California State Nonroad Engine Pollution Control Standards; Off-Highway Recreational Vehicles and Engines; Request for Authorization; Opportunity for Public Hearing and Comment

Christopher Grundler
Environmental Protection Agency
January 4, 2013

[Federal Register Volume 78, Number 3 (Friday, January 4, 2013)]
[Notices]
[Pages 724-727]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31719]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9766-2]


California State Nonroad Engine Pollution Control Standards; Off-
Highway Recreational Vehicles and Engines; Request for Authorization; 
Opportunity for Public Hearing and Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The California Air Resources Board (CARB) has notified EPA 
that it has adopted regulations to amend its Off-Highway Recreational 
Vehicle and Engines (``OHRV'') Regulations. By letter dated March 24, 
2010, CARB submitted a request that EPA authorize these regulations 
under section 209(e) of the Clean Air Act (CAA), 42 U.S.C. 7543(b). 
CARB seeks confirmation that certain of the amendments are within the 
scope of a prior authorization issued by EPA, and that certain of the 
amendments require and merit a new authorization. This notice announces 
that EPA has tentatively scheduled a public hearing to consider 
California's request, and that EPA is now accepting written comment on 
the request.

DATES: EPA has tentatively scheduled a public hearing concerning CARB's 
request on January 30, 2013, at 10:00 a.m. at EPA's offices at 1310 L 
Street NW., Washington, DC 20005. EPA will hold a hearing only if 
anyone notifies EPA that it will present oral testimony at the hearing. 
Parties wishing to present oral testimony at the public hearing must 
provide written notice by January 17, 2013 to Suzanne Bessette at the 
email address noted below. If EPA does not receive a request for a 
public hearing, it will not hold a hearing and instead will consider 
CARB's request based on written submissions to the docket. Any party 
may submit written comments by March 1, 2013.
    By January 25, 2013, any person who plans to attend the hearing may 
check the following Web page for an update, http://www.epa.gov/otaq/cafr.htm, or may call Suzanne Bessette at (734) 214-4703 to learn if a 
hearing will be held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2012-0742, by one of the following methods:
     On-Line at http://www.regulations.gov: Follow the On-Line 
Instructions for Submitting Comments.
     Email: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2012-0742, U.S. Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    On-Line Instructions for Submitting Comments: Direct your comments 
to Docket ID No. EPA-HQ-OAR-2012-0742. EPA's policy is that all 
comments received will be included in the public docket without change 
and may be made available online at http://www.regulations.gov, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Do not submit information that you consider to be CBI or otherwise 
protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through http://www.regulations.gov, your 
email address will automatically be captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    EPA will make available for public inspection materials submitted 
by CARB, written comments received from any interested parties, and any 
testimony given at the public hearing. Materials relevant to this 
proceeding are contained in the Air and Radiation Docket and 
Information Center, maintained in Docket ID No. EPA-HQ-OAR-2012-0742. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Air and 
Radiation Docket in the EPA Headquarters Library, EPA West Building, 
Room 3334, located at 1301 Constitution Avenue NW., Washington, DC. The 
Public Reading Room is open to the public on all federal government 
work days from 8:30 a.m. to 4:30 p.m.; generally, it is open Monday 
through Friday, excluding holidays. The telephone number for the 
Reading Room is (202) 566-1744. The Air and Radiation Docket and 
Information Center's Web site is http://www.epa.gov/oar/docket.html. 
The electronic mail (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 http://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 also maintains a Web 
page that contains general information on its review of California 
waiver and authorization requests. Included on that page are links to 
several of the prior Federal Register notices which are cited

[[Page 725]]

throughout today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Suzanne Bessette, Attorney-Advisor, 
Office of Transportation and Air Quality, Compliance Division, U.S. 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105. Telephone: (734) 214-4703. Fax: (734) 214-4053. Email address: 
Bessette.Suzanne@epa.gov. mailto:Dickinson.David@EPA.GOV.

SUPPLEMENTARY INFORMATION: 

