6584 Federal Register / Vol. 79, No. 23 / Tuesday, February 4, 2014 / Notices 

1 ‘‘California State Nonroad Engine and Vehicle 

Pollution Control Standards; Authorization of State 

Standards; Notice of Decision,’’ 61 FR 69093 

(December 31, 1996). 

2CARB Request for Authorization Letter, March 

24, 2000 (‘‘2000 Request’’), EPA–HQ–OAR–2012– 

0742–0002; CARB Request for Authorization Letter, 

February 19, 2004 (‘‘2004 Request’’), EPA–HQ– 

OAR–2012–0742–0008; CARB Request for 

Authorization Letter, March 24, 2010 (‘‘2010 

Request’’), EPA–HQ–OAR–2012–0742–0014. 

3 2000 Request, supra note 2, at 2. 

clicking on the links or querying the 

docket number. 

Any person desiring to intervene or 

protest in any of the above proceedings 

must file in accordance with Rules 211 

and 214 of the Commission’s 

Regulations (18 CFR 385.211 and 

385.214) on or before 5:00 p.m. Eastern 

time on the specified comment date. 

Protests may be considered, but 

intervention is necessary to become a 

party to the proceeding. 

eFiling is encouraged. More detailed 

information relating to filing 

requirements, interventions, protests, 

service, and qualifying facilities filings 

can be found at: http://www.ferc.gov/ 

docs-filing/efiling/filing-req.pdf. For 

other information, call (866) 208–3676 

(toll free). For TTY, call (202) 502–8659. 

Dated: January 28, 2014. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2014–02236 Filed 2–3–14; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2012–0742; FRL 9906–14– 

OAR] 

California State Nonroad Engine 

Pollution Control Standards; OffHighway Recreational Vehicles and 

Engines; Notice of Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision. 

SUMMARY: The Environmental Protection 

Agency (EPA) is granting the California 

Air Resources Board’s (CARB’s) request 

for authorization of amendments to 

California’s Off-Highway Recreational 

Vehicles and Engines (OHRV) 

regulations, confirming that certain 

OHRV amendments are within-thescope of prior EPA authorizations, and 

confirming that certain OHRV 

amendments are not preempted by 

Clean Air Act. CARB’s OHRV 

regulations apply to all off-highway 

recreational vehicles (and to engines 

manufactured for use in such vehicles) 

produced on or after January 1, 1997, for 

sale, lease, use and introduction into 

commerce in California. This decision is 

issued under the authority of the Clean 

Air Act (CAA or Act). 

DATES: Petitions for review must be filed 

by April 7, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–HQ–OAR–2012–0742. All 

documents relied upon in making this 

decision, including those submitted to 

EPA by CARB, are contained in the 

public docket. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket in the EPA 

Headquarters Library, EPA West 

Building, Room 3334, located at 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

to the public on all federal government 

working days from 8:30 a.m. to 4:30 

p.m.; generally, it is open Monday 

through Friday, excluding holidays. The 

telephone number for the Reading Room 

is (202) 566–1744. The Air and 

Radiation Docket and Information 

Center’s Web site is http://www.epa.gov/ 

oar/docket.html. The electronic mail 

(email) address for the Air and 

Radiation Docket is: a-and-r-Docket@

epa.gov, the telephone number is (202) 

566–1742, and the fax number is (202) 

566–9744. An electronic version of the 

public docket is available through the 

federal government’s electronic public 

docket and comment system. You may 

access EPA dockets at http://

www.regulations.gov. After opening the 

www.regulations.gov Web site, enter 

EPA–HQ–OAR–2012–0742 in the ‘‘Enter 

Keyword or ID’’ fill-in box to view 

documents in the record. Although a 

part of the official docket, the public 

docket does not include Confidential 

Business Information (‘‘CBI’’) or other 

information whose disclosure is 

restricted by statute. 

