82 FR 6540 - California State Nonroad Engine Pollution Control Standards; Evaporative Emission Standards and Test Procedures for Off-Highway Recreational Vehicles (OHRVs); Notice of Decision
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 12 (January 19, 2017)
Federal Register Volume 82, Issue 12 (January 19, 2017)
| Page Range | 6540-6544 | |
| FR Document | 2017-01259 |
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)] [Notices] [Pages 6540-6544] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-01259] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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: [email protected], 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: [email protected]. 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\ --------------------------------------------------------------------------- \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]. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \5\ Authorization Request Support Document. \6\ CARB Resolution 13-33, July 25, 2013, EPA-HQ-OAR-2016-0181- 0006. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \7\ See Authorization Request Support Document at 8-10 for a complete list of provisions. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \13\ H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967). \14\ S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967). --------------------------------------------------------------------------- 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: --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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]] --------------------------------------------------------------------------- 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''), Ford Motor Co. v. EPA, 606 F.2d 1293, 1300 (D.C. Cir. 1979). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \24\ Id. at 1126. \25\ 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.\26\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \27\ Id. \28\ 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. 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\ --------------------------------------------------------------------------- \29\ See, e.g., ``California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption,'' 40 FR 23102 (May 28, 1975), at 23103. --------------------------------------------------------------------------- E. EPA's Administrative Process in Consideration of California's 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. --------------------------------------------------------------------------- \30\ 81 FR 52684 (August 9, 2014). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \31\ Authorization Request Support Document at 11. \32\ Id. at 12. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \33\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887-18890 (May 3, 1984). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \37\ MEMA I, 627, F.2d at 1126. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \44\ Id. at 16-17. --------------------------------------------------------------------------- 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
![6540 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices
Dated: January 11, 2017. is (202) 566–1744. The Air and and ATVs.3 EPA’s evaporative emission
Kristin Gullatt, Radiation Docket and Information standards applied to 2008 and
Deputy Director, Water Division, EPA Region Center’s Web site is http://www.epa.gov/ subsequent model year nonroad
9. oar/docket.html. The electronic mail recreational vehicles, and established a
Dated: January 11, 2017. (email) address for the Air and fuel tank permeation limit of 1.5 grams
Daniel D. Opalski, Radiation Docket is: a-and-r-Docket@ per square meter per day (g/m2/day)
Director, Office of Water and Watersheds, epa.gov, the telephone number is (202) and a fuel hose permeation limit of 15
EPA Region 10. 566–1742, and the fax number is (202) g/m2/day. Correspondingly, CARB’s
[FR Doc. 2017–01231 Filed 1–18–17; 8:45 am] 566–9744. An electronic version of the 2007 amendments to their OHRV
public docket is available through the regulation set forth, among other
BILLING CODE 6560–50–P
federal government’s electronic public provisions, evaporative emission
docket and comment system. You may standards for new 2008 and subsequent
ENVIRONMENTAL PROTECTION access EPA dockets at http:// model year OHRVs that are identical to
AGENCY www.regulations.gov. After opening the the federal evaporative emission
www.regulations.gov Web site, enter standards for 2008 and subsequent
[EPA–HQ–OAR–2016–0181; FRL–9958–63– EPA–HQ–OAR–2016–0181 in the ‘‘Enter model year nonroad vehicles. In 2014,
OAR] CARB adopted the OHRV Amendments
Keyword or ID’’ fill-in box to view
documents in the record. Although a that establish a new test procedure and
California State Nonroad Engine
part of the official docket, the public evaporative emission standard of 1.0
Pollution Control Standards;
docket does not include Confidential gram per day (g/day) of total organic gas
Evaporative Emission Standards and
Business Information (‘‘CBI’’) or other (TOG) for a 3-day diurnal period.4
Test Procedures for Off-Highway
Recreational Vehicles (OHRVs); Notice information whose disclosure is A. CARB’s Authorization Request
of Decision restricted by statute.
