name and address of the company that produces the engines
you will be using for the equipment exempted under this section.
(E) Your best estimate of the number of units in each power
category you will produce under this section and whether you intend to
comply under paragraph (d)(1) or (d)(2) of this section.
(F) The number of units in each power category you have sold in
previous calendar years under paragraph (d) of this section.
(ii) For each year that you use the provisions of this section,
send the Designated Compliance Officer and the Designated Enforcement
Officer a written report by March 31 of the following year. Include in
your report the total number of engines you sold in the preceding year
for each power category, based on actual U.S.-directed production
information. Also identify the percentages of U.S.-directed production
that correspond to the number of units in each power category and the
cumulative numbers and percentages of units for all the units you have
sold under this section for each power category. You may omit the
percentage figures if you include in the report a statement that you
will not be using the percent-of-production allowances in paragraph (d)
of this section.
(8) Recordkeeping. Keep the following records of all equipment with
exempted engines you produce under this paragraph (i) for at least five
full years after the final year in which allowances are available for
each power category:
(i) The model number, serial number, and the date of manufacture
for each engine and piece of equipment.
(ii) The maximum power of each engine.
(iii) The total number or percentage of equipment with exempted
engines, as described in paragraph (d) of this section and all
documentation supporting your calculation.
(iv) The notifications and reports we require under paragraph
(i)(7) of this section.
(9) Equipment Labeling. Any engine produced under this paragraph
(i) must meet the labeling requirements of 40 CFR 89.110, but add the
following statement instead of the compliance statement in 40 CFR
89.110 (b)(10): THIS ENGINE MEETS U.S. EPA EMISSION STANDARDS UNDER 40
CFR 89.102. SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER
THAN FOR THE EQUIPMENT FLEXIBILITY PROVISIONS OF 40 CFR 89.102 MAY BE A
VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.
(10) Enforcement. Producing more exempted engines or equipment than
we allow under this paragraph (i) or installing engines that do not
meet the applicable Tier 1 emission standards described in Sec. 89.112
violates the prohibitions in Sec. 89.1003(a)(1). You must give us the
records we require under this paragraph (i) if we ask for them (see
Sec. 89.1003(a)(2)).
[FR Doc. E7-24976 Filed 12-21-07; 8:45 am]
BILLING CODE 6560-50-P
