California State Nonroad Engine Pollution Control Standards; Off-Highway Recreational Vehicles and Engines; Notice of Decision, 6584-6592 [2014-02297]
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Federal Register / Vol. 79, No. 23 / Tuesday, February 4, 2014 / Notices
clicking on the links or querying the
docket number.
Any person desiring to intervene or
protest in any of the above proceedings
must file in accordance with Rules 211
and 214 of the Commission’s
Regulations (18 CFR 385.211 and
385.214) on or before 5:00 p.m. Eastern
time on the specified comment date.
Protests may be considered, but
intervention is necessary to become a
party to the proceeding.
eFiling is encouraged. More detailed
information relating to filing
requirements, interventions, protests,
service, and qualifying facilities filings
can be found at: https://www.ferc.gov/
docs-filing/efiling/filing-req.pdf. For
other information, call (866) 208–3676
(toll free). For TTY, call (202) 502–8659.
Dated: January 28, 2014.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2014–02236 Filed 2–3–14; 8:45 am]
BILLING CODE 6717–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OAR–2012–0742; FRL 9906–14–
OAR]
California State Nonroad Engine
Pollution Control Standards; OffHighway Recreational Vehicles and
Engines; Notice of Decision
Environmental Protection
Agency (EPA).
ACTION: Notice of decision.
AGENCY:
The Environmental Protection
Agency (EPA) is granting the California
Air Resources Board’s (CARB’s) request
for authorization of amendments to
California’s Off-Highway Recreational
Vehicles and Engines (OHRV)
regulations, confirming that certain
OHRV amendments are within-thescope of prior EPA authorizations, and
confirming that certain OHRV
amendments are not preempted by
Clean Air Act. CARB’s OHRV
regulations apply to all off-highway
recreational vehicles (and to engines
manufactured for use in such vehicles)
produced on or after January 1, 1997, for
sale, lease, use and introduction into
commerce in California. This decision is
issued under the authority of the Clean
Air Act (CAA or Act).
DATES: Petitions for review must be filed
by April 7, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
EPA–HQ–OAR–2012–0742. All
documents relied upon in making this
decision, including those submitted to
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SUMMARY:
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EPA by CARB, are contained in the
public docket. Publicly available docket
materials are available either
electronically through
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
working 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 https://www.epa.gov/
oar/docket.html. The electronic mail
(email) 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 https://
www.regulations.gov. After opening the
www.regulations.gov Web site, enter
EPA–HQ–OAR–2012–0742 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 (‘‘OTAQ’’) maintains a Web
page that contains general information
on its review of California waiver and
authorization requests. Included on that
page are links to prior waiver Federal
Register notices, some of which are
cited in today’s notice; the page can be
accessed at https://www.epa.gov/otaq/
cafr.htm.
FOR FURTHER INFORMATION CONTACT:
Suzanne Bessette, Attorney-Advisor,
Compliance Division, Office of
Transportation and Air Quality, U.S.
Environmental Protection Agency, 2000
Traverwood Drive, Ann Arbor, MI
48105. Telephone: (734) 214–4703. Fax:
(734) 214–4053. Email:
bessette.suzanne@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
In 1994, CARB adopted emission
standards and test procedures for
OHRVs. At that time, there were no
analogous federal standards regulating
emissions from the vehicles and engines
covered by California’s OHRV
regulations. EPA authorized CARB’s
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1994 OHRV regulations in 1996.1
California subsequently adopted three
rounds of amendments to these
regulations, the first in 1999, the second
in 2003, and the third in 2006. CARB
requested that EPA authorize each of
these three amendment packages in
letters dated March 24, 2000, November
19, 2004, and March 24, 2010,
respectively.2 The March 24, 2010
request explicitly incorporates the
previous two requests, and EPA here
considers all three requests
concurrently.
A. California’s Authorization Requests
The 1999 OHRV amendments did not
change the numerical exhaust emission
standards for OHRVs, but added a new
compliance category that allowed
OHRVs not meeting the applicable
emissions standards to be certified
subject to use restrictions (i.e., use in
specified areas during specified times of
the year). Such non-emissionscompliant OHRVs would be identified
with a red sticker or ‘‘red tag,’’ while
emissions-compliant OHRVs would be
identified with a green sticker or ‘‘green
tag.’’ The amendments also removed a
competition vehicle exemption
provision and added all-terrain vehicles
(ATVs) over 600 pounds (lbs) to the
existing definition of ATV. CARB
requested that EPA confirm a withinthe-scope determination for the red tag
program and for the removal of the
competition exemption, and grant a full
authorization for the addition of ATVs
over 600 lbs.
According to CARB, the goal of the
1999 amendments was to provide
economic relief to vehicle dealers in
California who were contractually
bound to sell products that did not meet
the emission standards California
established in 1994.3 Prior to the 1999
amendments, two-stroke off-highway
motorcycles could only be sold as
competition models, and their use was
limited to closed-course competitions.
Following the amendments, such
competition vehicles would be red
tagged and allowed to operate during
certain times of the year in certain
geographic areas. The amendments
provided for red tagged vehicles to be
certified and sold in California and to be
1 ‘‘California State Nonroad Engine and Vehicle
Pollution Control Standards; Authorization of State
Standards; Notice of Decision,’’ 61 FR 69093
(December 31, 1996).
2 CARB Request for Authorization Letter, March
24, 2000 (‘‘2000 Request’’), EPA–HQ–OAR–2012–
0742–0002; CARB Request for Authorization Letter,
February 19, 2004 (‘‘2004 Request’’), EPA–HQ–
OAR–2012–0742–0008; CARB Request for
Authorization Letter, March 24, 2010 (‘‘2010
Request’’), EPA–HQ–OAR–2012–0742–0014.
3 2000 Request, supra note 2, at 2.
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operated in two situations. First, in
‘‘unlimited use areas,’’ which are certain
recreational use areas located in regions
in attainment with the National
Ambient Air Quality Standard (NAAQS)
for ozone, red-tagged vehicles could be
used without restriction, year-round.
Second, in ‘‘limited use areas,’’ which
are certain recreational use areas located
in regions classified as nonattainment
for the ozone NAAQS, red-tagged
vehicles could be used only during
‘‘riding seasons’’ specified for each area.
The riding seasons in limited use areas
restricted the operation of red-tagged
vehicles during peak ozone periods,
when the area was typically not in
attainment with the ozone standard,
usually the summer months. Out of
more than 100 designated riding areas,
approximately one-third were unlimited
use areas and two-thirds were limited
use areas.4 The vast majority of the
riding areas were established on public
lands managed by the California
Department of Parks and Recreation, the
United States Forest Service, or the
United States Bureau of Land
Management. CARB predicted that the
red tag program would result in lower
emissions from OHRVs in limited use
areas during peak ozone periods, but
higher emissions and a ‘‘possible minor
impact on PM or toxics’’ in unlimited
use areas, limited use areas during nonpeak seasons, and on a state-wide
average.5 However, these predicted
increases in emissions from OHRVs
were expected to increase pollutants of
concern only negligibly, and to have no
impact on ozone air quality since
exceedances of the ozone standard
would not occur during the period in
which riding was allowed.6
The 2003 amendment modified the
OHRV regulations to change and clarify
the start date of the red tag program.
California’s authorization request stated
that the regulatory change was needed
to correct the ‘‘practical delay’’ in
enforcement of the 1999 red tag program
and to confirm that the riding season
use restrictions would begin with the
2003 model year.7 CARB sought a
4 ‘‘Initial Statement of Reasons, Public Hearing to
Consider Amendments to the California Regulations
for New 1997 and Later Off-Highway Recreational
Vehicles and Engines,’’ October 23, 1999, EPA–HQ–
OAR–2012–0742–0030, at 6.
5 Id. at 8.CARB predicted lower emissions in
limited use areas because red tag vehicles would be
prohibited there during peak ozone seasons,
whereas prior to the amendments these vehicles
would have been covered by the competition
exemption and their use would have been allowed
year round.
6 Id. at 7.
7 2004 Request, supra note 2, at 1.
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within-the-scope determination for this
amendment.8
The 2006 amendments made three
further changes to California’s OHRV
regulations. First, California added
evaporative emission standards for
OHRVs that aligned with federal
standards for 2008 and later model year
vehicles. Second, the amendments
reclassified sand cars, off-road utility
vehicles and off-road sport vehicles as
OHRVs, to align with the federal
classification of these vehicles. Each of
these vehicle categories had previously
been regulated under other federallyauthorized California regulations as
small off-road or large off-road sparkignition engines. The 2006 amendments
set new emission standards for these
three additional classes of vehicles that
aligned with or exceeded the stringency
of federal standards.9 Third, the list of
riding areas and riding seasons was
amended to add a few new attainment
areas.
CARB’s 2010 request regarding the
2006 amendments sought (1) a full
authorization for the evaporative
emissions standard, (2) a within-thescope determination for the
reclassification of sand cars, off-road
sport vehicles and off-road utility
vehicles, and (3) a declaration that the
riding areas and riding seasons
amendment does not require EPA
authorization because the designation of
seasonal and geographical use
specifications is an operational control
and is accordingly not preempted by
section 209 of the Act.10 California also
requested, in the alternative, that the
riding season amendments be
considered within the scope of EPA’s
1996 authorization of CARB’s 1994
OHRV regulations. Finally, CARB
requested that EPA concurrently
consider and render a decision on the
pending authorization requests for the
1999 and 2003 amendments.
B. 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.11 For
8 At the same time, CARB argued that future
amendments of riding seasons and riding areas
should not be subject to EPA approval, because they
should be treated as ‘‘operational controls’’ not
preempted under section 209(d) of the Clean Air
Act. Id. at note 1.
9 2010 Request, supra note 2, at 4–6.
10 Id. at 1–2.
11 States are expressly preempted from adopting
or attempting to enforce any standard or other
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all other nonroad engines (including
‘‘non-new’’ engines), states generally are
preempted from adopting and enforcing
standards and other requirements
relating to the control of emissions,
except that section 209(e)(2)(A) of the
Act requires EPA, after notice and
opportunity for public hearing, to
authorize California to adopt and
enforce such regulations unless EPA
makes one of three enumerated findings.
Specifically, EPA must deny
authorization if the Administrator finds
that (1) California’s protectiveness
determination (i.e., that California
standards will be, in the aggregate, as
protective of public health and welfare
as applicable federal standards) is
arbitrary and capricious, (2) California
does not need such standards to meet
compelling and extraordinary
conditions, or (3) the California
standards and accompanying
enforcement procedures are not
consistent with section 209 of the Act.
On July 20, 1994, EPA promulgated a
rule interpreting the three criteria set
forth in section 209(e)(2)(A) that EPA
must consider before granting any
California authorization request for
nonroad engine or vehicle emission
standards.12 EPA revised these
regulations in 1997.13 As stated in the
preamble to the 1994 rule, EPA
historically has interpreted the
consistency inquiry under the third
criterion, outlined above and set forth in
section 209(e)(2)(A)(iii), 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) of the Act.14
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
requirement relating to the control of emissions
from new nonroad engines which are used in
construction equipment or vehicles or used in farm
equipment or vehicles and which are smaller than
175 horsepower. Such express preemption under
section 209(e)(1) of the Act also applies to new
locomotives or new engines used in locomotives.
12 See ‘‘Air Pollution Control; Preemption of State
Regulation for Nonroad Engine and Vehicle
Standards,’’ 59 FR 36969 (July 20, 1994).
13 See ‘‘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,’’ 62 FR 67733
(December 30, 1997). The applicable regulations are
now found in 40 CFR part 1074, subpart B, section
1074.105.
14 See supra note 12. EPA has interpreted
209(b)(1)(C) in the context of section 209(b) motor
vehicle waivers.
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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 under section 209(b)(1)(C).
That provision provides that the
Administrator shall not grant California
a motor vehicle waiver 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 will be found to be
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.
In light of the similar language of
sections 209(b) and 209(e)(2)(A), EPA
has reviewed California’s requests for
authorization of nonroad vehicle or
engine standards under section
209(e)(2)(A) using the same principles
that it has historically applied in
reviewing requests for waivers of
preemption for new motor vehicle or
new motor vehicle engine standards
under section 209(b).15 These principles
include, among other things, that EPA
should limit its inquiry to the three
specific authorization criteria identified
in section 209(e)(2)(A),16 and that EPA
should give substantial deference to the
policy judgments California has made in
adopting its regulations. In previous
waiver decisions, EPA has stated that
Congress intended EPA’s review of
California’s decision-making be narrow.