I. CARB's Prior OHRV Authorization, Within-the-Scope Requests, and New 
Requests

    In 1995, the California Air Resources Board (``CARB'') requested 
that EPA authorize California's exhaust emission standards and test 
procedures for nonroad recreational vehicles and engines (``OHRVs''). 
EPA authorized these regulations in 1996.\1\ CARB's March 24, 2010, 
letter to the Administrator notified EPA that CARB has adopted a number 
of amendments to its 1995 OHRV regulations. CARB adopted the first 
amendments in 1999, a second set of amendments in 2003, and the latest 
amendments 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. The March 24, 2010 request 
explicitly incorporates the previous two requests, and EPA intends to 
consider all three requests concurrently.
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    \1\ California State Nonroad Engine and Vehicle Pollution 
Control Standards; Authorization of State Standards; Notice of 
Decision, 61 FR 69093 (December 31, 1996).
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    The 1999 OHRV amendments did not change the numerical exhaust 
emission standards, but added a new compliance category so that 
vehicles not meeting the OHRV emissions standards could be certified 
subject to use restrictions (i.e., use in specified areas during 
specified times of the year). Non-emissions-compliant OHRVs would be 
identified with a red sticker or ``tag,'' and emissions-compliant OHRVs 
would be identified with a green sticker. The amendments also added 
ATVs over 600 lbs to the existing definition of ATV and removed the 
competition vehicle exclusion provision. CARB requested a within-the-
scope determination for the red-tag program and for the removal of the 
competition exclusion, and a new 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 met the emission standards 
established in 1994.\2\ Prior to the 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 vehicles would be ``red-tagged'' and allowed to operate during 
certain times in certain areas. The amendments provided for 
noncompliant, i.e., red-tagged, vehicles to be certified and sold in 
California and to be operated in two situations. First, in ``unlimited 
use areas,'' which are located in regions classified as in attainment 
for the State's one-hour ozone air quality standard, non-emission-
compliant OHRVs could be used year-round. Second, in ``limited use 
areas,'' which are located in regions classified as nonattainment for 
the one-hour ozone air quality standard, non-emission-compliant OHRVs 
could be used only during ``riding seasons'' specified for each area. 
The riding seasons in limited use areas were intended to restrict non-
emission-compliant vehicles from operating during peak ozone periods. 
Out of more than 100 designated riding areas, approximately one-third 
were unlimited use areas.\3\ The vast majority of the riding areas are 
on public lands managed by the California Department of Parks and 
Recreation, the United States Forest Service, and the United States 
Bureau of Land Management. CARB predicted that the red tag program 
would cause 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; and predicted lower emissions in 
limited use areas during peak seasons.\4\
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    \2\ California Air Resources Board (``CARB''), Request for 
Authorization, March 24, 2000, at 2.
    \3\ CARB, 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, 
1998, at 6.
    \4\ Id. at 8.
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    The 2003 amendment modified the OHRV regulations to indicate that 
riding season use restrictions would begin with the 2003 model year. 
The request letter regarding this amendment stated that the amendment 
was needed to correct the ``practical delay'' in enforcement of the 
1999 red-tag amendment.\5\ CARB sought a within-the-scope finding for 
this amendment.\6\ CARB also reaffirmed its approval of its 1999 
amendments, analyzing them in comparison to the later federal OHRV 
regulations promulgated in 2002.\7\
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    \5\ CARB, Request for Authorization, November 19, 2004, at 1.
    \6\ 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.
    \7\ Prior to 2002, there were no federal emissions standards for 
OHRVs. The federal regulations promulgated in 2002 were codified at 
40 CFR part 1051, see 67 FR 68242 (November 8, 2002), and later 
amended in 2008, see 73 FR 59034 (October 8, 2008).
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    The 2006 amendments made three further changes to California's OHRV 
regulations. First, they added evaporative emissions standards for 
OHRVs 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, which is aligned 
with the federal classification of these vehicles. Each of these 
vehicles had previously been regulated under other federally-approved 
California regulations as small off-road or large off-road spark-
ignition engines. The amendment set emissions standards for these three 
additional classes of vehicles. Third, the list of riding areas and 
riding seasons was amended.
    CARB's 2010 request regarding the 2006 amendments sought (1) A new 
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 list is an ``operational control'' that 
cannot be federally preempted, pursuant to Clean Air Act section 
209(d). California also requested that in the alternative, the riding 
season amendments be considered within the scope of the 1996 
authorization. Finally, the 2010 letter requested that EPA concurrently 
consider and render a decision on the pending 1999 and 2003 amendments 
authorization requests.

II. Clean Air Act Nonroad Engine and Vehicle Authorizations

    Section 209(e)(1) of the Clean Air Act prohibits States and local 
governments from adopting or attempting to enforce any standard or 
requirement relating to the control of emissions from new nonroad 
vehicles or engines. The Administrator must authorize California to 
enforce its own standards upon making specific findings, detailed 
below. Section 209(d) precludes federal preemption of state standards 
that ``control, regulate, or restrict the use,

[[Page 726]]

operation, or movement of registered or licensed motor vehicles.'' 
State laws governing use, operation, or movement of motor vehicles do 
not, therefore, require federal authorization.

A. Criteria for New Authorization Determinations

    Section 209(e)(1) of the Clean Air Act preempts states from 
regulating (subparagraph A) new engines smaller than 175 horsepower 
that are used in construction equipment or vehicles or farm equipment 
or vehicles and (subparagraph B) new locomotives or engines used in 
locomotives. Section 209(e)(2)(A) requires the Administrator to grant 
California authorization to adopt and enforce its own standards for new 
nonroad engines not included in subparagraphs (A) and (B) of paragraph 
(1), under certain circumstances:

