California State Nonroad Engine Pollution Control Standards; Evaporative Emission Standards and Test Procedures for Off-Highway Recreational Vehicles (OHRVs); Notice of Decision |
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Gina McCarthy
Environmental Protection Agency
19 January 2017
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6540-6544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01259]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2016-0181; FRL-9958-63-OAR]
California State Nonroad Engine Pollution Control Standards;
Evaporative Emission Standards and Test Procedures for Off-Highway
Recreational Vehicles (OHRVs); Notice of Decision
AGENCY: Environmental Protection Agency.
ACTION: Notice of decision.
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SUMMARY: The Environmental Protection Agency (``EPA'') is granting the
California Air Resources Board (``CARB'') its request for an
authorization of its amendments to its Off-Highway Recreational Vehicle
regulation (``OHRV Amendments''). The OHRV Amendments establish new
evaporative emission standards and test procedures for 2018 and
subsequent model year OHRVs. The California OHRV category encompasses a
wide variety of vehicles, including off-road motorcycles, all-terrain
vehicles (``ATVs''), off-road sport and utility vehicles, sand cars,
and golf carts. This decision is issued under the authority of the
Clean Air Act (``CAA'' or ``Act'').
DATES: Petitions for review must be filed by March 20, 2017.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2016-0181. 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-2016-0181 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: David Dickinson, Attorney-Advisor,
Transportation Climate Division, Office of Transportation and Air
Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania
Avenue, (6405J), NW., Washington, DC 20460. Telephone: (202) 343-9256.
Fax: (202) 343-2800. Email: Dickinson.David@epa.gov.
I. Background
CARB first adopted exhaust emission standards and test procedures
applicable to OHRVs and the engines used in OHRVs in 1994, and EPA
authorized California to enforce such standards and test procedures in
1996.\1\ CARB subsequently adopted amendments to the OHRV regulation in
1996, 1999, 2003, and 2007, and EPA determined those amendments either
fell within the scope of previously granted authorizations or met the
criteria for a new authorization.\2\
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\1\ 61 FR 69093 (December 3, 1996).
\2\ 65 FR 69673 (November 20, 2000) [1996 amendments]; 79 FR
6584 (February 14, 2014) [1999, 2003, and 2007 amendments].
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In 2002, EPA adopted regulations that established both exhaust and
evaporative emission standards for nonroad recreational vehicles and
engines, including off-road motorcycles and ATVs.\3\ EPA's evaporative
emission standards applied to 2008 and subsequent model year nonroad
recreational vehicles, and established a fuel tank permeation limit of
1.5 grams per square meter per day (g/m2/day) and a fuel hose
permeation limit of 15 g/m2/day. Correspondingly, CARB's 2007
amendments to their OHRV regulation set forth, among other provisions,
evaporative emission standards for new 2008 and subsequent model year
OHRVs that are identical to the federal evaporative emission standards
for 2008 and subsequent model year nonroad vehicles. In 2014, CARB
adopted the OHRV Amendments that establish a new test procedure and
evaporative emission standard of 1.0 gram per day (g/day) of total
organic gas (TOG) for a 3-day diurnal period.\4\
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\3\ 67 FR 68242 (November 8, 2002). The terms ``off-road'' and
``nonroad'' are used interchangeably, generally CARB uses the term
off-road and EPA uses the term nonroad.
\4\ CARB's regulatory text enacted by the OHRV Amendments (which
EPA is authorizing by this action), is set forth in California Code
of Regulations, Title 13, sections 2416, 2417, 2418, 2419, 2419.1,
2419.2, 3419.3, and 2419.4. A full description of the OHVR
Amendments is found in CARB's Authorization Request Support
Document, 2014 Amendments to Evaporative Emissions Control
Requirements for Off Highway Recreational Vehicles, dated February
26, 2016 (``Authorization Request Support Document'') at EPA-HQ-OAR-
2016-0181-0002.
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A. CARB's Authorization Request
In a letter dated February 26, 2016, CARB submitted to EPA its
request pursuant to section 209(e) of the CAA, regarding authorization
of its OHRV Amendments.\5\ The CARB Board approved the OHRV Amendments
on July 25, 2013 (by Resolution 13-33).\6\ The OHRV Amendments were
approved by California's Office of Administrative Law (OAL) on December
17, 2014 and became operative state law on April 1, 2015.
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\5\ Authorization Request Support Document.
\6\ CARB Resolution 13-33, July 25, 2013, EPA-HQ-OAR-2016-0181-
0006.