EPA has rejected arguments that are not
specified in the statute as grounds for
denying a waiver:
The law makes it clear that the waiver
requests cannot be denied unless the specific
findings designated in the statute can
properly be made. The issue of whether a
proposed California requirement is likely to
result in only marginal improvement in
California air quality not commensurate with
its costs or is otherwise an arguably unwise
exercise of regulatory power is not legally
pertinent to my decision under section 209,
so long as the California requirement is
consistent with section 202(a) and is more
stringent than applicable Federal
requirements in the sense that it may result
15 See Engine Manufacturers Association v. EPA,
88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was
within the bounds of permissible construction in
analogizing § 209(e) on nonroad sources to § 209(a)
on motor vehicles.’’
16 See supra note 12, at 36983.
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in some further reduction in air pollution in
California.17
This principle of narrow EPA review
has been upheld by the U.S. Court of
Appeals for the District of Columbia
Circuit.18 Thus, EPA’s consideration of
all the evidence submitted concerning
an authorization decision is
circumscribed by its relevance to those
questions that may be considered under
section 209(e)(2)(A).
C. Within-the-Scope Determinations
If California amends regulations that
were previously authorized by EPA,
California may ask EPA to determine
that the amendments are within the
scope of the earlier authorization. A
within-the-scope determination for such
amendments is permissible without a
full authorization review if three
conditions are met. First, the amended
regulations must not undermine
California’s previous 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 209 of the Act,
following the same criteria discussed
above in the context of full
authorizations. Third, the amended
regulations must not raise any ‘‘new
issues’’ affecting EPA’s prior waivers.19
D. Burden and Standard of Proof
As the U.S. Court of Appeals for the
D.C. Circuit has made clear in MEMA I,
opponents of a waiver request by
California bear the burden of showing
that the statutory criteria for a denial of
the request have been met:
[T]he language of the statute and its
legislative history indicate that California’s
regulations, and California’s determinations
that they must comply with the statute, when
presented to the Administrator are presumed
to satisfy the waiver requirements and that
the burden of proving otherwise is on
whoever attacks them. California must
present its regulations and findings at the
17 ‘‘Waiver of Application of Clean Air Act to
California State Standards,’’ 36 FR 17458 (Aug. 31,
1971). Note that the more stringent standard
expressed here, in 1971, was superseded by the
1977 amendments to section 209, which established
that California must determine that its standards
are, in the aggregate, at least as protective of public
health and welfare as applicable Federal standards.
In the 1990 amendments to section 209, Congress
established section 209(e) and similar language in
section 209(e)(1)(i) pertaining to California’s
nonroad emission standards which California must
determine to be, in the aggregate, at least as
protective of public health and welfare as
applicable federal standards.
18 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA,
627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’).
19 See ‘‘California State Motor Vehicle Pollution
Control Standards; Amendments Within the Scope
of Previous Waiver of Federal Preemption,’’ 46 FR
36742 (July 15, 1981).
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hearing and thereafter the parties opposing
the waiver request bear the burden of
persuading the Administrator that the waiver
request should be denied.20
The Administrator’s burden, on the
other hand, is to make a reasonable
evaluation of the information in the
record in coming to the waiver decision.
As the court in MEMA I stated: ‘‘here,
too, if the Administrator ignores
evidence demonstrating that the waiver
should not be granted, or if he seeks to
overcome that evidence with
unsupported assumptions of his own,
he runs the risk of having his waiver
decision set aside as ‘arbitrary and
capricious.’ ’’ 21 Therefore, the
Administrator’s burden is to act
‘‘reasonably.’’ 22
With regard to the standard of proof,
the court in MEMA I explained that the
Administrator’s role in a section 209
proceeding is to:
[. . .]consider all evidence that passes the
threshold test of materiality and * * *
thereafter assess such material evidence
against a standard of proof to determine
whether the parties favoring a denial of the
waiver have shown that the factual
circumstances exist in which Congress
intended a denial of the waiver.23
In that decision, the court considered
the standards of proof under section 209
for the two findings related to granting
a waiver for an ‘‘accompanying
enforcement procedure.’’ Those findings
involve: (1) Whether the enforcement
procedures impact California’s prior
protectiveness determination for the
associated standards, and (2) whether
the procedures are consistent with
section 202(a). The principles set forth
by the court, however, are similarly
applicable to an EPA review of a request
for a waiver of preemption for a
standard. The court instructed that ‘‘the
standard of proof must take account of
the nature of the risk of error involved
in any given decision, and it therefore
varies with the finding involved. We
need not decide how this standard
operates in every waiver decision.’’ 24
With regard to the protectiveness
finding, the court upheld the
Administrator’s position that, to deny a
waiver, there must be ‘‘clear and
compelling evidence’’ to show that
proposed enforcement procedures
undermine the protectiveness of
California’s standards.25 The court
noted that this standard of proof also
accords with the congressional intent to
20 MEMA
I, supra note 19, at 1121.
at 1126.
22 Id. at 1126.
23 Id. at 1122.
24 Id.
25 Id.
21 Id.
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provide California with the broadest
possible discretion in setting regulations
it finds protective of the public health
and welfare.26
With respect to the consistency
finding, the court did not articulate a
standard of proof applicable to all
proceedings, but found that the
opponents of the waiver were unable to
meet their burden of proof even if the
standard were a mere preponderance of
the evidence. Although MEMA I did not
explicitly consider the standards of
proof under section 209 concerning a
waiver request for ‘‘standards,’’ ’’ as
compared to a waiver request for
accompanying enforcement procedures,
there is nothing in the opinion to
suggest that the court’s analysis would
not apply with equal force to such
determinations. EPA’s past waiver
decisions have consistently made clear
that: ‘‘[E]ven in the two areas
concededly reserved for Federal
judgment by this legislation—the
existence of ‘compelling and
extraordinary’ conditions and whether
the standards are technologically
feasible—Congress intended that the
standards of EPA review of the State
decision to be a narrow one.’’ 27
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E. EPA’s Administrative Process in
Consideration of California’s OHRV
Amendment Requests for Authorization
On January 4, 2013, EPA published a
Federal Register notice announcing its
receipt of California’s authorization
request. In that notice, EPA invited
public comment on each of the 2006
amendments, as well as on the prior
authorization requests for amendments
California adopted in 1999 and 2003.28
The request for comments specifically
referred, but was not limited, to the
following issues.
First, EPA requested comment on the
1999 amendments, as follows: (1)
Should California’s 1999 OHRV
amendments, specifically the provision
for certification of OHRVs that do not
meet the emissions criteria (the red tag
amendment) and the removal of the
competition exemption, be considered
under the within-the-scope analysis, or
should they be considered under the
full authorization criteria? (2) If those
amendments should be considered as a
within-the-scope request, do they meet
the criteria for EPA to grant a within26 Id.
27 See, e.g., ‘‘California State Motor Vehicle
Pollution Control Standards; Waiver of Federal
Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103.
28 ‘‘California State Nonroad Engine Pollution
Control Standards; Off-Highway Recreational
Vehicles and Engines; Request for Authorization;
Opportunity for Public Hearing and Comment,’’ 78
FR 724, (January 4, 2013).
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the-scope confirmation? (3)
Alternatively, if the red tag amendment
and removal of the competition
exemption should not be considered
under the within-the-scope analysis, or
in the event that EPA determines they
are not within the scope of the previous
authorization, do they meet the criteria
for making a full authorization
determination? (4) Does the removal of
the 600 lb weight limitation in the
definition of ATV meet the criteria for
making a full authorization
determination?
Second, regarding the 2003
amendment, EPA requested comment
on the following questions: (1) Whether
the amendment limiting the red tag
program to model years 2003 and later
should be evaluated under the withinthe-scope criteria, and if so, whether it
meets the within-the-scope criteria for
authorization? (2) To the extent that the
2003 amendment should be treated as a
full authorization request, does the
amendment meet the criteria for a full
authorization?
Third, regarding the 2006
amendments, we requested comment on
the following: (1) Does the amendment
setting evaporative emissions standards
for OHRVs meet the criteria for a full
authorization? (2) Does the amendment
reclassifying sand cars, off-road sport
vehicles and off-road utility vehicles as
OHRVs fall within the scope of the
original (1996) authorization? (3) Does
the amendment altering the list of riding
areas and riding seasons require federal
authorization review, or is it not
federally preempted, pursuant to CAA
section 209(d)? (4) If it is preempted and
therefore requires federal authorization,
does the amended list of riding areas
and seasons fall within the scope of the
original (1996) authorization?
In response to these requests for
comment, EPA received an additional
submission from CARB.29 EPA received
no written comments from parties other
than CARB and received no requests for
a public hearing. Consequently, EPA did
not hold a public hearing.
CARB’s July 23, 2013 submission
provided additional and updated
information in support of its
protectiveness determination for the red
tag program amendment, contained in
the 1999 amendment package. CARB
compared its exemption for red-tagged
vehicles to an analogous feature in the
federal regulations, which exempts
competition model OHRVs from federal
emissions standards. After a detailed
analysis comparing the projected
29 Comment submitted by Richard W. Corey
(CARB), July 23, 2013, EPA–HQ–OAR–2012–0742–
0029.
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6587
emissions effects of the federally
exempted competition model vehicles
to California’s red tagged vehicles,
CARB concluded that its OHRV program
‘‘remains as protective in the aggregate
as the federal program.’’ 30
II. Discussion
A. California’s 1999 Amendments
The 1999 amendment package
contains three amendments, each briefly
described above: the removal of the
competition exemption, the addition of
the red tag program, and the addition of
vehicles over 600 lb to the ATV vehicle
category.
1. Removal of the Competition
Exemption and Addition of the Red Tag
Program
California’s request for authorization
of the amendments (1) removing the
exemption from emission standard
controls for competition models, and (2)
introducing the red tag certification
program and regional/seasonal
restrictions for red-tagged vehicles are
interrelated, and therefore will be
treated together in this discussion. As
explained by CARB in its 2000
authorization request, ‘‘[s]ince all offhighway vehicles must now be certified
as either emissions-compliant with no
use restrictions, or non-emissionscompliant with use restrictions, the
superfluous competition vehicle
definition was deleted.’’ 31 CARB
asserted that the competition vehicle
designation and associated restrictions
on the use of such vehicles were made
superfluous because such vehicles
would be subsumed in the nonemissions-compliant red tagged category
of vehicles, and their use would be
limited to the newly designated riding
areas and seasons.
a. Within-the-Scope Analysis
California requested that the
amendments establishing the red tag
program and removing the competition
exemption both be treated as within the
scope of the original EPA authorization
of the OHRV program. California
asserted that the amendments met all
three within-the-scope criteria, i.e. that
the amendments: (1) Do not undermine
the original protectiveness
determination underlying California’s
OHRV regulations, (2) do not affect the
consistency of the OHRV regulations
with section 202(a), and (3) do not raise
any new issues affecting the prior
authorization.32
30 Id.
at 2.
Request, supra note 2, at 4.
32 Id. at 8–11.
31 2000
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Beginning with the third criterion,
CARB asserted that ‘‘[t]he regional/
seasonal approach, while establishing a
new regulatory section, does not force
any change in technology to warrant
revisiting conclusions reached in
granting the existing authorization.’’ 33
CARB further stated that it was not
aware of any new issues presented by
the red tag program or the removal of
the competition exemption. EPA
appreciates that the regional/seasonal
approach does not change the numeric
emissions standards or test procedures
approved in the original authorization
of California’s OHRV regulations.
However, the shift from exempting one
class of vehicles (competition models)
from those standards to certifying and
allowing a potentially different class of
vehicles (non-emissions-compliant
vehicles) to operate regionally/
seasonally is a major change in the
application and meaning of those
standards, the practical effects of which
could have a significant impact on the
aggregate emissions of OHRVs in
California. Furthermore, while at the
time of the request there were no
comparable federal regulations for
OHRVs against which to compare
California’s regulations, there are such
federal regulations now.34 The
analogous federal program regulating
OHRVs stands in stark contrast to
California’s program, insofar as the
federal program exempts competitiononly models from regulation (allowing
their full and unrestricted use) and does
not allow non-competition, red-tagged
vehicles to be certified at all. Indeed,
California’s approach of certifying redtagged vehicles to operate in limited
areas and/or during limited seasons is
without parallel in the field of federal
mobile source emissions regulations
across all classes of vehicles.
EPA finds that the regional/seasonal
program and removal of the competition
exemption fundamentally change
California’s previously authorized
OHRV program. First, they present a
shift in the application and potential
practical effects of the previously
authorized emission standards. They
also represent a significant departure
from the standard regulatory structure
used in the parallel federal OHRV
emissions regulations. EPA
consequently views these changes,
collectively, as a new issue that
precludes a within-the-scope
determination. Since the ‘‘new issue’’
prong of the within-the-scope criteria is
not met, EPA must treat these
33 Id.
at 10.
