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California State Nonroad Engine Pollution Control Standards; Off-Highway Recreational Vehicles and Engines; Notice of Decision

American Government Special Collections Reference Desk

American Government

California State Nonroad Engine Pollution Control Standards; Off-Highway Recreational Vehicles and Engines; Notice of Decision

Janet G. McCabe
Environmental Protection Agency
February 4, 2014


[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]


=======================================================================
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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.

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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 http://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 http://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 http://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.
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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.
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    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\
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    \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\
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    \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\
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    \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\
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    \27\ See, e.g., ``California State Motor Vehicle Pollution 
Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 
28, 1975), at 23103.
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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.
---------------------------------------------------------------------------

    \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.

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[[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 because it is not federally preempted by the Act.
---------------------------------------------------------------------------

    \63\ See Id. California also requested that in the alternative, 
the riding areas/seasons amendment be considered within the scope of 
the 1996 authorization.
---------------------------------------------------------------------------

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.

[[Page 6592]]

    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.
[FR Doc. 2014-02297 Filed 2-3-14; 8:45 am]
BILLING CODE 6560-50-P

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