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The OHRV Amendments differ from preexisting OHRV requirements
because they impose a 1.0 g/day evaporative emissions standard for the
complete OHRV fuel system. Previously the OHRV regulation only required
fuel tanks and fuel hoses to meet specific permeation standards. The
OHRV Amendments comprehensively address all potential sources of
evaporative emissions, including running losses (evaporative emissions
generated during vehicle operation), hot soak (evaporative emission
generated directly after vehicle operation), and diurnal losses
(evaporative emissions generated during long term storage). The OHRV
[[Page 6541]]
Amendments establish diurnal and fuel system leakage standards and
associated test procedures for new 2018 and subsequent model year
OHRVs. In addition, the OHRV Amendments establish durability test
procedures and other test procedure provisions for preconditioning
evaporative emission control systems and components, running loss and
hot soak preconditioning tests, and test procedures for the 72-hour and
steady-state diurnal tests. Finally, the OHRV Amendments include many
of CARB's general compliance provisions, including among other
provisions: Annual certification of the evaporative emission control
systems, the applicability of the in-use recall provisions that CARB
previously adopted for OHRVs in 1994, and emissions warranty
requirements.\7\
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\7\ See Authorization Request Support Document at 8-10 for a
complete list of provisions.
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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.\8\ For all other nonroad
engines, states generally are preempted from adopting and enforcing
standards and other requirements relating to the control of emissions.
Section 209(e)(2), however, requires the Administrator, after notice
and opportunity for public hearing, to 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. However,
EPA shall not grant such authorization if it finds that (1) the
determination of California is arbitrary and capricious; (2) California
does not need such California standards to meet compelling and
extraordinary conditions; or (3) California standards and accompanying
enforcement procedures are not consistent with [CAA section 209].\9\
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\8\ 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. CAA Sec. 209(e)(1), 42 U.S.C.
7543(e)(1)(A).
\9\ EPA's review of California regulations under section 209 is
not a broad review of the reasonableness of the regulations or its
compatibility with all other laws. Sections 209(b) and 209(e) of the
Clean Air Act limit EPA's authority to deny California requests for
waivers and authorizations to the three criteria listed therein. As
a result, EPA has consistently refrained from denying California's
requests for waivers and authorizations based on any other criteria.
In instances where the U.S. Court of Appeals has reviewed EPA
decisions declining to deny waiver requests based on criteria not
found in section 209(b), the Court has upheld and agreed with EPA's
determination. See Motor and Equipment Manufacturers Ass'n v.
Nichols, 142 F.3d 449, 462-63, 466-67 (D.C. Cir.1998), Motor and
Equipment Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20
(D.C. Cir. 1979). See also 78 FR 58090, 58120 (September 20, 2013).
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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.\10\ EPA revised these regulations in
1997.\11\ 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.\12\
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\10\ See ``Air Pollution Control; Preemption of State Regulation
for Nonroad Engine and Vehicle Standards,'' 59 FR 36969 (July 20,
1994).
\11\ 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.
\12\ 59 FR 36969 (July 20, 1994). EPA has interpreted
209(b)(1)(C) in the context of section 209(b) motor vehicle waivers.
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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 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,\13\ or (2) the federal and state testing
procedures impose inconsistent certification requirements.\14\
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\13\ H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).
\14\ S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).
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In light of the similar language in 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:
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\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 EPA's Final 209(e) rulemaking at 59 FR 36969, 36983
(July 20, 1994).
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\
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\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.
[[Page 6542]]
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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).
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\18\ See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d
1095 (D.C. Cir. 1979) (``MEMA I''), Ford Motor Co. v. EPA, 606 F.2d
1293, 1300 (D.C. Cir. 1979).
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C. Deference to California
In previous waiver and authorization decisions, EPA has recognized
that the intent of Congress in creating a limited review based on the
section 209(b)(1) criteria was to ensure that the federal government
did not second-guess state policy choices. As the agency explained in
one prior waiver decision:
It is worth noting . . . I would feel constrained to approve a
California approach to the problem which I might also feel unable to
adopt at the federal level in my own capacity as a regulator. The
whole approach of the Clean Air Act is to force the development of
new types of emission control technology where that is needed by
compelling the industry to ``catch up'' to some degree with newly
promulgated standards. Such an approach . . . may be attended with
costs, in the shape of reduced product offering, or price or fuel
economy penalties, and by risks that a wider number of vehicle
classes may not be able to complete their development work in time.
Since a balancing of these risks and costs against the potential
benefits from reduced emissions is a central policy decision for any
regulatory agency under the statutory scheme outlined above, I
believe I am required to give very substantial deference to
California's judgments on this score.\19\
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\19\ 40 FR 23102, 23103-23104 (May 28, 1975).