40 CFR Part 1051, ‘‘Control of Emissions
From Recreational Engines and Vehicles’’.
34 See
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amendments as full authorization
requests, and will analyze them as
such.35
b. Full Authorization Analysis
The first prong of the full
authorization analysis is whether
California’s protectiveness
determination (that the standards
including the red tag program are, in the
aggregate, at least as protective of public
health and welfare as otherwise
applicable federal standards) is arbitrary
or capricious. California’s original
protectiveness determination for these
amendments was made at a time when
no comparable federal standards
existed; therefore CARB’s determination
that its standards were, in the aggregate,
at least as protective as the (nonexistent) federal standards was
relatively straightforward. California’s
subsequent requests for authorization
(2004 and 2010) generally referred back
to the original analysis and did not
substantively update the protectiveness
determination. Regardless of whether
CARB’s original protectiveness
determination was or was not arbitrary
or capricious at the time it was made,
EPA must now evaluate California’s
determination in light of the current
federal standards, not those in place at
the time California’s regulations were
promulgated.36 For this reason, CARB
submitted additional information in
response to our request for public
comments to update its protectiveness
determination for the red tag program,
considering current federal OHRV
standards.37
In its comments dated July 23, 2013,
CARB presented a detailed analysis and
argument that the inclusion of the red
tag program renders its standards, in the
aggregate, at least as protective as the
current federal standards. CARB’s
analysis was based on an ‘‘apples-toapples’’ comparison of whether and
how the federal and California
regulations would allow the sale of
OHRVs, by referencing the list of
competition models exempted by
35 EPA cannot find that these amendments are
within the scope of the previous authorization
because they failed to satisfy the ‘‘new issue’’
criterion. We must therefore proceed with a full
authorization analysis; there is no need to analyze
whether the other two prongs of the within-thescope analysis are met.
36 This does not mean that the original
protectiveness determination is arbitrary or
capricious. See ‘‘California State Motor Vehicle
Pollution Control Standards; Notice of Decision
granting a Waiver of Clean Air Act Preemption for
California’s Advanced Clean Car Program and a
Within-the-scope Confirmation for California’s Zero
Emission Vehicle Amendments for 2017 and Earlier
Model Years,’’ 78 FR 2112 (January 9, 2013), at
2124.
37 See supra note 29.
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federal standards to the list of redtagged vehicle models authorized for
restricted use in California. CARB
concluded that ‘‘the provisions for
allowing noncompliant vehicle
certifications and their accompanying
usage restrictions provide a level of
protection in California that remains, at
the minimum, no worse than afforded
under federal provisions as
demonstrated by the established
correlation between equally configured
federally exempted vehicles and
California noncompliant vehicles.’’ 38
We received no contrary evidence or
arguments to refute California’s original
or supplemental protectiveness
determinations. In light of CARB’s
detailed analysis and reasoned
conclusions, and the lack of any
evidence to the contrary, we cannot find
that California’s protectiveness
determination regarding the red tag
program is arbitrary or capricious.
Second, the Section 209(e)(2)(ii)
inquiry into whether California needs
such standards to meet compelling and
extraordinary conditions in the state is
restricted to a consideration of whether
California needs its own emission
standards program to meet compelling
and extraordinary conditions, not
whether any particular standards are
necessary to meet such conditions.39 In
resolving to amend its OHRV
regulations with the red tag program,
California reaffirmed its longstanding
determination that its emission
standards program is necessary to meet
the state’s compelling and extraordinary
conditions.40 We received no contrary
evidence or comments challenging
California’s determination that its
emission standards program is
necessary to meet these conditions.
Therefore, there is no evidence that the
state’s emissions standards program is
not still necessary to address the
‘‘compelling and extraordinary
conditions’’ underlying the state’s air
pollution problems.
Third and finally, we evaluate the red
tag program for consistency with section
209 of the Act, which, as discussed
above, requires evaluation of
consistency with sections 209(a),
38 Id.
at 4–5.
California State Motor Vehicle Pollution
Control Standards; Notice of Decision Granting a
Waiver of Clean Air Act Preemption for California’s
2009 and Subsequent Model Year Greenhouse Gas
Emission Standards for New Motor Vehicles,’’ 74
FR 32744 (July 8, 2009), at 32761; see also
‘‘California State Motor Vehicle Pollution Control
Standards; Waiver of Federal Preemption Notice of
Decision,’’ 49 FR 18887 (May 3, 1984), at 18889–
188890.
40 ‘‘State of California Air Resources Board,
Resolution 98–66,’’ December 10, 1998, EPA–HQ–
OAR–2012–0742–0007.
39 See
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209(e)(1), and 209(b)(1)(C). First, to be
consistent with section 209(a), the
amendments must not apply to new
motor vehicles or motor vehicle engines.
The Act defines ‘‘motor vehicle’’ as
‘‘any self-propelled vehicle designed for
transporting persons or property on a
street or highway.’’ 41 As already
determined in EPA’s authorization of
the original OHRV regulations, OHRVs
and OHRV engines (as defined by
California) are not motor vehicles or
motor vehicle engines.42 The definition
of OHRV has not changed since that
time. While OHRVs are not explicitly
defined in California’s regulations, the
OHRV engines subject to California’s
OHRV regulations and the red tag
amendments at issue here are defined as
engines ‘‘[. . .] designed for powering
off-road recreational vehicles . . .’’ 43
They are not designed for on-highway
use and we received no evidence that
any OHRVs or OHRV engines are
designed as motor vehicles or motor
vehicle engines. We therefore find that
the vehicles and engines subject to the
red tag program are not motor vehicles
and that the regulations therefore are
consistent with section 209(a) of the
Act. Second, to be consistent with
section 209(e)(1) of the Act, the
regulations must not attempt to regulate
those vehicles and engines explicitly
preempted from state regulation by
section 209(e)(1), including farm and
construction equipment and engines,
vehicles and engines below 175
horsepower, and new locomotives or
locomotive engines. None of the
vehicles or engines covered by
California’s OHRV regulations fall in
these categories and we received no
evidence to the contrary. We therefore
find the red tag amendments are
consistent with section 209(e)(1). Third
and finally, to be consistent with section
209(b)(1)(c), there must be adequate lead
time to permit technological
development for compliance with the
amendment, and the state test
procedures must not be made
inconsistent with federal test
procedures. In this case, there is no
evidence that the red tag program would
require any technological development,
or that it would affect the consistency of
federal and state test procedures. We
therefore find no evidence that the
standards and accompanying
enforcement procedures of the red tag
program and the removal of the
41 CAA
section 216(2), 42 U.S.C. § 7550(a).
Decision Document supporting 61 FR
69093, December 31, 1996, Docket A–95–17, at 30.
43 13 CA ADC § 2411(a)(13).
competition exemption are inconsistent
with section 209 of the Act.
After a review of the information
submitted by CARB, and the record for
this authorization request, EPA finds
that no basis exists to demonstrate that
authorization for California’s
amendments establishing the red tag
program and removing the competition
exemption from its OHRV regulations
should be denied based on any of the
statutory criteria of section 209(e)(2)(A).
For this reason, EPA finds that an
authorization for such amendments
should be granted.
2. Addition of ATVs Over 600 lbs
California requested a full
authorization for the addition of
vehicles over 600 lbs to the existing
class of ATVs covered by the OHRV
regulations. California asserted that
while most ATVs fall under the 600 lb
mark, a small number of vehicles used
for work applications are greater than
600 lb and do not warrant separate
treatment under an additional
regulatory scheme.44 CARB further
clarified that ATVs used in farm or
construction applications are not to be
included in the definition, as they are
permanently preempted by section
209(e)(1) of the CAA and its
implementing regulations.
As noted above, when CARB
requested authorization in 2000 for the
1999 amendment expanding the ATV
category to include vehicles over 600 lb,
no comparable federal standards existed
against which to assess the
protectiveness of the California
regulations. However, California’s
request must be judged in light of the
current comparable federal regulations.
Emissions from ATVs are federally
regulated in 40 CFR Part 1051 as part of
the nonroad emission standards
program.45 There are no weight limits
on the class of ATVs regulated under
Part 1051. The federal standards in 40
CFR 1051.107 therefore apply to the
expanded class of vehicles described in
California’s revised definition of ATVs
and are the ‘‘comparable standards’’
against which California’s request for
authorization for its expanded class of
vehicles should be judged.
First, regarding the protectiveness of
California’s regulation of ATVs greater
than 600 lbs, when CARB submitted its
petition for authorization of additional
amendments in 2004, it re-evaluated its
OHRV standards (including the
standards applicable to vehicles greater
than 600 lb) in light of the newly
promulgated federal Part 1051
standards. Citing EPA’s own analysis of
the comparative emission standards for
ATVs detailed in the preamble to the
2002 federal rulemaking, CARB found
that the California and federal standards
were roughly equivalent with the main
difference being the federal inclusion of
the competition exemption versus
California’s red tag program.46 Taken as
a whole, CARB concluded that
California’s program for ATVs,
including those over 600 lb, remained at
least as protective as the federal
program. We received no comments or
evidence contradicting this
determination, and therefore we cannot
find that California’s protectiveness
determination is arbitrary or capricious.
Second, and as noted above with
regard to the red tag amendments that
CARB adopted concurrently, California
maintained that its mobile source
pollution program is still necessary to
meet compelling and extraordinary
conditions in the state. We received no
contrary evidence or comments
challenging this assertion. We therefore
find that there is no evidence that the
state’s emission standards program is
not still necessary to address the
‘‘compelling and extraordinary
conditions’’ underlying the state’s air
pollution problems.
Third and finally, the removal of the
600 lb weight limit must be found
consistent with section 209 of the Act if
it: (1) Does not regulate new motor
vehicles or motor vehicle engines per
section 209(a) or any of the vehicles or
engines specified in section 209(e)(1),
(2) is not technologically infeasible for
manufacturers to meet the standards
within the lead time provided, or (3)
does not establish test procedures
inconsistent with federal test
procedures for the same vehicle class,
per section 209(b)(1)(C). First, ATVs are
defined as being designed for offhighway use,47 so the regulation does
not seek to regulate ‘‘motor vehicles’’
and is consistent with section 209(a).
Second, ATVs are not among the classes
of vehicles permanently preempted by
federal regulations and so this
amendment is consistent with section
209(e)(1). Third and finally, there is no
evidence of inadequate lead time to
permit technological development for
compliance with the amendment, nor
are the CARB test procedures regarding
ATVs made inconsistent with federal
test procedures by this amendment. We
therefore find no evidence that the
amendment is inconsistent with section
209 of the Act.
42 See
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44 2000
46 2004
45 40
47 13
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CFR 1051.1(a)(3)
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Having met the three criteria for full
authorization, the amendment to add
vehicles over 600 lb gross weight to
California’s OHRV emission standards
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B. California’s 2003 Amendment
The sole 2003 amendment presented
for authorization is a change in the
effective date of the riding season use
restrictions for red-tagged vehicles from
1999 (the date of the original
amendments) to 2003. California
requested that EPA evaluate this
amendment as within the scope of the
earlier authorization.
Following the passage of the 1999
amendments, California’s Department of
Motor Vehicles (DMV) and Department
of Parks and Recreation (DPR) were
unable to properly enforce the new
regulations as written, due to a lack of
institutional resources and problems
with DMV’s registration system. This
resulted in inconsistencies in the
labeling and certification of some
OHRVs. For example, some nonemissions-compliant OHRVs, which
should have been red-tagged, were
registered with green tags, and some
emissions-compliant OHRVs, which
should have been green-tagged, were
registered with red stickers.48 As of
2003, however, the implementing
agencies, DMV and DPR, committed to
automate the OHRV registration system
and enforce the riding season
limitations. The amendment to change
the riding season use restrictions to
apply only to 2003 MY and later
vehicles was intended to ‘‘simply reflect
the delay in riding season enforcement
that occurred in the field by the land
management agencies.’’ 49
California asserted that the
amendment met all three within-thescope criteria, i.e. that it: (1) Does not
undermine the original protectiveness
determination underlying California’s
OHRV regulations, (2) does not affect
the consistency of the OHRV regulations
with section 202(a), and (3) does not
raise any new issues affecting the prior
authorization.50 We received no adverse
comments or evidence suggesting a
within-the-scope analysis is
inappropriate, or that the 2003
amendment fails to meet any of the
three criteria for within-the-scope
confirmation.
First, California asserted that the
amendment to the effective start date of
the red tag program clearly did not
48 ‘‘State of California Air Resources Board, Initial
Statement of Reasons,’’ June 6, 2003, EPA–HQ–
OAR–2012–0742–0010, at 4.