In a letter dated February 26, 2016,
EPA’s Office of Transportation and CARB submitted to EPA its request
AGENCY: Environmental Protection Air Quality (‘‘OTAQ’’) maintains a Web
Agency. pursuant to section 209(e) of the CAA,
page that contains general information regarding authorization of its OHRV
ACTION: Notice of decision. on its review of California waiver and Amendments.5 The CARB Board
authorization requests. Included on that approved the OHRV Amendments on
SUMMARY: The Environmental Protection
page are links to prior waiver Federal July 25, 2013 (by Resolution 13–33).6
Agency (‘‘EPA’’) is granting the
Register notices, some of which are The OHRV Amendments were approved
California Air Resources Board
cited in today’s notice. The page can be by California’s Office of Administrative
(‘‘CARB’’) its request for an
accessed at http://www.epa.gov/otaq/ Law (OAL) on December 17, 2014 and
authorization of its amendments to its
cafr.htm. became operative state law on April 1,
Off-Highway Recreational Vehicle
regulation (‘‘OHRV Amendments’’). The FOR FURTHER INFORMATION CONTACT:
2015.
OHRV Amendments establish new The OHRV Amendments differ from
David Dickinson, Attorney-Advisor,
evaporative emission standards and test preexisting OHRV requirements because
Transportation Climate Division, Office
procedures for 2018 and subsequent they impose a 1.0 g/day evaporative
of Transportation and Air Quality, U.S.
model year OHRVs. The California emissions standard for the complete
Environmental Protection Agency, 1200
OHRV category encompasses a wide OHRV fuel system. Previously the
Pennsylvania Avenue, (6405J), NW.,
variety of vehicles, including off-road OHRV regulation only required fuel
Washington, DC 20460. Telephone:
motorcycles, all-terrain vehicles tanks and fuel hoses to meet specific
(202) 343–9256. Fax: (202) 343–2800.
(‘‘ATVs’’), off-road sport and utility permeation standards. The OHRV
Email: Dickinson.David@epa.gov.
vehicles, sand cars, and golf carts. This Amendments comprehensively address
decision is issued under the authority of I. Background all potential sources of evaporative
the Clean Air Act (‘‘CAA’’ or ‘‘Act’’). emissions, including running losses
CARB first adopted exhaust emission (evaporative emissions generated during
DATES: Petitions for review must be filed standards and test procedures vehicle operation), hot soak (evaporative
by March 20, 2017. applicable to OHRVs and the engines emission generated directly after vehicle
ADDRESSES: EPA has established a used in OHRVs in 1994, and EPA operation), and diurnal losses
docket for this action under Docket ID authorized California to enforce such (evaporative emissions generated during
EPA–HQ–OAR–2016–0181. All standards and test procedures in 1996.1 long term storage). The OHRV
documents relied upon in making this CARB subsequently adopted
decision, including those submitted to amendments to the OHRV regulation in 3 67 FR 68242 (November 8, 2002). The terms
EPA by CARB, are contained in the 1996, 1999, 2003, and 2007, and EPA ‘‘off-road’’ and ‘‘nonroad’’ are used interchangeably,
public docket. Publicly available docket determined those amendments either generally CARB uses the term off-road and EPA
materials are available either uses the term nonroad.
fell within the scope of previously 4 CARB’s regulatory text enacted by the OHRV
electronically through granted authorizations or met the Amendments (which EPA is authorizing by this
www.regulations.gov or in hard copy at criteria for a new authorization.2 action), is set forth in California Code of
the Air and Radiation Docket in the EPA In 2002, EPA adopted regulations that Regulations, Title 13, sections 2416, 2417, 2418,
Headquarters Library, EPA West 2419, 2419.1, 2419.2, 3419.3, and 2419.4. A full
established both exhaust and description of the OHVR Amendments is found in
Building, Room 3334, located at 1301
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evaporative emission standards for CARB’s Authorization Request Support Document,
Constitution Avenue NW., Washington, nonroad recreational vehicles and 2014 Amendments to Evaporative Emissions
DC. The Public Reading Room is open engines, including off-road motorcycles Control Requirements for Off Highway Recreational
to the public on all federal government Vehicles, dated February 26, 2016 (‘‘Authorization
Request Support Document’’) at EPA–HQ–OAR–
working days from 8:30 a.m. to 4:30 1 61 2016–0181–0002.