Similarly, EPA has stated that the text, structure, and history of
the California waiver provision clearly indicate both a congressional
intent and appropriate EPA practice of leaving the decision on
``ambiguous and controversial matters of public policy'' to
California's judgment.\20\ This interpretation is supported by relevant
discussion in the House Committee Report for the 1977 amendments to the
Clean Air Act.\21\ Congress had the opportunity through the 1977
amendments to restrict the preexisting waiver provision, but elected
instead to expand California's flexibility to adopt a complete program
of motor vehicle emission controls. The report explains that the
amendment is intended to ratify and strengthen the preexisting
California waiver provision and to affirm the underlying intent of that
provision, that is, to afford California the broadest possible
discretion in selecting the best means to protect the health of its
citizens and the public welfare.\22\
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\20\ Id. at 23104; 58 FR 4166 (January 13, 1993).
\21\ MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 294, 95th
Cong., 1st Sess. 301-302 (1977)).
\22\ Id.
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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.\23\
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\23\ MEMA I, supra note 17, at 1121.
The same logic applies to authorization requests. 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.' '' \24\ Therefore, the
Administrator's burden is to act ``reasonably.'' \25\
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\24\ Id. at 1126.
\25\ Id. at 1126.
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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.\26\
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\26\ Id. at 1122.
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.\27\ The court
noted that this standard of proof also accords with the congressional
intent to provide California with the broadest possible discretion in
setting regulations it finds protective of the public health and
welfare.\28\
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\27\ Id.
\28\ Id.
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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.
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.'' \29\
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\29\ 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
Commercial Harbor Craft Regulations
Upon review of CARB's request, EPA offered an opportunity for a
public hearing, and requested written comment on issues relevant to a
section 209(e)(2)(A) authorization analysis, by publication of a
Federal Register notice on August 9, 2016.\30\ Specifically, we
requested comment on: (a) Whether CARB's determination that its
standards, in the aggregate, are at least as protective of public
health and welfare as applicable federal standards is arbitrary and
capricious, (b) whether California needs such standards to meet
compelling and extraordinary conditions, and (c) whether California's
standards and accompanying enforcement procedures are consistent with
section 209 of the Act.
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\30\ 81 FR 52684 (August 9, 2014).
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EPA did not receive a request for hearing and therefore no hearing
was held. EPA did not receive any written comments. EPA's evaluation is
based on the record, which includes CARB's authorization request and
accompanying documents.
[[Page 6543]]
II. Discussion
A. California's Protectiveness Determination
Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an
authorization if the agency finds that CARB was arbitrary and
capricious in its determination that its standards are, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards. CARB's Board made a protectiveness
determination in Resolution 13-33, declaring that ``the Amendments
approved for adoption herein will not cause California emission
standards, in the aggregate, to be less protective of public health and
welfare than applicable federal standards.'' \31\ CARB asserts that EPA
has no basis to find that the CARB Board's determination is arbitrary
or capricious.\32\ CARB notes that EPA's existing evaporative emission
standards for 2008 and subsequent model year nonroad recreational
vehicles and engines solely consist of permeation evaporative emission
standards applicable to fuel tanks and fuel hoses. Conversely, CARB
notes that the OHRV Amendments provide for more comprehensive control
of the evaporative emission system. CARB projects the OHRV Amendments
will reduce OHRV evaporative emissions by over 70 percent as compared
to current model-year vehicles, and are therefore clearly, in the
aggregate, at least as protective of the public health and welfare as
applicable federal standards.
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\31\ Authorization Request Support Document at 11.
\32\ Id. at 12.
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After evaluating the materials submitted by CARB, and since EPA has
not adopted any comparable standards or requirements for OHRVs, and
based on the lack of any comments submitted to the record, I cannot
find that CARB's protectiveness determination is arbitrary and
capricious and thus I cannot deny CARB's authorization request based on
this criterion.
B. Need for California Standards To Meet Compelling and Extraordinary
Conditions
Section 209(e)(2)(A)(ii) of the Act instructs that EPA cannot grant
an authorization if the agency finds that California ``does not need
such California standards to meet compelling and extraordinary
conditions.'' EPA's inquiry under this second criterion (found both in
paragraph 209(b)(1)(B) and 209(e)(2)(A)(ii)) has been to determine
whether California needs its own mobile source pollution program (i.e.
set of standards) for the relevant class or category of vehicles or
engines (e.g., on-highway mobile source or nonroad mobile source) to
meet compelling and extraordinary conditions, and not whether the
specific standards that are the subject of the authorization or waiver
request are necessary to meet such conditions.\33\
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\33\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887-18890
(May 3, 1984).