49 Id.
50 2004 Request, supra note 2, at 2.
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undermine the original protectiveness
determination underlying California’s
OHRV regulations because it does not
change any of the substantive criteria or
parameters of that program, but rather is
an administrative date change.
Furthermore, at the time the request was
made (2004), the federal standards were
not yet effective until MY 2006, so
California’s program remained without a
federal parallel even during the period
between the intended start date and the
amended start date.51 We therefore
cannot find that the delay in the
effective date of the red tag program
undermines the protectiveness
determination made with regard to the
original red tag program.
Second, this amendment did not
attempt to regulate new motor vehicles
or motor vehicle engines and so is
consistent with section 209(a). It
likewise did not attempt to regulate any
of the permanently preempted engines
or vehicles, and so is consistent with
section 209(e)(1). Finally, it did not
cause any technological feasibility
issues for manufacturers or cause
inconsistency between state and federal
test procedures, per section 209(b)(1)(C).
The difficulties in implementing the red
tag program as written in 1999 were not
due to technological difficulties for
manufacturers but rather to the state’s
administrative difficulties. There were
therefore no lead-time or technological
problems created by the delayed start
date amendment. In fact, to the extent
that there were problems at all relevant
to the red tag program, these were
administrative problems that were
relieved by the delayed start date. The
delayed start date had no bearing on the
consistency between the California and
federal certification requirements. We
therefore find no evidence that the
delayed start date amendment is
inconsistent with section 209 of the Act.
Third, California stated that the
delayed start date raised no new issues,
and we have received no evidence to the
contrary. The change in date was a
purely ministerial change, especially
considering that at the time the
amendment was promulgated, the
comparable federal standards had not
yet come into effect. We therefore do not
find any new issues raised by the
delayed start date amendment.
Having received no contrary evidence
or comments regarding this amendment,
we find that California has met the three
criteria for a within-the-scope
authorization approval. Therefore, the
amendment delaying the start date for
California’s red tag program must be
confirmed as within the scope of the
51 Id.
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previous authorization of California’s
OHRV regulations.
C. California’s 2006 Amendments
1. Evaporative Emission Standards
In 2006, California added evaporative
emission standards for 2008 and later
model year OHRVs to align with federal
evaporative emission standards that also
began with the 2008 model year, and in
2010 requested a full authorization for
the inclusion of these standards. The
California standards (1.5 g/m2/day for
fuel tank permeation and 15.0 g/m2/day
for fuel hose permeation) were exactly
the same as the federal standards,52 with
identical test procedures. Both the
California and federal standards remain
the same as of this date. We received no
evidence or comments contradicting or
challenging authorization of this
amendment.
First, CARB stated that these
standards are at least as protective of
public health and welfare, in the
aggregate, as the federal standards,
because they are identical with the
federal standards.53 Considering the
equivalence of the federal and California
evaporative emission standards and
having received no evidence to the
contrary, we cannot find that
California’s protectiveness
determination regarding the OHRV
evaporative emission standards is
arbitrary or capricious.
Second, California reiterated its
longstanding position that compelling
and extraordinary conditions in the
state still need to be addressed through
separate California nonroad engine and
vehicle regulations.54 We find no
evidence to contradict California’s
determination that the new evaporative
standards are part of an overall
approach to reducing the state’s air
pollution problems, and that the state
still needs its own program to address
the ‘‘compelling and extraordinary
conditions’’ that continue to exist in
California.
Third, California stated that the
evaporative emission standards are
consistent with CAA section 209
because they apply to classes of vehicles
that EPA already evaluated and found to
be consistent in previous
authorizations.55 In those decisions,
EPA found that these vehicle categories
are not ‘‘new motor vehicles’’
preempted under CAA section 209(a)
52 40
CFR 1051.110.
Request, supra note 2, at 7.
54 Id. at 8.
55 For references to EPA authorizations of these
standards under Large Spark Ignition (LSI) and
Small Off-Road Engines (SORE) regulations, see
2010 Request, supra note 2, at fn 9, fn 10.
53 2010
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nor are they engines specifically
preempted by CAA section 209(e)(1).
California stated that the amendment is
consistent with section 209(b)(1)(C)
because the evaporative standards are
identical to the federal standards that
EPA already found to provide adequate
lead time for technological
development, and because
manufacturers could use the same test
vehicle to demonstrate emissions
compliance with both the federal and
California standards. Having received
no evidence to contradict these
statements, we do not find that the
evaporative emissions standards are
inconsistent with section 209 of the Act.
Having found the request meets the
three criteria for a full authorization,
EPA must authorize the amendment of
California’s evaporative emissions
standard.
2. Reclassification of Sand Cars, OffRoad Utility Vehicles and Off-Road
Sport Vehicles as OHRVs
The 2006 amendments reclassified
sand cars, off-road utility vehicles and
off-road sport vehicles (also known as
‘‘Class II and Class III’’ ATV-like
vehicles) as OHRVs. The reclassification
aligned California’s regulations with the
federal classification of these vehicle
categories.56 Each of these vehicle
categories had previously been
regulated under other federallyauthorized California regulations as
small off-road or large off-road sparkignition engines.57 The amendments
also harmonized the carbon monoxide
(CO) emission standard with the federal
CO ATV emission standard (400 g/kWhr) and maintained the existing CO +
nitrogen oxides (NOX) emission
standard (12 g/kW-hr), which is more
strict than the parallel federal standard
(13.4 g/kW).58 California requested a
within-the-scope determination for
these amendments. EPA received no
adverse comments or evidence
contradicting California’s request to
consider these amendments as within
the scope of the previous authorization.
First, California found that the
reclassification amendment does not
undermine the original protectiveness
determination regarding its OHRV
regulations because it further aligns
them with the federal classification
system for OHRVs. California asserted
that the amended regulation therefore
remains at least as protective as the
federal standards.59 Also, as noted
above, the emission standards for ATVs
40 CFR 1051.1(a)(4).
supra note 55.
58 See 40 CFR 1051.107(a)(1).
59 2010 Request, supra note 2, at 8.
in California are clearly at least as
protective as the federal standards,
mirroring the federal CO standard and
exceeding the stringency of the federal
CO + NOX standard. Based on the record
before us and in the absence of any
evidence to the contrary, we cannot find
that California’s protectiveness
determination regarding the
reclassification of these vehicles as
OHRVs is arbitrary or capricious.
Second, California found that the
amendment does not affect consistency
with section 209 of the Act. The vehicle
categories to which this amendment
applies have already been deemed
consistent with sections 209(a) and
209(e)(1) by EPA when they were
considered as part of the large spark
ignition and small off-road engine
regulation authorizations.60 Further,
California found that application of the
OHRV standards to the new vehicle
classes is consistent with section
209(b)(1)(C) because manufacturers had
already been complying with the
standards for more than two years at the
time of California’s request. The exhaust
standards were phased in by model year
2007 and evaporative standards were
phased in by model year 2008. Also, the
test procedures authorized by California
are identical to those adopted federally,
so a single test vehicle could be used for
both state and federal testing.61 We
conclude that the amendment has no
bearing on the consistency between the
California and federal certification
requirements, and no evidence
contradicting California’s determination
that the amendment is consistent with
section 209(b)(1)(C). We therefore do not
find the amendment is inconsistent with
section 209 of the Act.
Third, California was unaware of any
new issues that would arise from the
inclusion of these three new classes of
vehicles under their OHRV regulations
and standards.62 EPA similarly finds no
new issues arising from the amendment.
Having received no evidence or
comments to the contrary, we find that
California’s 2006 amendment to
reclassify off-road sport vehicles, offroad utility vehicles, and sand cars as
OHRVs meets the three criteria for a
within-the-scope determination. We
therefore find that this amendment is
within the scope of the previous
authorization of the OHRV program.
3. Amendment of Riding Seasons and
Areas List
Third, the list of riding areas and
riding seasons was amended. California
56 See
57 See
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60 See
supra note 55.
61 2010 Request, supra note 2, at 9.
62 Id.
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6591
asserted that this amendment does not
require EPA authorization because it
pertains to an operational control that
cannot be federally preempted, pursuant
to section 209(d) of the Act.63 Under
section 209(d), nothing in Subchapter II,
Part A of the Act restricts states’ ability
to ‘‘control, regulate, or restrict the use,
operation or movement of registered or
licensed motor vehicles.’’ California
therefore requested that EPA confirm
that the riding season restriction
amendment was and is enforceable
without further action by the EPA
Administrator. Amendments to the
times and places where certain vehicles
are allowed to operate is the very
essence of an ‘‘operational control.’’
EPA received no comments challenging
or denying California’s proposed
treatment. Therefore, EPA confirms that
the amended list of riding seasons and
areas does not require authorization by
the Administrator because it is not
federally preempted by the Act.
III. Decision
The Administrator has delegated the
authority to grant California section
209(e) authorizations to the Assistant
Administrator for Air and Radiation.
After evaluating CARB’s amendments to
its OHRV regulations described above
and CARB’s submissions for EPA
review, EPA is taking the following
actions.
First, EPA is granting an authorization
for both the red tag certification program
and the removal of the exemption for
competition models from California’s
OHRV regulations. Second, EPA is
granting an authorization for the
removal of the 600 lb weight limit from
the definition of ATV in California’s
OHRV regulations. Third, EPA confirms
that California’s 2003 amendment to
delay the start date of the red tag
program is within the scope of the
previous authorization. Fourth, EPA is
granting an authorization for the
addition of evaporative emission
standards to California’s OHRV
regulations, starting with the 2008
model year. Fifth, EPA confirms that
California’s 2006 amendment to
reclassify sand cars, off-road utility
vehicles, and off-road sports vehicles as
OHRVs is within the scope of the
previous authorization. Finally, EPA
confirms that amendments to the list of
riding areas and seasons for California’s
red-tagged OHRVs are not preempted by
the Act and do not require EPA
authorization.
63 See Id. California also requested that in the
alternative, the riding areas/seasons amendment be
considered within the scope of the 1996
authorization.
E:\FR\FM\04FEN1.SGM
04FEN1
6592
Federal Register / Vol. 79, No. 23 / Tuesday, February 4, 2014 / Notices
My decision will affect not only
persons in California, but also
manufacturers outside the state who
must comply with California’s
requirements in order to produce
vehicles for sale in California. For this
reason, I determine and find that this is
a final action of national applicability,
and also a final action of nationwide
scope and effect, for purposes of section
307(b)(1) of the Act. Pursuant to section
307(b)(1) of the Act, judicial review of
this final action may be sought only in
the United States Court of Appeals for
the District of Columbia Circuit.
Petitions for review must be filed by
April 7, 2014. Judicial review of this
final action may not be obtained in
subsequent enforcement proceedings,
pursuant to section 307(b)(2) of the Act.
IV. Statutory and Executive Order
Reviews
As with past authorization and waiver
decisions, this action is not a rule as
defined by Executive Order 12866.
Therefore, it is exempt from review by
the Office of Management and Budget as
required for rules and regulations by
Executive Order 12866.
In addition, this action is not a rule
as defined in the Regulatory Flexibility
Act, 5 U.S.C. 601(2). Therefore, EPA has
not prepared a supporting regulatory
flexibility analysis addressing the
impact of this action on small business
entities.
Further, the Congressional Review
Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory
Enforcement Fairness Act of 1996, does
not apply because this action is not a
rule for purposes of 5 U.S.C. 804(3).
Dated: January 27, 2014.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air
and Radiation.
Air Act 111(d) standards). The EPA
established the CAAAC on November
19, 1990, to provide independent advice
and counsel to EPA on policy issues
associated with implementation of the
Clean Air Act of 1990. The Committee
advises on economic, environmental,
technical, scientific and enforcement
policy issues.
DATES & ADDRESSES: Pursuant to 5
U.S.C. App. 2 Section 10(a) (2), notice
is hereby given that the CAAAC will
hold a webinar on EPA’s greenhouse gas
standards (i.e., the Clean Air Act 111(d)
standards) on February 20, 2014, from
2:00 p.m. to 4:00 p.m. (Eastern Time).
Inspection of Committee Documents:
Documents prepared for the meeting
will be publicly available on the
CAAAC Web site at https://www.epa.gov/
oar/caaac/ prior to the meeting.
Thereafter, these documents will be
available by contacting the Office of Air
and Radiation Docket and requesting
information under docket EPA–HQ–
OAR–2004–0075. The Docket office can
be reached by email at: a-and-r-Docket@
epa.gov or FAX: 202–566–9744.