FR 69093 (December 3, 1996).
p.m.; generally, it is open Monday 2 65 FR 69673 (November 20, 2000) [1996 5 Authorization Request Support Document.
through Friday, excluding holidays. The amendments]; 79 FR 6584 (February 14, 2014) 6 CARB Resolution 13–33, July 25, 2013, EPA–
telephone number for the Reading Room [1999, 2003, and 2007 amendments]. HQ–OAR–2016–0181–0006.
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![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices 6541
Amendments establish diurnal and fuel procedures are not consistent with are not consistent with section 202(a)’’
system leakage standards and associated [CAA section 209].9 of the Act. Previous decisions granting
test procedures for new 2018 and On July 20, 1994, EPA promulgated a waivers and authorizations have noted
subsequent model year OHRVs. In rule interpreting the three criteria set that state standards and enforcement
addition, the OHRV Amendments forth in section 209(e)(2)(A) that EPA procedures will be found to be
establish durability test procedures and must consider before granting any inconsistent with section 202(a) if (1)
other test procedure provisions for California authorization request for there is inadequate lead time to permit
preconditioning evaporative emission nonroad engine or vehicle emission the development of the necessary
standards.10 EPA revised these technology, giving appropriate
control systems and components,
regulations in 1997.11 As stated in the consideration to the cost of compliance
running loss and hot soak
preamble to the 1994 rule, EPA within that time,13 or (2) the federal and
preconditioning tests, and test historically has interpreted the
procedures for the 72-hour and steady- state testing procedures impose
consistency inquiry under the third inconsistent certification
state diurnal tests. Finally, the OHRV criterion, outlined above and set forth in requirements.14
Amendments include many of CARB’s section 209(e)(2)(A)(iii), to require, at
general compliance provisions, In light of the similar language in
minimum, that California standards and
including among other provisions: sections 209(b) and 209(e)(2)(A), EPA
enforcement procedures be consistent
Annual certification of the evaporative has reviewed California’s requests for
with section 209(a), section 209(e)(1),
emission control systems, the authorization of nonroad vehicle or
and section 209(b)(1)(C) of the Act.12
applicability of the in-use recall In order to be consistent with section engine standards under section
209(a), California’s nonroad standards 209(e)(2)(A) using the same principles
provisions that CARB previously
and enforcement procedures must not that it has historically applied in
adopted for OHRVs in 1994, and
apply to new motor vehicles or new reviewing requests for waivers of
emissions warranty requirements.7
motor vehicle engines. To be consistent preemption for new motor vehicle or
B. Clean Air Act Nonroad Engine and with section 209(e)(1), California’s new motor vehicle engine standards
Vehicle Authorizations nonroad standards and enforcement under section 209(b).15 These principles
procedures must not attempt to regulate include, among other things, that EPA
Section 209(e)(1) of the Act engine categories that are permanently should limit its inquiry to the three
permanently preempts any state, or preempted from state regulation. To specific authorization criteria identified
political subdivision thereof, from determine consistency with section in section 209(e)(2)(A),16 and that EPA
adopting or attempting to enforce any 209(b)(1)(C), EPA typically reviews should give substantial deference to the
standard or other requirement relating nonroad authorization requests under policy judgments California has made in
to the control of emissions for certain the same ‘‘consistency’’ criteria that are adopting its regulations. In previous
new nonroad engines or vehicles.8 For applied to motor vehicle waiver waiver decisions, EPA has stated that
all other nonroad engines, states requests under section 209(b)(1)(C). Congress intended EPA’s review of
generally are preempted from adopting That provision provides that the California’s decision-making be narrow.