    [* * *] the Administrator shall, after notice and opportunity 
for public hearing, authorize California to adopt and enforce 
standards and other requirements relating to the control of 
emissions from such vehicles or engines if California determines 
that California standards will be, in the aggregate, at least as 
protective of public health and welfare as applicable Federal 
standards.
Authorization shall not be granted, however, if the Administrator finds 
that (i) The determination of the state is arbitrary and capricious, 
(ii) the state does not need the state standards to meet compelling and 
extraordinary conditions, or (iii) the state standards and accompanying 
enforcement procedures are not consistent with this section.\8\
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    \8\ 40 CFR 1074.105.
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    EPA has historically interpreted the section 209(e)(2)(iii) 
``consistency'' inquiry to require, at minimum, that California 
standards and enforcement procedures be consistent with section 209(a), 
section 209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted 
that subsection in the context of section 209(b) motor vehicle 
waivers).\9\ In order to be consistent with section 209(a), 
California's nonroad standards and enforcement procedures must not 
apply to new motor vehicles or new motor vehicle engines. To be 
consistent with section 209(e)(1), California's nonroad standards and 
enforcement procedures must not attempt to regulate engine categories 
that are permanently preempted from state regulation. To determine 
consistency with section 209(b)(1)(C), EPA typically reviews nonroad 
authorization requests under the same ``consistency'' criteria that are 
applied to motor vehicle waiver requests. Pursuant to section 
209(b)(1)(C), the Administrator shall not grant California a motor 
vehicle waiver if she finds that California ``standards and 
accompanying enforcement procedures are not consistent with section 
202(a)'' of the Act. Previous decisions granting waivers and 
authorizations have noted that state standards and enforcement 
procedures are inconsistent with section 202(a) if: (1) there is 
inadequate lead time to permit the development of the necessary 
technology giving appropriate consideration to the cost of compliance 
within that time, or (2) the federal and state testing procedures 
impose inconsistent certification requirements.\10\
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    \9\ 59 FR 36969 (July 20, 1994).
    \10\ To be consistent, the California certification procedures 
need not be identical to the Federal certification procedures. 
California procedures would be inconsistent, however, if 
manufacturers would be unable to meet the state and the Federal 
requirements with the same test vehicle in the course of the same 
test. 43 FR 32182 (July 25, 1978).
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B. Criteria for Within-the-Scope Determinations

    When California makes a minor amendment to regulations that EPA has 
previously authorized, EPA can confirm that the amendment is within the 
scope of the previously granted authorization. In this situation, EPA 
does not typically go through the full analysis for a new request, but 
instead grants authorization by reference to the analysis and approval 
of the original authorization. A within-the-scope amendment is 
permissible if three conditions are met. First, the amended regulations 
must not undermine California's determination that its standards, in 
the aggregate, are as protective of public health and welfare as 
applicable federal standards. Second, the amended regulations must not 
affect consistency with section 202(a) of the Act. Third, the amended 
regulations must not raise any ``new issues'' affecting EPA's prior 
authorizations.

III. Request for Comment

    EPA invites public comment on CARB's entire request, including but 
not limited to the following issues.

A. 1999 Amendments

    First, 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 ``new'' authorization criteria? 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? 
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 does not determine they are 
within-the-scope of the previous authorization, do they meet the 
criteria for making a new authorization determination?
    Second, does the removal of the 600 lb weight limitation in the 
definition of ``ATV'' meet the criteria for making a new authorization 
determination?

B. 2003 Amendment

    Should the amendment limiting the red tag program to model years 
2003 and later be under the within-the-scope criteria, and if so, does 
it meet the within-the-scope criteria for authorization? To the extent 
that the 2003 amendment should be treated as a new authorization 
request, does it meet the criteria for a new authorization?

C. 2006 Amendments

    First, does the amendment setting evaporative emissions standards 
for OHRVs meet the criteria for new authorizations? Second, 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? Third, 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 Sec.  209(d)? If it is 
preempted and therefore requires federal approval, does the amended 
list of riding areas and seasons fall within-the-scope of the original 
(1996) authorization?

IV. Procedures for Public Participation

    If a hearing is held, the Agency will make a verbatim record of the 
proceedings. Interested parties may arrange with the reporter at the 
hearing to obtain a copy of the transcript at their own expense. 
Regardless of whether a public hearing is held, EPA will keep the 
record open until March 1, 2013. Upon expiration of the comment period, 
the Administrator will render a decision on CARB's request based on the 
record from the public hearing, if any, all relevant written 
submissions, and other information that she deems pertinent. All 
information will be available for inspection at the EPA Air Docket No. 
EPA-HQ-OAR-2012-0742.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
possible and label it as ``Confidential Business Information'' 
(``CBI''). If a person

[[Page 727]]

making comments wants EPA to base its decision on a submission labeled 
as CBI, then a non-confidential version of the document that summarizes 
the key data or information should be submitted to the public docket. 
To ensure that proprietary information is not inadvertently placed in 
the public docket, submissions containing such information should be 
sent directly to the contact person listed above and not to the public 
docket. Information covered by a claim of confidentiality will be 
disclosed by EPA only to the extent allowed, and according to the 
procedures set forth in 40 CFR part 2. If no claim of confidentiality 
accompanies the submission when EPA receives it, EPA will make it 
available to the public without further notice to the person making 
comments.

    Dated: December 26, 2012.
Christopher Grundler,
Director, Office of Transportation and Air Quality, Office of Air and 
Radiation.
[FR Doc. 2012-31719 Filed 1-3-13; 8:45 am]
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