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California has asserted its longstanding position that the State
continues to need its own nonroad engine program to meet serious air
pollution problems.\34\ CARB notes that ``California, and particularly
the South Coast and San Joaquin Valley Air Basins, continue to
experience some of the worst air quality in the nation and continue to
be in non-attainment with national ambient air quality standards for
fine particulate matter (``PM2.5'') and ozone. The unique
geographical and climatic conditions, and the tremendous growth in on
and off-road vehicle population and use that moved Congress to
authorize California to establish separate on-road motor vehicle
standards in 1967 and off-road engine standards in 1990 still exists
today.\35\
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\34\ See Authorization Request Support Document at p. 12,
referencing CARB Board Resolution 13-33.
\35\ Id. See 74 FR 32744, 32762-32763 (July 8, 2009); 79 FR
6584, 6588-6590 (February 4, 2014).
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There has been no evidence submitted to indicate that California's
compelling and extraordinary conditions do not continue to exist.
California, including the South Coast and the San Joaquin Valley air
basins, continues to experience some of the worst air quality in the
nation and continues to be in non-attainment with national ambient air
quality standards for PM2.5 and ozone.\36\ In addition, EPA
is not aware of any other information that would suggest that
California no longer needs its nonroad emission program.
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\36\ 74 FR 32744, 32762-63 (July 8, 2009), 76 FR 77515, 77518
(December 13, 2011), 81 FR 95982 (December 29, 2016). EPA
continually evaluates the air quality conditions in the United
States, including California. California continues to experience
some of the worst air quality in the country and continues to be in
nonattainment with National Ambient Air Quality Standards for fine
particulate matter and ozone, see ``Notice of Availability of the
Environmental Protection Agency's Preliminary Interstate Ozone
Transport Modeling Data for the 2015 Ozone National Ambient Air
Quality Standard (NAAQS)'' at EPA-HQ-OAR-2016-0751.
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Therefore, based on the record of this request and absence of
comments or other information to the contrary, I cannot find that
California does not continue to need such state standards, including
the OHRV Amendments, to address the ``compelling and extraordinary
conditions'' underlying the state's air pollution problems. I have
determined that I cannot deny California authorization for its OHRV
Amendments based on the section 209(e)(2)(A)(ii) criterion.
C. Consistency With Section 209 of the Clean Air Act
Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot
grant an authorization if California's standards and enforcement
procedures are not consistent with ``this section.'' As described
above, EPA's section 209(e) rule states that the Administrator shall
not grant authorization to California if she finds (among other tests)
that the ``California standards and accompanying enforcement procedures
are not consistent with section 209.'' EPA has interpreted this
requirement to mean that California standards and accompanying
enforcement procedures must be consistent with at least sections
209(a), 209(e)(1), and 209(b)(1)(C), as EPA has interpreted this last
subsection in the context of motor vehicle waivers. Thus, this can be
viewed as a three-pronged test.
1. Consistency With Section 209(a) and 209(e)(1)
To be consistent with section 209(a) of the Clean Air Act,
California's OHRV Amendments (and CARB's underlying OHRV regulation)
must not apply to new motor vehicles or new motor vehicle engines.
California's OHRV regulation applies to a wide variety of vehicles,
including off-road motorcycles, ATVs, off-road sport and utility
vehicles, sand cars, and golf carts. CARB states that the OHRV
Amendments, much like the previously authorized OHRV regulation, do not
apply to the categories of preempted mobile sources. No commenter
presented otherwise, and EPA is not otherwise aware of any contrary
evidence; therefore, EPA cannot deny California's request on the basis
that California's OHRV regulation (including the OHRV Amendments) is
not consistent with section 209(a).
To be consistent with section 209(e)(1) of the Clean Air Act,
California's OHRV regulation must not affect new farming or
construction vehicles or engines that are below 175 horsepower, or new
locomotives or their engines. CARB presents that OHRV engines are not
used in locomotives and are not primarily used in farm and construction
equipment or vehicles. No commenter presented otherwise, and EPA is not
otherwise aware of any contrary evidence; therefore, I cannot deny
California's request on the basis that California's OHRV regulation
[[Page 6544]]
(including the OHRV Amendments) is not consistent with section
209(e)(1).