and enforcing standards and other Administrator shall not grant California EPA has rejected arguments that are not
requirements relating to the control of a motor vehicle waiver if she finds that specified in the statute as grounds for
emissions. Section 209(e)(2), however, California ‘‘standards and denying a waiver:
requires the Administrator, after notice accompanying enforcement procedures The law makes it clear that the waiver
and opportunity for public hearing, to requests cannot be denied unless the specific
authorize California to adopt and 9 EPA’s review of California regulations under findings designated in the statute can
section 209 is not a broad review of the properly be made. The issue of whether a
enforce standards and other reasonableness of the regulations or its proposed California requirement is likely to
requirements relating to the control of compatibility with all other laws. Sections 209(b) result in only marginal improvement in
emissions from such vehicles or engines and 209(e) of the Clean Air Act limit EPA’s California air quality not commensurate with
authority to deny California requests for waivers
if California determines that California and authorizations to the three criteria listed
its costs or is otherwise an arguably unwise
standards will be, in the aggregate, at therein. As a result, EPA has consistently refrained exercise of regulatory power is not legally
least as protective of public health and from denying California’s requests for waivers and pertinent to my decision under section 209,
welfare as applicable Federal standards. authorizations based on any other criteria. In so long as the California requirement is
instances where the U.S. Court of Appeals has consistent with section 202(a) and is more
However, EPA shall not grant such reviewed EPA decisions declining to deny waiver stringent than applicable Federal
authorization if it finds that (1) the requests based on criteria not found in section requirements in the sense that it may result
determination of California is arbitrary 209(b), the Court has upheld and agreed with EPA’s in some further reduction in air pollution in
determination. See Motor and Equipment
and capricious; (2) California does not Manufacturers Ass’n v. Nichols, 142 F.3d 449, 462–
California.17
need such California standards to meet 63, 466–67 (D.C. Cir.1998), Motor and Equipment
compelling and extraordinary Manufacturers Ass’n v. EPA, 627 F.2d 1095, 1111, 13 H. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967).
1114–20 (D.C. Cir. 1979). See also 78 FR 58090, 14 S. Rep. No. 403, 90th Cong., 1st Sess. 32 (1967).
conditions; or (3) California standards
58120 (September 20, 2013). 15 See Engine Manufacturers Association v. EPA,
and accompanying enforcement 10 See ‘‘Air Pollution Control; Preemption of State 88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was
Regulation for Nonroad Engine and Vehicle within the bounds of permissible construction in
7 See Authorization Request Support Document at Standards,’’ 59 FR 36969 (July 20, 1994). analogizing § 209(e) on nonroad sources to § 209(a)
8–10 for a complete list of provisions. 11 See ‘‘Control of Air Pollution: Emission on motor vehicles.’’
8 States are expressly preempted from adopting or Standards for New Nonroad Compression-Ignition 16 See EPA’s Final 209(e) rulemaking at 59 FR
mstockstill on DSK3G9T082PROD with NOTICES
attempting to enforce any standard or other Engines at or Above 37 Kilowatts; Preemption of 36969, 36983 (July 20, 1994).
requirement relating to the control of emissions State Regulation for Nonroad Engine and Vehicle 17 ‘‘Waiver of Application of Clean Air Act to
from new nonroad engines which are used in Standards; Amendments to Rules,’’ 62 FR 67733 California State Standards,’’ 36 FR 17458 (Aug. 31,
construction equipment or vehicles or used in farm (December 30, 1997). The applicable regulations are 1971). Note that the more stringent standard
equipment or vehicles and which are smaller than now found in 40 CFR part 1074, subpart B, section expressed here, in 1971, was superseded by the
175 horsepower. Such express preemption under 1074.105. 1977 amendments to section 209, which established
section 209(e)(1) of the Act also applies to new 12 59 FR 36969 (July 20, 1994). EPA has that California must determine that its standards
locomotives or new engines used in locomotives. interpreted 209(b)(1)(C) in the context of section are, in the aggregate, at least as protective of public
CAA § 209(e)(1), 42 U.S.C. 7543(e)(1)(A). 209(b) motor vehicle waivers. Continued
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![6542 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices
This principle of narrow EPA review waiver provision, but elected instead to With regard to the protectiveness
has been upheld by the U.S. Court of expand California’s flexibility to adopt a finding, the court upheld the
Appeals for the District of Columbia complete program of motor vehicle Administrator’s position that, to deny a
Circuit.18 Thus, EPA’s consideration of emission controls. The report explains waiver, there must be ‘‘clear and
all the evidence submitted concerning that the amendment is intended to ratify compelling evidence’’ to show that
an authorization decision is and strengthen the preexisting proposed enforcement procedures