FOR FURTHER INFORMATION CONTACT: Any
member of the public who wants further
information concerning the CAAAC’s
public webinar may contact Jeneva
Craig, Designated Federal Officer (DFO),
Office of Air and Radiation, U.S. EPA by
telephone at (202) 564–1674 or by email
at craig.jeneva@epa.gov. Additional
information on these meetings can be
found on the CAAAC Web site: https://
www.epa.gov/oar/caaac/.
For information on access or services
for individuals with disabilities, please
contact Ms. Jeneva Craig at (202) 564–
1674 or craig.jeneva@epa.gov,
preferably at least 10 days prior to the
meeting to give EPA as much time as
possible to process your request.
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
Dated: January 28, 2014.
Jeneva Craig,
Designated Federal Officer, Clean Air Act
Advisory Committee, Office of Air and
Radiation.
[FR Doc. 2014–02301 Filed 2–3–14; 8:45 am]
[FR Doc. 2014–02297 Filed 2–3–14; 8:45 am]
BILLING CODE 6560–50–P
[FRL–NN06–15–OAR]
Notification of a Public Webinar for the
Clean Air Act Advisory Committee
(CAAAC)
mstockstill on DSK4VPTVN1PROD with NOTICES
AGENCY:
Environmental Protection
Agency.
Notice of meeting.
ACTION:
The Environmental Protection
Agency (EPA) announces a public
webinar for the Clean Air Act Advisory
Committee (CAAAC) on EPA’s
greenhouse gas standards (i.e., the Clean
SUMMARY:
VerDate Mar<15>2010
20:14 Feb 03, 2014
Jkt 232001
FEDERAL TRADE COMMISSION
Agency Information Collection
Activities: Proposed Collection;
Comment Request; Generic Clearance
for the Collection of Qualitative
Feedback on Agency Service Delivery
Division of Consumer and
Business Education, Federal Trade
Commission (‘‘FTC’’ or ‘‘Commission’’).
ACTION: Notice.
AGENCY:
PO 00000
Frm 00062
Fmt 4703
Sfmt 4703
The information collection
requirements described below will be
submitted to the Office of Management
and Budget (‘‘OMB’’) for review, as
required by the Paperwork Reduction
Act (‘‘PRA’’). The FTC is seeking public
comments on its proposal to renew its
PRA clearance to participate in the OMB
program ‘‘Generic Clearance for the
Collection of Qualitative Feedback on
Agency Service Delivery.’’ This program
was created to facilitate federal
agencies’ efforts to streamline the
process to seek public feedback on
service delivery. Current FTC clearance
under this program expires May 31,
2014.
DATES: Comments must be submitted by
April 7, 2014.
ADDRESSES: Interested parties may file a
comment online or on paper, by
following the instructions in the
Request for Comment part of the
SUPPLEMENTARY INFORMATION section
below. Write ‘‘FTC Generic Clearance
ICR, Project No. P035201’’ on your
comment, and file your comment online
at https://ftcpublic.commentworks.com/
ftc/genericclearance by following the
instructions on the web-based form. If
you prefer to file your comment on
paper, mail or deliver your comment to
the following address: Federal Trade
Commission, Office of the Secretary,
Room H–113 (Annex J), 600
Pennsylvania Avenue NW., Washington,
DC 20580.
FOR FURTHER INFORMATION CONTACT: To
request additional information, please
contact Nicole Vincent Fleming at 202–
326–2372.
SUPPLEMENTARY INFORMATION: Executive
Order 12862 (1993) (‘‘Setting Customer
Service Standards’’) directs all Federal
executive departments and agencies and
requests independent Federal agencies’
to provide service to ‘‘customers’’ that
matches or exceeds the best service
available in the private sector. See also
Executive Order 13571 (2011)
(‘‘Streamlining Service Delivery and
Improving Customer Service’’). For
purposes of these orders, ‘‘customer’’
means an individual who or entity that
is directly served by a department or
agency.
To the above ends, and to work
continuously to ensure that the FTC’s
programs are effective and meet our
customers’ needs, we seek renewed
OMB approval of a generic clearance to
collect qualitative feedback on our
service delivery (i.e., the products and
services that the FTC creates to help
consumers and businesses understand
their rights and responsibilities,
including Web sites, blogs, videos, print
publications, and other content).
SUMMARY:
E:\FR\FM\04FEN1.SGM
04FEN1
Agencies
[Federal Register Volume 79, Number 23 (Tuesday, February 4, 2014)]
[Notices]
[Pages 6584-6592]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02297]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2012-0742; FRL 9906-14-OAR]
California State Nonroad Engine Pollution Control Standards; Off-
Highway Recreational Vehicles and Engines; Notice of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of decision.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is granting the
California Air Resources Board's (CARB's) request for authorization of
amendments to California's Off-Highway Recreational Vehicles and
Engines (OHRV) regulations, confirming that certain OHRV amendments are
within-the-scope of prior EPA authorizations, and confirming that
certain OHRV amendments are not preempted by Clean Air Act. CARB's OHRV
regulations apply to all off-highway recreational vehicles (and to
engines manufactured for use in such vehicles) produced on or after
January 1, 1997, for sale, lease, use and introduction into commerce in
California. This decision is issued under the authority of the Clean
Air Act (CAA or Act).
DATES: Petitions for review must be filed by April 7, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2012-0742. All documents relied upon in making this
decision, including those submitted to EPA by CARB, are contained in
the public docket. Publicly available docket materials are available
either electronically through 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 working 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 https://www.epa.gov/oar/docket.html. The electronic mail (email) 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 https://www.regulations.gov. After opening the
www.regulations.gov Web site, enter EPA-HQ-OAR-2012-0742 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 (``OTAQ'') maintains
a Web page that contains general information on its review of
California waiver and authorization requests. Included on that page are
links to prior waiver Federal Register notices, some of which are cited
in today's notice; the page can be accessed at https://www.epa.gov/otaq/cafr.htm.
FOR FURTHER INFORMATION CONTACT: Suzanne Bessette, Attorney-Advisor,
Compliance Division, Office of Transportation and Air Quality, U.S.
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105. Telephone: (734) 214-4703. Fax: (734) 214-4053. Email:
bessette.suzanne@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
In 1994, CARB adopted emission standards and test procedures for
OHRVs. At that time, there were no analogous federal standards
regulating emissions from the vehicles and engines covered by
California's OHRV regulations. EPA authorized CARB's 1994 OHRV
regulations in 1996.\1\ California subsequently adopted three rounds of
amendments to these regulations, the first in 1999, the second in 2003,
and the third in 2006. CARB requested that EPA authorize each of these
three amendment packages in letters dated March 24, 2000, November 19,
2004, and March 24, 2010, respectively.\2\ The March 24, 2010 request
explicitly incorporates the previous two requests, and EPA here
considers all three requests concurrently.
---------------------------------------------------------------------------
\1\ ``California State Nonroad Engine and Vehicle Pollution
Control Standards; Authorization of State Standards; Notice of
Decision,'' 61 FR 69093 (December 31, 1996).
\2\ CARB Request for Authorization Letter, March 24, 2000
(``2000 Request''), EPA-HQ-OAR-2012-0742-0002; CARB Request for
Authorization Letter, February 19, 2004 (``2004 Request''), EPA-HQ-
OAR-2012-0742-0008; CARB Request for Authorization Letter, March 24,
2010 (``2010 Request''), EPA-HQ-OAR-2012-0742-0014.
---------------------------------------------------------------------------
A. California's Authorization Requests
The 1999 OHRV amendments did not change the numerical exhaust
emission standards for OHRVs, but added a new compliance category that
allowed OHRVs not meeting the applicable emissions standards to be
certified subject to use restrictions (i.e., use in specified areas
during specified times of the year). Such non-emissions-compliant OHRVs
would be identified with a red sticker or ``red tag,'' while emissions-
compliant OHRVs would be identified with a green sticker or ``green
tag.'' The amendments also removed a competition vehicle exemption
provision and added all-terrain vehicles (ATVs) over 600 pounds (lbs)
to the existing definition of ATV. CARB requested that EPA confirm a
within-the-scope determination for the red tag program and for the
removal of the competition exemption, and grant a full authorization
for the addition of ATVs over 600 lbs.
According to CARB, the goal of the 1999 amendments was to provide
economic relief to vehicle dealers in California who were contractually
bound to sell products that did not meet the emission standards
California established in 1994.\3\ Prior to the 1999 amendments, two-
stroke off-highway motorcycles could only be sold as competition
models, and their use was limited to closed-course competitions.
Following the amendments, such competition vehicles would be red tagged
and allowed to operate during certain times of the year in certain
geographic areas. The amendments provided for red tagged vehicles to be
certified and sold in California and to be
[[Page 6585]]
operated in two situations. First, in ``unlimited use areas,'' which
are certain recreational use areas located in regions in attainment
with the National Ambient Air Quality Standard (NAAQS) for ozone, red-
tagged vehicles could be used without restriction, year-round. Second,
in ``limited use areas,'' which are certain recreational use areas
located in regions classified as nonattainment for the ozone NAAQS,
red-tagged vehicles could be used only during ``riding seasons''
specified for each area. The riding seasons in limited use areas
restricted the operation of red-tagged vehicles during peak ozone
periods, when the area was typically not in attainment with the ozone
standard, usually the summer months. Out of more than 100 designated
riding areas, approximately one-third were unlimited use areas and two-
thirds were limited use areas.\4\ The vast majority of the riding areas
were established on public lands managed by the California Department
of Parks and Recreation, the United States Forest Service, or the
United States Bureau of Land Management. CARB predicted that the red
tag program would result in lower emissions from OHRVs in limited use
areas during peak ozone periods, but higher emissions and a ``possible
minor impact on PM or toxics'' in unlimited use areas, limited use
areas during non-peak seasons, and on a state-wide average.\5\ However,
these predicted increases in emissions from OHRVs were expected to
increase pollutants of concern only negligibly, and to have no impact
on ozone air quality since exceedances of the ozone standard would not
occur during the period in which riding was allowed.\6\
---------------------------------------------------------------------------
\3\ 2000 Request, supra note 2, at 2.
\4\ ``Initial Statement of Reasons, Public Hearing to Consider
Amendments to the California Regulations for New 1997 and Later Off-
Highway Recreational Vehicles and Engines,'' October 23, 1999, EPA-
HQ-OAR-2012-0742-0030, at 6.
\5\ Id. at 8.CARB predicted lower emissions in limited use areas
because red tag vehicles would be prohibited there during peak ozone
seasons, whereas prior to the amendments these vehicles would have
been covered by the competition exemption and their use would have
been allowed year round.
\6\ Id. at 7.
---------------------------------------------------------------------------
The 2003 amendment modified the OHRV regulations to change and
clarify the start date of the red tag program. California's
authorization request stated that the regulatory change was needed to
correct the ``practical delay'' in enforcement of the 1999 red tag
program and to confirm that the riding season use restrictions would
begin with the 2003 model year.\7\ CARB sought a within-the-scope
determination for this amendment.\8\
---------------------------------------------------------------------------
\7\ 2004 Request, supra note 2, at 1.
\8\ At the same time, CARB argued that future amendments of
riding seasons and riding areas should not be subject to EPA
approval, because they should be treated as ``operational controls''
not preempted under section 209(d) of the Clean Air Act. Id. at note
1.
---------------------------------------------------------------------------
The 2006 amendments made three further changes to California's OHRV
regulations. First, California added evaporative emission standards for
OHRVs that aligned with federal standards for 2008 and later model year
vehicles. Second, the amendments reclassified sand cars, off-road
utility vehicles and off-road sport vehicles as OHRVs, to align with
the federal classification of these vehicles. Each of these vehicle
categories had previously been regulated under other federally-
authorized California regulations as small off-road or large off-road
spark-ignition engines. The 2006 amendments set new emission standards
for these three additional classes of vehicles that aligned with or
exceeded the stringency of federal standards.\9\ Third, the list of
riding areas and riding seasons was amended to add a few new attainment
areas.
---------------------------------------------------------------------------
\9\ 2010 Request, supra note 2, at 4-6.
---------------------------------------------------------------------------
CARB's 2010 request regarding the 2006 amendments sought (1) a full
authorization for the evaporative emissions standard, (2) a within-the-
scope determination for the reclassification of sand cars, off-road
sport vehicles and off-road utility vehicles, and (3) a declaration
that the riding areas and riding seasons amendment does not require EPA
authorization because the designation of seasonal and geographical use
specifications is an operational control and is accordingly not
preempted by section 209 of the Act.\10\ California also requested, in
the alternative, that the riding season amendments be considered within
the scope of EPA's 1996 authorization of CARB's 1994 OHRV regulations.
Finally, CARB requested that EPA concurrently consider and render a
decision on the pending authorization requests for the 1999 and 2003
amendments.