2. Consistency With Section 209(b)(1)(C)
The requirement that California's standards be consistent with
section 209(b)(1)(C) of the Clean Air Act effectively requires
consistency with section 202(a) of the Act. California standards are
inconsistent with section 202(a) of the Act if there is inadequate
lead-time to permit the development of technology necessary to meet
those requirements, giving appropriate consideration to the cost of
compliance within that time. California's accompanying enforcement
procedures would also be inconsistent with section 202(a) if the
federal and California test procedures were not consistent. The scope
of EPA's review of whether California's action is consistent with
section 202(a) is narrow. The determination is limited to whether those
opposed to the authorization or waiver have met their burden of
establishing that California's standards are technologically
infeasible, or that California's test procedures impose requirements
inconsistent with the federal test procedure.\37\
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\37\ MEMA I, 627, F.2d at 1126.
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Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\38\ Section 202(a)(2)
states, in part, that any regulation promulgated under its authority
``shall take effect after such period as the Administrator finds
necessary to permit the development and application of the requisite
technology, giving appropriate consideration to the cost of compliance
within such period.'' Section 202(a) thus requires the Administrator to
first determine whether adequate technology already exists; or if it
does not, whether there is adequate time to develop and apply the
technology before the standards go into effect. The latter scenario
also requires the Administrator to decide whether the cost of
developing and applying the technology within that time is feasible.
Previous EPA waivers are in accord with this position.\39\
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\38\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
\39\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182,
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
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CARB states that its Staff Report explains the technology needed to
comply with the primary diurnal evaporative emission standards and that
such technology clearly exists as it is being used by manufacturers of
on-road mobile sources.\40\ In addition, CARB states that it received
no comments indicating that the requirements to comply with the new
evaporative emission standards was technically infeasible.\41\ As
described in the Staff Report, CARB identified (but did not prescribe)
technologies that have been successfully employed in the automotive
sector and that are expected to be utilized in OHRVs. These
technologies include: Low permeation materials to be utilized in fuel
tanks and fuel lines, activated carbon canisters to control diurnal
emissions by capturing hydrocarbons that would otherwise be vented when
the fuel system heats up during engine operation or storage, pressure
relief valves on the vent of the fuel tank, strategic placement or
insulation of the fuel tank so the tank is not affected by large
temperature increases, and improvements in connectors, carburetors and
fuel injectors.\42\ CARB also identifies roll-over values presently
used in on-road motorcycles to meet the fuel system leakage test and
notes that the ATV fuel filler neck compatibility requirement presents
no issue since the fuel pipe sealing specification is identical to on-
road motor vehicles.\43\
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\40\ Authorization Request Support Document at 14, citing ``CARB
Staff Report: Initial Statement of Reasons for Proposed
Regulation,'' dated June 5, 2013. EPA-HQ-OAR-2016-0181-0004.
\41\ Id.
\42\ Id. at 14-15.
\43\ Id. at 15-16.
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With regard to test procedure consistency, CARB states that the
OHRV Amendments present no issue of incompatibility between California
and federal test procedures since there are no analogous federal
standards or associated test procedures applicable to 2018 and
subsequent model year nonroad recreational vehicles and engines.\44\
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\44\ Id. at 16-17.
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EPA did not receive any comments that suggests California's OHRV
Amendments regulations are technologically infeasible. In addition, EPA
believes that CARB has reasonably identified, within the lead time
provided, the types of technologies that can be used to meet the OHRV
Amendments. EPA is not otherwise aware of any evidence to suggest such
technologies cannot be employed in the manner CARB has identified. In
addition, EPA finds no basis to determine that CARB's test procedures
are incompatible with federal test procedures given the lack of
applicable federal evaporative emission standards and test procedures.
Therefore, based on the record before us, I cannot find that the
OHRV Amendments are technologically infeasible or otherwise
inconsistent with section 202(a). Therefore, I cannot deny CARB's
authorization based on the section 202(a) criterion.
III. Decision
After evaluating California's OHRV Amendments and CARB's
submissions for EPA review as described above, I am granting an
authorization for the OHRV Amendments.
This decision will affect not only persons in California, but also
manufacturers and/or owners/operators nationwide who must comply with
California's requirements. In addition, because other states may adopt
California's standards for which a section 209(e)(2)(A) authorization
has been granted if certain criteria are met, this decision would also
affect those states and those persons in such states. See CAA section
209(e)(2)(B). For these reasons, EPA determines and finds that this is
a final action of national applicability, and also a final action of
nationwide scope or 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 March 20, 2017. 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 11, 2017.
Gina McCarthy,
Administrator.
[FR Doc. 2017-01259 Filed 1-18-17; 8:45 am]
BILLING CODE 6560-50-P