circumscribed by its relevance to those California waiver provision and to undermine the protectiveness of
questions that may be considered under affirm the underlying intent of that California’s standards.27 The court
section 209(e)(2)(A). provision, that is, to afford California noted that this standard of proof also
the broadest possible discretion in accords with the congressional intent to
C. Deference to California
selecting the best means to protect the provide California with the broadest
In previous waiver and authorization health of its citizens and the public possible discretion in setting regulations
decisions, EPA has recognized that the welfare.22 it finds protective of the public health
intent of Congress in creating a limited and welfare.28
review based on the section 209(b)(1) D. Burden and Standard of Proof
With respect to the consistency
criteria was to ensure that the federal As the U.S. Court of Appeals for the finding, the court did not articulate a
government did not second-guess state D.C. Circuit has made clear in MEMA I, standard of proof applicable to all
policy choices. As the agency explained opponents of a waiver request by proceedings, but found that the
in one prior waiver decision: California bear the burden of showing opponents of the waiver were unable to
It is worth noting . . . I would feel that the statutory criteria for a denial of meet their burden of proof even if the
constrained to approve a California approach the request have been met: standard were a mere preponderance of
to the problem which I might also feel unable the evidence. EPA’s past waiver
to adopt at the federal level in my own [T]he language of the statute and its
legislative history indicate that California’s decisions have consistently made clear
capacity as a regulator. The whole approach that: ‘‘[E]ven in the two areas
of the Clean Air Act is to force the regulations, and California’s determinations
development of new types of emission that they must comply with the statute, when concededly reserved for Federal
control technology where that is needed by presented to the Administrator are presumed judgment by this legislation—the
compelling the industry to ‘‘catch up’’ to to satisfy the waiver requirements and that existence of ‘compelling and
some degree with newly promulgated the burden of proving otherwise is on extraordinary’ conditions and whether
standards. Such an approach . . . may be whoever attacks them. California must the standards are technologically
attended with costs, in the shape of reduced present its regulations and findings at the
feasible—Congress intended that the
product offering, or price or fuel economy hearing and thereafter the parties opposing
the waiver request bear the burden of standards of EPA review of the State
penalties, and by risks that a wider number
of vehicle classes may not be able to persuading the Administrator that the waiver decision to be a narrow one.’’ 29
complete their development work in time. request should be denied.23 E. EPA’s Administrative Process in
Since a balancing of these risks and costs Consideration of California’s
against the potential benefits from reduced The same logic applies to
authorization requests. The Commercial Harbor Craft Regulations
emissions is a central policy decision for any
regulatory agency under the statutory scheme Administrator’s burden, on the other Upon review of CARB’s request, EPA
outlined above, I believe I am required to hand, is to make a reasonable evaluation offered an opportunity for a public
give very substantial deference to California’s of the information in the record in hearing, and requested written comment
judgments on this score.19 coming to the waiver decision. As the on issues relevant to a section
Similarly, EPA has stated that the court in MEMA I stated: ‘‘here, too, if the 209(e)(2)(A) authorization analysis, by
text, structure, and history of the Administrator ignores evidence publication of a Federal Register notice
California waiver provision clearly demonstrating that the waiver should on August 9, 2016.30 Specifically, we
indicate both a congressional intent and not be granted, or if he seeks to requested comment on: (a) Whether
appropriate EPA practice of leaving the overcome that evidence with CARB’s determination that its
decision on ‘‘ambiguous and unsupported assumptions of his own, standards, in the aggregate, are at least
controversial matters of public policy’’ he runs the risk of having his waiver as protective of public health and
to California’s judgment.20 This decision set aside as ‘arbitrary and welfare as applicable federal standards
interpretation is supported by relevant capricious.’ ’’ 24 Therefore, the is arbitrary and capricious, (b) whether
discussion in the House Committee Administrator’s burden is to act California needs such standards to meet
Report for the 1977 amendments to the ‘‘reasonably.’’ 25 compelling and extraordinary
Clean Air Act.21 Congress had the With regard to the standard of proof, conditions, and (c) whether California’s
opportunity through the 1977 the court in MEMA I explained that the standards and accompanying
amendments to restrict the preexisting Administrator’s role in a section 209 enforcement procedures are consistent
proceeding is to: with section 209 of the Act.
health and welfare as applicable Federal standards.