---------------------------------------------------------------------------
\10\ Id. at 1-2.
---------------------------------------------------------------------------
B. 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.\11\ For all other nonroad
engines (including ``non-new'' engines), states generally are preempted
from adopting and enforcing standards and other requirements relating
to the control of emissions, except that section 209(e)(2)(A) of the
Act requires EPA, after notice and opportunity for public hearing, to
authorize California to adopt and enforce such regulations unless EPA
makes one of three enumerated findings. Specifically, EPA must deny
authorization if the Administrator finds that (1) California's
protectiveness determination (i.e., that California standards will be,
in the aggregate, as protective of public health and welfare as
applicable federal standards) is arbitrary and capricious, (2)
California does not need such standards to meet compelling and
extraordinary conditions, or (3) the California standards and
accompanying enforcement procedures are not consistent with section 209
of the Act.
---------------------------------------------------------------------------
\11\ States are expressly preempted from adopting or attempting
to enforce any standard or other requirement relating to the control
of emissions from new nonroad engines which are used in construction
equipment or vehicles or used in farm equipment or vehicles and
which are smaller than 175 horsepower. Such express preemption under
section 209(e)(1) of the Act also applies to new locomotives or new
engines used in locomotives.
---------------------------------------------------------------------------
On July 20, 1994, EPA promulgated a rule interpreting the three
criteria set forth in section 209(e)(2)(A) that EPA must consider
before granting any California authorization request for nonroad engine
or vehicle emission standards.\12\ EPA revised these regulations in
1997.\13\ As stated in the preamble to the 1994 rule, EPA historically
has interpreted the consistency inquiry under the third criterion,
outlined above and set forth in section 209(e)(2)(A)(iii), 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) of the Act.\14\
---------------------------------------------------------------------------
\12\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
\13\ See ``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,'' 62 FR 67733 (December 30, 1997).
The applicable regulations are now found in 40 CFR part 1074,
subpart B, section 1074.105.
\14\ See supra note 12. EPA has interpreted 209(b)(1)(C) in the
context of section 209(b) motor vehicle waivers.
---------------------------------------------------------------------------
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
[[Page 6586]]
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 under
section 209(b)(1)(C). That provision provides that the Administrator
shall not grant California a motor vehicle waiver 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 will be found to be 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.
In light of the similar language of sections 209(b) and
209(e)(2)(A), EPA has reviewed California's requests for authorization
of nonroad vehicle or engine standards under section 209(e)(2)(A) using
the same principles that it has historically applied in reviewing
requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards under section 209(b).\15\ These principles
include, among other things, that EPA should limit its inquiry to the
three specific authorization criteria identified in section
209(e)(2)(A),\16\ and that EPA should give substantial deference to the
policy judgments California has made in adopting its regulations. In
previous waiver decisions, EPA has stated that Congress intended EPA's
review of California's decision-making be narrow. EPA has rejected
arguments that are not specified in the statute as grounds for denying
a waiver:
---------------------------------------------------------------------------
\15\ See Engine Manufacturers Association v. EPA, 88 F.3d 1075,
1087 (D.C. Cir. 1996): ``. . . EPA was within the bounds of
permissible construction in analogizing Sec. 209(e) on nonroad
sources to Sec. 209(a) on motor vehicles.''
\16\ See supra note 12, at 36983.
The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in California air
quality not commensurate with its costs or is otherwise an arguably
unwise exercise of regulatory power is not legally pertinent to my
decision under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\17\
---------------------------------------------------------------------------
\17\ ``Waiver of Application of Clean Air Act to California
State Standards,'' 36 FR 17458 (Aug. 31, 1971). Note that the more
stringent standard expressed here, in 1971, was superseded by the
1977 amendments to section 209, which established that California
must determine that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. In the 1990 amendments to section 209, Congress
established section 209(e) and similar language in section
209(e)(1)(i) pertaining to California's nonroad emission standards
which California must determine to be, in the aggregate, at least as
protective of public health and welfare as applicable federal
standards.
This principle of narrow EPA review has been upheld by the U.S. Court
of Appeals for the District of Columbia Circuit.\18\ Thus, EPA's
consideration of all the evidence submitted concerning an authorization
decision is circumscribed by its relevance to those questions that may
be considered under section 209(e)(2)(A).
---------------------------------------------------------------------------
\18\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I'').
---------------------------------------------------------------------------
C. Within-the-Scope Determinations
If California amends regulations that were previously authorized by
EPA, California may ask EPA to determine that the amendments are within
the scope of the earlier authorization. A within-the-scope
determination for such amendments is permissible without a full
authorization review if three conditions are met. First, the amended
regulations must not undermine California's previous 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 209 of the Act,
following the same criteria discussed above in the context of full
authorizations. Third, the amended regulations must not raise any ``new
issues'' affecting EPA's prior waivers.\19\
---------------------------------------------------------------------------
\19\ See ``California State Motor Vehicle Pollution Control
Standards; Amendments Within the Scope of Previous Waiver of Federal
Preemption,'' 46 FR 36742 (July 15, 1981).
---------------------------------------------------------------------------
D. Burden and Standard of Proof
As the U.S. Court of Appeals for the D.C. Circuit has made clear in
MEMA I, opponents of a waiver request by California bear the burden of
showing that the statutory criteria for a denial of the request have
been met:
[T]he language of the statute and its legislative history
indicate that California's regulations, and California's
determinations that they must comply with the statute, when
presented to the Administrator are presumed to satisfy the waiver
requirements and that the burden of proving otherwise is on whoever
attacks them. California must present its regulations and findings
at the hearing and thereafter the parties opposing the waiver
request bear the burden of persuading the Administrator that the
waiver request should be denied.\20\
---------------------------------------------------------------------------
\20\ MEMA I, supra note 19, at 1121.
The Administrator's burden, on the other hand, is to make a reasonable
evaluation of the information in the record in coming to the waiver
decision. As the court in MEMA I stated: ``here, too, if the
Administrator ignores evidence demonstrating that the waiver should not
be granted, or if he seeks to overcome that evidence with unsupported
assumptions of his own, he runs the risk of having his waiver decision
set aside as `arbitrary and capricious.' '' \21\ Therefore, the
Administrator's burden is to act ``reasonably.'' \22\
---------------------------------------------------------------------------
\21\ Id. at 1126.
\22\ Id. at 1126.
---------------------------------------------------------------------------
With regard to the standard of proof, the court in MEMA I explained
that the Administrator's role in a section 209 proceeding is to:
[. . .]consider all evidence that passes the threshold test of
materiality and * * * thereafter assess such material evidence
against a standard of proof to determine whether the parties
favoring a denial of the waiver have shown that the factual
circumstances exist in which Congress intended a denial of the
waiver.\23\
---------------------------------------------------------------------------
\23\ Id. at 1122.
In that decision, the court considered the standards of proof under
section 209 for the two findings related to granting a waiver for an
``accompanying enforcement procedure.'' Those findings involve: (1)
Whether the enforcement procedures impact California's prior
protectiveness determination for the associated standards, and (2)
whether the procedures are consistent with section 202(a). The
principles set forth by the court, however, are similarly applicable to
an EPA review of a request for a waiver of preemption for a standard.
The court instructed that ``the standard of proof must take account of
the nature of the risk of error involved in any given decision, and it
therefore varies with the finding involved. We need not decide how this
standard operates in every waiver decision.'' \24\
---------------------------------------------------------------------------
\24\ Id.
---------------------------------------------------------------------------
With regard to the protectiveness finding, the court upheld the
Administrator's position that, to deny a waiver, there must be ``clear
and compelling evidence'' to show that proposed enforcement procedures
undermine the protectiveness of California's standards.\25\ The court
noted that this standard of proof also accords with the congressional
intent to
[[Page 6587]]
provide California with the broadest possible discretion in setting
regulations it finds protective of the public health and welfare.\26\
---------------------------------------------------------------------------
\25\ Id.
\26\ Id.
---------------------------------------------------------------------------
With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all proceedings, but found
that the opponents of the waiver were unable to meet their burden of
proof even if the standard were a mere preponderance of the evidence.
Although MEMA I did not explicitly consider the standards of proof
under section 209 concerning a waiver request for ``standards,'' '' as
compared to a waiver request for accompanying enforcement procedures,
there is nothing in the opinion to suggest that the court's analysis
would not apply with equal force to such determinations. EPA's past
waiver decisions have consistently made clear that: ``[E]ven in the two
areas concededly reserved for Federal judgment by this legislation--the
existence of `compelling and extraordinary' conditions and whether the
standards are technologically feasible--Congress intended that the
standards of EPA review of the State decision to be a narrow one.''
\27\
---------------------------------------------------------------------------
\27\ See, e.g., ``California State Motor Vehicle Pollution
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May
28, 1975), at 23103.
---------------------------------------------------------------------------
E. EPA's Administrative Process in Consideration of California's OHRV
Amendment Requests for Authorization
On January 4, 2013, EPA published a Federal Register notice
announcing its receipt of California's authorization request. In that
notice, EPA invited public comment on each of the 2006 amendments, as
well as on the prior authorization requests for amendments California
adopted in 1999 and 2003.\28\ The request for comments specifically
referred, but was not limited, to the following issues.
---------------------------------------------------------------------------
\28\ ``California State Nonroad Engine Pollution Control
Standards; Off-Highway Recreational Vehicles and Engines; Request
for Authorization; Opportunity for Public Hearing and Comment,'' 78
FR 724, (January 4, 2013).
---------------------------------------------------------------------------
First, EPA requested comment on the 1999 amendments, as follows:
(1) Should California's 1999 OHRV amendments, specifically the
provision for certification of OHRVs that do not meet the emissions
criteria (the red tag amendment) and the removal of the competition
exemption, be considered under the within-the-scope analysis, or should
they be considered under the full authorization criteria? (2) If those
amendments should be considered as a within-the-scope request, do they
meet the criteria for EPA to grant a within-the-scope confirmation? (3)
Alternatively, if the red tag amendment and removal of the competition
exemption should not be considered under the within-the-scope analysis,
or in the event that EPA determines they are not within the scope of
the previous authorization, do they meet the criteria for making a full
authorization determination? (4) Does the removal of the 600 lb weight
limitation in the definition of ATV meet the criteria for making a full
authorization determination?
Second, regarding the 2003 amendment, EPA requested comment on the
following questions: (1) Whether the amendment limiting the red tag
program to model years 2003 and later should be evaluated under the
within-the-scope criteria, and if so, whether it meets the within-the-
scope criteria for authorization? (2) To the extent that the 2003
amendment should be treated as a full authorization request, does the
amendment meet the criteria for a full authorization?
Third, regarding the 2006 amendments, we requested comment on the
following: (1) Does the amendment setting evaporative emissions
standards for OHRVs meet the criteria for a full authorization? (2)
Does the amendment reclassifying sand cars, off-road sport vehicles and
off-road utility vehicles as OHRVs fall within the scope of the
original (1996) authorization? (3) Does the amendment altering the list
of riding areas and riding seasons require federal authorization
review, or is it not federally preempted, pursuant to CAA section
209(d)? (4) If it is preempted and therefore requires federal
authorization, does the amended list of riding areas and seasons fall
within the scope of the original (1996) authorization?
In response to these requests for comment, EPA received an
additional submission from CARB.\29\ EPA received no written comments
from parties other than CARB and received no requests for a public
hearing. Consequently, EPA did not hold a public hearing.
---------------------------------------------------------------------------
\29\ Comment submitted by Richard W. Corey (CARB), July 23,
2013, EPA-HQ-OAR-2012-0742-0029.
---------------------------------------------------------------------------
CARB's July 23, 2013 submission provided additional and updated
information in support of its protectiveness determination for the red
tag program amendment, contained in the 1999 amendment package. CARB
compared its exemption for red-tagged vehicles to an analogous feature
in the federal regulations, which exempts competition model OHRVs from
federal emissions standards. After a detailed analysis comparing the
projected emissions effects of the federally exempted competition model
vehicles to California's red tagged vehicles, CARB concluded that its
OHRV program ``remains as protective in the aggregate as the federal
program.'' \30\
---------------------------------------------------------------------------
\30\ Id. at 2.
---------------------------------------------------------------------------
II. Discussion
A. California's 1999 Amendments
The 1999 amendment package contains three amendments, each briefly
described above: the removal of the competition exemption, the addition
of the red tag program, and the addition of vehicles over 600 lb to the
ATV vehicle category.