[. . .] consider all evidence that passes the EPA did not receive a request for
In the 1990 amendments to section 209, Congress hearing and therefore no hearing was
established section 209(e) and similar language in threshold test of materiality and . . .
section 209(e)(1)(i) pertaining to California’s thereafter assess such material evidence held. EPA did not receive any written
nonroad emission standards which California must against a standard of proof to determine comments. EPA’s evaluation is based on
determine to be, in the aggregate, at least as whether the parties favoring a denial of the the record, which includes CARB’s
protective of public health and welfare as waiver have shown that the factual authorization request and
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applicable federal standards. circumstances exist in which Congress
18 See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, accompanying documents.
intended a denial of the waiver.26
627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’), Ford
Motor Co. v. EPA, 606 F.2d 1293, 1300 (D.C. Cir. 27 Id.
22 Id.
1979). 28 Id.
19 40 FR 23102, 23103–23104 (May 28, 1975). 23 MEMA I, supra note 17, at 1121. 29 See, e.g., ‘‘California State Motor Vehicle
20 Id. at 23104; 58 FR 4166 (January 13, 1993). 24 Id. at 1126.
Pollution Control Standards; Waiver of Federal
21 MEMA I, 627 F.2d at 1110 (citing H.R. Rep. No. 25 Id. at 1126. Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103.
294, 95th Cong., 1st Sess. 301–302 (1977)). 26 Id. at 1122. 30 81 FR 52684 (August 9, 2014).
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(including the OHRV Amendments) is states that it received no comments infeasible or otherwise inconsistent
not consistent with section 209(e)(1). indicating that the requirements to with section 202(a). Therefore, I cannot
comply with the new evaporative deny CARB’s authorization based on the
2. Consistency With Section 209(b)(1)(C)
emission standards was technically section 202(a) criterion.
The requirement that California’s infeasible.41 As described in the Staff
standards be consistent with section Report, CARB identified (but did not III. Decision
209(b)(1)(C) of the Clean Air Act prescribe) technologies that have been
effectively requires consistency with After evaluating California’s OHRV
successfully employed in the Amendments and CARB’s submissions
section 202(a) of the Act. California automotive sector and that are expected
standards are inconsistent with section for EPA review as described above, I am
to be utilized in OHRVs. These granting an authorization for the OHRV
202(a) of the Act if there is inadequate technologies include: Low permeation
lead-time to permit the development of Amendments.
materials to be utilized in fuel tanks and
technology necessary to meet those fuel lines, activated carbon canisters to This decision will affect not only
requirements, giving appropriate control diurnal emissions by capturing persons in California, but also
consideration to the cost of compliance hydrocarbons that would otherwise be manufacturers and/or owners/operators
within that time. California’s vented when the fuel system heats up nationwide who must comply with
accompanying enforcement procedures during engine operation or storage, California’s requirements. In addition,
would also be inconsistent with section pressure relief valves on the vent of the because other states may adopt
202(a) if the federal and California test fuel tank, strategic placement or California’s standards for which a
procedures were not consistent. The insulation of the fuel tank so the tank section 209(e)(2)(A) authorization has
scope of EPA’s review of whether is not affected by large temperature been granted if certain criteria are met,
California’s action is consistent with increases, and improvements in this decision would also affect those
section 202(a) is narrow. The connectors, carburetors and fuel states and those persons in such states.