1. Removal of the Competition Exemption and Addition of the Red Tag
Program
California's request for authorization of the amendments (1)
removing the exemption from emission standard controls for competition
models, and (2) introducing the red tag certification program and
regional/seasonal restrictions for red-tagged vehicles are
interrelated, and therefore will be treated together in this
discussion. As explained by CARB in its 2000 authorization request,
``[s]ince all off-highway vehicles must now be certified as either
emissions-compliant with no use restrictions, or non-emissions-
compliant with use restrictions, the superfluous competition vehicle
definition was deleted.'' \31\ CARB asserted that the competition
vehicle designation and associated restrictions on the use of such
vehicles were made superfluous because such vehicles would be subsumed
in the non-emissions-compliant red tagged category of vehicles, and
their use would be limited to the newly designated riding areas and
seasons.
---------------------------------------------------------------------------
\31\ 2000 Request, supra note 2, at 4.
---------------------------------------------------------------------------
a. Within-the-Scope Analysis
California requested that the amendments establishing the red tag
program and removing the competition exemption both be treated as
within the scope of the original EPA authorization of the OHRV program.
California asserted that the amendments met all three within-the-scope
criteria, i.e. that the amendments: (1) Do not undermine the original
protectiveness determination underlying California's OHRV regulations,
(2) do not affect the consistency of the OHRV regulations with section
202(a), and (3) do not raise any new issues affecting the prior
authorization.\32\
---------------------------------------------------------------------------
\32\ Id. at 8-11.
---------------------------------------------------------------------------
[[Page 6588]]
Beginning with the third criterion, CARB asserted that ``[t]he
regional/seasonal approach, while establishing a new regulatory
section, does not force any change in technology to warrant revisiting
conclusions reached in granting the existing authorization.'' \33\ CARB
further stated that it was not aware of any new issues presented by the
red tag program or the removal of the competition exemption. EPA
appreciates that the regional/seasonal approach does not change the
numeric emissions standards or test procedures approved in the original
authorization of California's OHRV regulations. However, the shift from
exempting one class of vehicles (competition models) from those
standards to certifying and allowing a potentially different class of
vehicles (non-emissions-compliant vehicles) to operate regionally/
seasonally is a major change in the application and meaning of those
standards, the practical effects of which could have a significant
impact on the aggregate emissions of OHRVs in California. Furthermore,
while at the time of the request there were no comparable federal
regulations for OHRVs against which to compare California's
regulations, there are such federal regulations now.\34\ The analogous
federal program regulating OHRVs stands in stark contrast to
California's program, insofar as the federal program exempts
competition-only models from regulation (allowing their full and
unrestricted use) and does not allow non-competition, red-tagged
vehicles to be certified at all. Indeed, California's approach of
certifying red-tagged vehicles to operate in limited areas and/or
during limited seasons is without parallel in the field of federal
mobile source emissions regulations across all classes of vehicles.
---------------------------------------------------------------------------
\33\ Id. at 10.
\34\ See 40 CFR Part 1051, ``Control of Emissions From
Recreational Engines and Vehicles''.
---------------------------------------------------------------------------
EPA finds that the regional/seasonal program and removal of the
competition exemption fundamentally change California's previously
authorized OHRV program. First, they present a shift in the application
and potential practical effects of the previously authorized emission
standards. They also represent a significant departure from the
standard regulatory structure used in the parallel federal OHRV
emissions regulations. EPA consequently views these changes,
collectively, as a new issue that precludes a within-the-scope
determination. Since the ``new issue'' prong of the within-the-scope
criteria is not met, EPA must treat these amendments as full
authorization requests, and will analyze them as such.\35\
---------------------------------------------------------------------------
\35\ EPA cannot find that these amendments are within the scope
of the previous authorization because they failed to satisfy the
``new issue'' criterion. We must therefore proceed with a full
authorization analysis; there is no need to analyze whether the
other two prongs of the within-the-scope analysis are met.
---------------------------------------------------------------------------
b. Full Authorization Analysis
The first prong of the full authorization analysis is whether
California's protectiveness determination (that the standards including
the red tag program are, in the aggregate, at least as protective of
public health and welfare as otherwise applicable federal standards) is
arbitrary or capricious. California's original protectiveness
determination for these amendments was made at a time when no
comparable federal standards existed; therefore CARB's determination
that its standards were, in the aggregate, at least as protective as
the (non-existent) federal standards was relatively straightforward.
California's subsequent requests for authorization (2004 and 2010)
generally referred back to the original analysis and did not
substantively update the protectiveness determination. Regardless of
whether CARB's original protectiveness determination was or was not
arbitrary or capricious at the time it was made, EPA must now evaluate
California's determination in light of the current federal standards,
not those in place at the time California's regulations were
promulgated.\36\ For this reason, CARB submitted additional information
in response to our request for public comments to update its
protectiveness determination for the red tag program, considering
current federal OHRV standards.\37\
---------------------------------------------------------------------------
\36\ This does not mean that the original protectiveness
determination is arbitrary or capricious. See ``California State
Motor Vehicle Pollution Control Standards; Notice of Decision
granting a Waiver of Clean Air Act Preemption for California's
Advanced Clean Car Program and a Within-the-scope Confirmation for
California's Zero Emission Vehicle Amendments for 2017 and Earlier
Model Years,'' 78 FR 2112 (January 9, 2013), at 2124.
\37\ See supra note 29.
---------------------------------------------------------------------------
In its comments dated July 23, 2013, CARB presented a detailed
analysis and argument that the inclusion of the red tag program renders
its standards, in the aggregate, at least as protective as the current
federal standards. CARB's analysis was based on an ``apples-to-apples''
comparison of whether and how the federal and California regulations
would allow the sale of OHRVs, by referencing the list of competition
models exempted by federal standards to the list of red-tagged vehicle
models authorized for restricted use in California. CARB concluded that
``the provisions for allowing noncompliant vehicle certifications and
their accompanying usage restrictions provide a level of protection in
California that remains, at the minimum, no worse than afforded under
federal provisions as demonstrated by the established correlation
between equally configured federally exempted vehicles and California
noncompliant vehicles.'' \38\
---------------------------------------------------------------------------
\38\ Id. at 4-5.
---------------------------------------------------------------------------
We received no contrary evidence or arguments to refute
California's original or supplemental protectiveness determinations. In
light of CARB's detailed analysis and reasoned conclusions, and the
lack of any evidence to the contrary, we cannot find that California's
protectiveness determination regarding the red tag program is arbitrary
or capricious.
Second, the Section 209(e)(2)(ii) inquiry into whether California
needs such standards to meet compelling and extraordinary conditions in
the state is restricted to a consideration of whether California needs
its own emission standards program to meet compelling and extraordinary
conditions, not whether any particular standards are necessary to meet
such conditions.\39\ In resolving to amend its OHRV regulations with
the red tag program, California reaffirmed its longstanding
determination that its emission standards program is necessary to meet
the state's compelling and extraordinary conditions.\40\ We received no
contrary evidence or comments challenging California's determination
that its emission standards program is necessary to meet these
conditions. Therefore, there is no evidence that the state's emissions
standards program is not still necessary to address the ``compelling
and extraordinary conditions'' underlying the state's air pollution
problems.
---------------------------------------------------------------------------
\39\ See California State Motor Vehicle Pollution Control
Standards; Notice of Decision Granting a Waiver of Clean Air Act
Preemption for California's 2009 and Subsequent Model Year
Greenhouse Gas Emission Standards for New Motor Vehicles,'' 74 FR
32744 (July 8, 2009), at 32761; see also ``California State Motor
Vehicle Pollution Control Standards; Waiver of Federal Preemption
Notice of Decision,'' 49 FR 18887 (May 3, 1984), at 18889-188890.
\40\ ``State of California Air Resources Board, Resolution 98-
66,'' December 10, 1998, EPA-HQ-OAR-2012-0742-0007.
---------------------------------------------------------------------------
Third and finally, we evaluate the red tag program for consistency
with section 209 of the Act, which, as discussed above, requires
evaluation of consistency with sections 209(a),
[[Page 6589]]
209(e)(1), and 209(b)(1)(C). First, to be consistent with section
209(a), the amendments must not apply to new motor vehicles or motor
vehicle engines. The Act defines ``motor vehicle'' as ``any self-
propelled vehicle designed for transporting persons or property on a
street or highway.'' \41\ As already determined in EPA's authorization
of the original OHRV regulations, OHRVs and OHRV engines (as defined by
California) are not motor vehicles or motor vehicle engines.\42\ The
definition of OHRV has not changed since that time. While OHRVs are not
explicitly defined in California's regulations, the OHRV engines
subject to California's OHRV regulations and the red tag amendments at
issue here are defined as engines ``[. . .] designed for powering off-
road recreational vehicles . . .'' \43\ They are not designed for on-
highway use and we received no evidence that any OHRVs or OHRV engines
are designed as motor vehicles or motor vehicle engines. We therefore
find that the vehicles and engines subject to the red tag program are
not motor vehicles and that the regulations therefore are consistent
with section 209(a) of the Act. Second, to be consistent with section
209(e)(1) of the Act, the regulations must not attempt to regulate
those vehicles and engines explicitly preempted from state regulation
by section 209(e)(1), including farm and construction equipment and
engines, vehicles and engines below 175 horsepower, and new locomotives
or locomotive engines. None of the vehicles or engines covered by
California's OHRV regulations fall in these categories and we received
no evidence to the contrary. We therefore find the red tag amendments
are consistent with section 209(e)(1). Third and finally, to be
consistent with section 209(b)(1)(c), there must be adequate lead time
to permit technological development for compliance with the amendment,
and the state test procedures must not be made inconsistent with
federal test procedures. In this case, there is no evidence that the
red tag program would require any technological development, or that it
would affect the consistency of federal and state test procedures. We
therefore find no evidence that the standards and accompanying
enforcement procedures of the red tag program and the removal of the
competition exemption are inconsistent with section 209 of the Act.
---------------------------------------------------------------------------
\41\ CAA section 216(2), 42 U.S.C. Sec. 7550(a).
\42\ See Decision Document supporting 61 FR 69093, December 31,
1996, Docket A-95-17, at 30.
\43\ 13 CA ADC Sec. 2411(a)(13).
---------------------------------------------------------------------------
After a review of the information submitted by CARB, and the record
for this authorization request, EPA finds that no basis exists to
demonstrate that authorization for California's amendments establishing
the red tag program and removing the competition exemption from its
OHRV regulations should be denied based on any of the statutory
criteria of section 209(e)(2)(A). For this reason, EPA finds that an
authorization for such amendments should be granted.
2. Addition of ATVs Over 600 lbs
California requested a full authorization for the addition of
vehicles over 600 lbs to the existing class of ATVs covered by the OHRV
regulations. California asserted that while most ATVs fall under the
600 lb mark, a small number of vehicles used for work applications are
greater than 600 lb and do not warrant separate treatment under an
additional regulatory scheme.\44\ CARB further clarified that ATVs used
in farm or construction applications are not to be included in the
definition, as they are permanently preempted by section 209(e)(1) of
the CAA and its implementing regulations.
---------------------------------------------------------------------------
\44\ 2000 Request, supra note 2, at 5.
---------------------------------------------------------------------------
As noted above, when CARB requested authorization in 2000 for the
1999 amendment expanding the ATV category to include vehicles over 600
lb, no comparable federal standards existed against which to assess the
protectiveness of the California regulations. However, California's
request must be judged in light of the current comparable federal
regulations. Emissions from ATVs are federally regulated in 40 CFR Part
1051 as part of the nonroad emission standards program.\45\ There are
no weight limits on the class of ATVs regulated under Part 1051. The
federal standards in 40 CFR 1051.107 therefore apply to the expanded
class of vehicles described in California's revised definition of ATVs
and are the ``comparable standards'' against which California's request
for authorization for its expanded class of vehicles should be judged.
---------------------------------------------------------------------------
\45\ 40 CFR 1051.1(a)(3)
---------------------------------------------------------------------------
First, regarding the protectiveness of California's regulation of
ATVs greater than 600 lbs, when CARB submitted its petition for
authorization of additional amendments in 2004, it re-evaluated its
OHRV standards (including the standards applicable to vehicles greater
than 600 lb) in light of the newly promulgated federal Part 1051
standards. Citing EPA's own analysis of the comparative emission
standards for ATVs detailed in the preamble to the 2002 federal
rulemaking, CARB found that the California and federal standards were
roughly equivalent with the main difference being the federal inclusion
of the competition exemption versus California's red tag program.\46\
Taken as a whole, CARB concluded that California's program for ATVs,
including those over 600 lb, remained at least as protective as the
federal program. We received no comments or evidence contradicting this
determination, and therefore we cannot find that California's
protectiveness determination is arbitrary or capricious.
---------------------------------------------------------------------------
\46\ 2004 Request, supra note 2, at 3.