determination is limited to whether injectors.42 CARB also identifies roll- See CAA section 209(e)(2)(B). For these
those opposed to the authorization or over values presently used in on-road reasons, EPA determines and finds that
waiver have met their burden of motorcycles to meet the fuel system this is a final action of national
establishing that California’s standards leakage test and notes that the ATV fuel applicability, and also a final action of
are technologically infeasible, or that filler neck compatibility requirement nationwide scope or effect for purposes
California’s test procedures impose presents no issue since the fuel pipe of section 307(b)(1) of the Act. Pursuant
requirements inconsistent with the sealing specification is identical to on- to section 307(b)(1) of the Act, judicial
federal test procedure.37 road motor vehicles.43 review of this final action may be sought
Congress has stated that the
With regard to test procedure only in the United States Court of
consistency requirement of section
consistency, CARB states that the OHRV Appeals for the District of Columbia
202(a) relates to technological
Amendments present no issue of Circuit. Petitions for review must be
feasibility.38 Section 202(a)(2) states, in
incompatibility between California and filed by March 20, 2017. Judicial review
part, that any regulation promulgated
federal test procedures since there are of this final action may not be obtained
under its authority ‘‘shall take effect
no analogous federal standards or in subsequent enforcement proceedings,
after such period as the Administrator
associated test procedures applicable to pursuant to section 307(b)(2) of the Act.
finds necessary to permit the
2018 and subsequent model year
development and application of the IV. Statutory and Executive Order
nonroad recreational vehicles and
requisite technology, giving appropriate Reviews
engines.44
consideration to the cost of compliance EPA did not receive any comments
within such period.’’ Section 202(a) As with past authorization and waiver
that suggests California’s OHRV
thus requires the Administrator to first decisions, this action is not a rule as
Amendments regulations are
determine whether adequate technology defined by Executive Order 12866.
technologically infeasible. In addition,
already exists; or if it does not, whether Therefore, it is exempt from review by
EPA believes that CARB has reasonably
there is adequate time to develop and the Office of Management and Budget as
identified, within the lead time
apply the technology before the required for rules and regulations by
provided, the types of technologies that
standards go into effect. The latter Executive Order 12866.
can be used to meet the OHRV
scenario also requires the Administrator Amendments. EPA is not otherwise In addition, this action is not a rule
to decide whether the cost of developing aware of any evidence to suggest such as defined in the Regulatory Flexibility
and applying the technology within that technologies cannot be employed in the Act, 5 U.S.C. 601(2). Therefore, EPA has
time is feasible. Previous EPA waivers manner CARB has identified. In not prepared a supporting regulatory
are in accord with this position.39 addition, EPA finds no basis to flexibility analysis addressing the
CARB states that its Staff Report impact of this action on small business
determine that CARB’s test procedures
explains the technology needed to entities.
are incompatible with federal test
comply with the primary diurnal
procedures given the lack of applicable Further, the Congressional Review
evaporative emission standards and that
federal evaporative emission standards Act, 5 U.S.C. 801, et seq., as added by
such technology clearly exists as it is
and test procedures. the Small Business Regulatory
being used by manufacturers of on-road Therefore, based on the record before
mobile sources.40 In addition, CARB Enforcement Fairness Act of 1996, does
us, I cannot find that the OHRV not apply because this action is not a
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37 MEMA I, 627, F.2d at 1126.
Amendments are technologically rule for purposes of 5 U.S.C. 804(3).
38 H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301
Reasons for Proposed Regulation,’’ dated June 5, Dated: January 11, 2017.
(1977).
39 See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 2013. EPA–HQ–OAR–2016–0181–0004. Gina McCarthy,
41 Id.
FR 32182, 32183 (July 25, 1978); 41 FR 44209, Administrator.
42 Id. at 14–15.
44213 (October 7, 1976).
40 Authorization Request Support Document at 43 Id. at 15–16. [FR Doc. 2017–01259 Filed 1–18–17; 8:45 am]
14, citing ‘‘CARB Staff Report: Initial Statement of 44 Id. at 16–17. BILLING CODE 6560–50–P
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Document Created: 2018-02-01 15:15:34
Document Modified: 2018-02-01 15:15:34
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of decision. | |
| Dates | Petitions for review must be filed by March 20, 2017. | |
| 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: [email protected] | |
| FR Citation | 82 FR 6540 |
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