---------------------------------------------------------------------------
Second, and as noted above with regard to the red tag amendments
that CARB adopted concurrently, California maintained that its mobile
source pollution program is still necessary to meet compelling and
extraordinary conditions in the state. We received no contrary evidence
or comments challenging this assertion. We therefore find that there is
no evidence that the state's emission standards program is not still
necessary to address the ``compelling and extraordinary conditions''
underlying the state's air pollution problems.
Third and finally, the removal of the 600 lb weight limit must be
found consistent with section 209 of the Act if it: (1) Does not
regulate new motor vehicles or motor vehicle engines per section 209(a)
or any of the vehicles or engines specified in section 209(e)(1), (2)
is not technologically infeasible for manufacturers to meet the
standards within the lead time provided, or (3) does not establish test
procedures inconsistent with federal test procedures for the same
vehicle class, per section 209(b)(1)(C). First, ATVs are defined as
being designed for off-highway use,\47\ so the regulation does not seek
to regulate ``motor vehicles'' and is consistent with section 209(a).
Second, ATVs are not among the classes of vehicles permanently
preempted by federal regulations and so this amendment is consistent
with section 209(e)(1). Third and finally, there is no evidence of
inadequate lead time to permit technological development for compliance
with the amendment, nor are the CARB test procedures regarding ATVs
made inconsistent with federal test procedures by this amendment. We
therefore find no evidence that the amendment is inconsistent with
section 209 of the Act.
---------------------------------------------------------------------------
\47\ 13 CA ADC Sec. 2411(a)(1).
---------------------------------------------------------------------------
[[Page 6590]]
Having met the three criteria for full authorization, the amendment
to add vehicles over 600 lb gross weight to California's OHRV emission
standards must be authorized.
B. California's 2003 Amendment
The sole 2003 amendment presented for authorization is a change in
the effective date of the riding season use restrictions for red-tagged
vehicles from 1999 (the date of the original amendments) to 2003.
California requested that EPA evaluate this amendment as within the
scope of the earlier authorization.
Following the passage of the 1999 amendments, California's
Department of Motor Vehicles (DMV) and Department of Parks and
Recreation (DPR) were unable to properly enforce the new regulations as
written, due to a lack of institutional resources and problems with
DMV's registration system. This resulted in inconsistencies in the
labeling and certification of some OHRVs. For example, some non-
emissions-compliant OHRVs, which should have been red-tagged, were
registered with green tags, and some emissions-compliant OHRVs, which
should have been green-tagged, were registered with red stickers.\48\
As of 2003, however, the implementing agencies, DMV and DPR, committed
to automate the OHRV registration system and enforce the riding season
limitations. The amendment to change the riding season use restrictions
to apply only to 2003 MY and later vehicles was intended to ``simply
reflect the delay in riding season enforcement that occurred in the
field by the land management agencies.'' \49\
---------------------------------------------------------------------------
\48\ ``State of California Air Resources Board, Initial
Statement of Reasons,'' June 6, 2003, EPA-HQ-OAR-2012-0742-0010, at
4.
\49\ Id.
---------------------------------------------------------------------------
California asserted that the amendment met all three within-the-
scope criteria, i.e. that it: (1) Does not undermine the original
protectiveness determination underlying California's OHRV regulations,
(2) does not affect the consistency of the OHRV regulations with
section 202(a), and (3) does not raise any new issues affecting the
prior authorization.\50\ We received no adverse comments or evidence
suggesting a within-the-scope analysis is inappropriate, or that the
2003 amendment fails to meet any of the three criteria for within-the-
scope confirmation.
---------------------------------------------------------------------------
\50\ 2004 Request, supra note 2, at 2.
---------------------------------------------------------------------------
First, California asserted that the amendment to the effective
start date of the red tag program clearly did not undermine the
original protectiveness determination underlying California's OHRV
regulations because it does not change any of the substantive criteria
or parameters of that program, but rather is an administrative date
change. Furthermore, at the time the request was made (2004), the
federal standards were not yet effective until MY 2006, so California's
program remained without a federal parallel even during the period
between the intended start date and the amended start date.\51\ We
therefore cannot find that the delay in the effective date of the red
tag program undermines the protectiveness determination made with
regard to the original red tag program.
---------------------------------------------------------------------------
\51\ Id.
---------------------------------------------------------------------------
Second, this amendment did not attempt to regulate new motor
vehicles or motor vehicle engines and so is consistent with section
209(a). It likewise did not attempt to regulate any of the permanently
preempted engines or vehicles, and so is consistent with section
209(e)(1). Finally, it did not cause any technological feasibility
issues for manufacturers or cause inconsistency between state and
federal test procedures, per section 209(b)(1)(C). The difficulties in
implementing the red tag program as written in 1999 were not due to
technological difficulties for manufacturers but rather to the state's
administrative difficulties. There were therefore no lead-time or
technological problems created by the delayed start date amendment. In
fact, to the extent that there were problems at all relevant to the red
tag program, these were administrative problems that were relieved by
the delayed start date. The delayed start date had no bearing on the
consistency between the California and federal certification
requirements. We therefore find no evidence that the delayed start date
amendment is inconsistent with section 209 of the Act.
Third, California stated that the delayed start date raised no new
issues, and we have received no evidence to the contrary. The change in
date was a purely ministerial change, especially considering that at
the time the amendment was promulgated, the comparable federal
standards had not yet come into effect. We therefore do not find any
new issues raised by the delayed start date amendment.
Having received no contrary evidence or comments regarding this
amendment, we find that California has met the three criteria for a
within-the-scope authorization approval. Therefore, the amendment
delaying the start date for California's red tag program must be
confirmed as within the scope of the previous authorization of
California's OHRV regulations.
C. California's 2006 Amendments
1. Evaporative Emission Standards
In 2006, California added evaporative emission standards for 2008
and later model year OHRVs to align with federal evaporative emission
standards that also began with the 2008 model year, and in 2010
requested a full authorization for the inclusion of these standards.
The California standards (1.5 g/m\2\/day for fuel tank permeation and
15.0 g/m\2\/day for fuel hose permeation) were exactly the same as the
federal standards,\52\ with identical test procedures. Both the
California and federal standards remain the same as of this date. We
received no evidence or comments contradicting or challenging
authorization of this amendment.
---------------------------------------------------------------------------
\52\ 40 CFR 1051.110.
---------------------------------------------------------------------------
First, CARB stated that these standards are at least as protective
of public health and welfare, in the aggregate, as the federal
standards, because they are identical with the federal standards.\53\
Considering the equivalence of the federal and California evaporative
emission standards and having received no evidence to the contrary, we
cannot find that California's protectiveness determination regarding
the OHRV evaporative emission standards is arbitrary or capricious.
---------------------------------------------------------------------------
\53\ 2010 Request, supra note 2, at 7.
---------------------------------------------------------------------------
Second, California reiterated its longstanding position that
compelling and extraordinary conditions in the state still need to be
addressed through separate California nonroad engine and vehicle
regulations.\54\ We find no evidence to contradict California's
determination that the new evaporative standards are part of an overall
approach to reducing the state's air pollution problems, and that the
state still needs its own program to address the ``compelling and
extraordinary conditions'' that continue to exist in California.
---------------------------------------------------------------------------
\54\ Id. at 8.
---------------------------------------------------------------------------
Third, California stated that the evaporative emission standards
are consistent with CAA section 209 because they apply to classes of
vehicles that EPA already evaluated and found to be consistent in
previous authorizations.\55\ In those decisions, EPA found that these
vehicle categories are not ``new motor vehicles'' preempted under CAA
section 209(a)
[[Page 6591]]
nor are they engines specifically preempted by CAA section 209(e)(1).
California stated that the amendment is consistent with section
209(b)(1)(C) because the evaporative standards are identical to the
federal standards that EPA already found to provide adequate lead time
for technological development, and because manufacturers could use the
same test vehicle to demonstrate emissions compliance with both the
federal and California standards. Having received no evidence to
contradict these statements, we do not find that the evaporative
emissions standards are inconsistent with section 209 of the Act.
---------------------------------------------------------------------------
\55\ For references to EPA authorizations of these standards
under Large Spark Ignition (LSI) and Small Off-Road Engines (SORE)
regulations, see 2010 Request, supra note 2, at fn 9, fn 10.
---------------------------------------------------------------------------
Having found the request meets the three criteria for a full
authorization, EPA must authorize the amendment of California's
evaporative emissions standard.
2. Reclassification of Sand Cars, Off-Road Utility Vehicles and Off-
Road Sport Vehicles as OHRVs
The 2006 amendments reclassified sand cars, off-road utility
vehicles and off-road sport vehicles (also known as ``Class II and
Class III'' ATV-like vehicles) as OHRVs. The reclassification aligned
California's regulations with the federal classification of these
vehicle categories.\56\ Each of these vehicle categories had previously
been regulated under other federally-authorized California regulations
as small off-road or large off-road spark-ignition engines.\57\ The
amendments also harmonized the carbon monoxide (CO) emission standard
with the federal CO ATV emission standard (400 g/kW-hr) and maintained
the existing CO + nitrogen oxides (NOX) emission standard
(12 g/kW-hr), which is more strict than the parallel federal standard
(13.4 g/kW).\58\ California requested a within-the-scope determination
for these amendments. EPA received no adverse comments or evidence
contradicting California's request to consider these amendments as
within the scope of the previous authorization.
---------------------------------------------------------------------------
\56\ See 40 CFR 1051.1(a)(4).
\57\ See supra note 55.
\58\ See 40 CFR 1051.107(a)(1).
---------------------------------------------------------------------------
First, California found that the reclassification amendment does
not undermine the original protectiveness determination regarding its
OHRV regulations because it further aligns them with the federal
classification system for OHRVs. California asserted that the amended
regulation therefore remains at least as protective as the federal
standards.\59\ Also, as noted above, the emission standards for ATVs in
California are clearly at least as protective as the federal standards,
mirroring the federal CO standard and exceeding the stringency of the
federal CO + NOX standard. Based on the record before us and
in the absence of any evidence to the contrary, we cannot find that
California's protectiveness determination regarding the
reclassification of these vehicles as OHRVs is arbitrary or capricious.
---------------------------------------------------------------------------
\59\ 2010 Request, supra note 2, at 8.
---------------------------------------------------------------------------
Second, California found that the amendment does not affect
consistency with section 209 of the Act. The vehicle categories to
which this amendment applies have already been deemed consistent with
sections 209(a) and 209(e)(1) by EPA when they were considered as part
of the large spark ignition and small off-road engine regulation
authorizations.\60\ Further, California found that application of the
OHRV standards to the new vehicle classes is consistent with section
209(b)(1)(C) because manufacturers had already been complying with the
standards for more than two years at the time of California's request.
The exhaust standards were phased in by model year 2007 and evaporative
standards were phased in by model year 2008. Also, the test procedures
authorized by California are identical to those adopted federally, so a
single test vehicle could be used for both state and federal
testing.\61\ We conclude that the amendment has no bearing on the
consistency between the California and federal certification
requirements, and no evidence contradicting California's determination
that the amendment is consistent with section 209(b)(1)(C). We
therefore do not find the amendment is inconsistent with section 209 of
the Act.
---------------------------------------------------------------------------
\60\ See supra note 55.
\61\ 2010 Request, supra note 2, at 9.
---------------------------------------------------------------------------
Third, California was unaware of any new issues that would arise
from the inclusion of these three new classes of vehicles under their
OHRV regulations and standards.\62\ EPA similarly finds no new issues
arising from the amendment.
---------------------------------------------------------------------------
\62\ Id.
---------------------------------------------------------------------------
Having received no evidence or comments to the contrary, we find
that California's 2006 amendment to reclassify off-road sport vehicles,
off-road utility vehicles, and sand cars as OHRVs meets the three
criteria for a within-the-scope determination. We therefore find that
this amendment is within the scope of the previous authorization of the
OHRV program.
3. Amendment of Riding Seasons and Areas List
Third, the list of riding areas and riding seasons was amended.
California asserted that this amendment does not require EPA
authorization because it pertains to an operational control that cannot
be federally preempted, pursuant to section 209(d) of the Act.\63\
Under section 209(d), nothing in Subchapter II, Part A of the Act
restricts states' ability to ``control, regulate, or restrict the use,
operation or movement of registered or licensed motor vehicles.''
California therefore requested that EPA confirm that the riding season
restriction amendment was and is enforceable without further action by
the EPA Administrator. Amendments to the times and places where certain
vehicles are allowed to operate is the very essence of an ``operational
control.'' EPA received no comments challenging or denying California's
proposed treatment. Therefore, EPA confirms that the amended list of
riding seasons and areas does not require authorization by the
Administrator be