EPA’s Office of Transportation and 

Air Quality (‘‘OTAQ’’) maintains a Web 

page that contains general information 

on its review of California waiver and 

authorization requests. Included on that 

page are links to prior waiver Federal 

Register notices, some of which are 

cited in today’s notice; the page can be 

accessed at http://www.epa.gov/otaq/

cafr.htm. 

FOR FURTHER INFORMATION CONTACT: 

Suzanne Bessette, Attorney-Advisor, 

Compliance Division, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105. Telephone: (734) 214–4703. Fax: 

(734) 214–4053. Email: 

bessette.suzanne@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In 1994, CARB adopted emission 

standards and test procedures for 

OHRVs. At that time, there were no 

analogous federal standards regulating 

emissions from the vehicles and engines 

covered by California’s OHRV 

regulations. EPA authorized CARB’s 

1994 OHRV regulations in 1996.1

California subsequently adopted three 

rounds of amendments to these 

regulations, the first in 1999, the second 

in 2003, and the third in 2006. CARB 

requested that EPA authorize each of 

these three amendment packages in 

letters dated March 24, 2000, November 

19, 2004, and March 24, 2010, 

respectively.2 The March 24, 2010 

request explicitly incorporates the 

previous two requests, and EPA here 

considers all three requests 

concurrently. 

A. California’s Authorization Requests 

The 1999 OHRV amendments did not 

change the numerical exhaust emission 

standards for OHRVs, but added a new 

compliance category that allowed 

OHRVs not meeting the applicable 

emissions standards to be certified 

subject to use restrictions (i.e., use in 

specified areas during specified times of 

the year). Such non-emissionscompliant OHRVs would be identified 

with a red sticker or ‘‘red tag,’’ while 

emissions-compliant OHRVs would be 

identified with a green sticker or ‘‘green 

tag.’’ The amendments also removed a 

competition vehicle exemption 

provision and added all-terrain vehicles 

(ATVs) over 600 pounds (lbs) to the 

existing definition of ATV. CARB 

requested that EPA confirm a withinthe-scope determination for the red tag 

program and for the removal of the 

competition exemption, and grant a full 

authorization for the addition of ATVs 

over 600 lbs. 

According to CARB, the goal of the 

1999 amendments was to provide 

economic relief to vehicle dealers in 

California who were contractually 

bound to sell products that did not meet 

the emission standards California 

established in 1994.3 Prior to the 1999 

amendments, two-stroke off-highway 

motorcycles could only be sold as 

competition models, and their use was 

limited to closed-course competitions. 

Following the amendments, such 

competition vehicles would be red 

tagged and allowed to operate during 

certain times of the year in certain 

geographic areas. The amendments 

provided for red tagged vehicles to be 

certified and sold in California and to be 

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Federal Register / Vol. 79, No. 23 / Tuesday, February 4, 2014 / Notices 6585 

4 ‘‘Initial Statement of Reasons, Public Hearing to 

Consider Amendments to the California Regulations 

for New 1997 and Later Off-Highway Recreational 

Vehicles and Engines,’’ October 23, 1999, EPA–HQ– 

OAR–2012–0742–0030, at 6. 

5 Id. at 8.CARB predicted lower emissions in 

limited use areas because red tag vehicles would be 

prohibited there during peak ozone seasons, 

whereas prior to the amendments these vehicles 

would have been covered by the competition 

exemption and their use would have been allowed 

year round. 

6 Id. at 7. 

7 2004 Request, supra note 2, at 1. 

8At the same time, CARB argued that future 

amendments of riding seasons and riding areas 

should not be subject to EPA approval, because they 

should be treated as ‘‘operational controls’’ not 

preempted under section 209(d) of the Clean Air 

Act. Id. at note 1. 

9 2010 Request, supra note 2, at 4–6. 

10 Id. at 1–2. 

11States 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. 

12See ‘‘Air Pollution Control; Preemption of State 

Regulation for Nonroad Engine and Vehicle 

Standards,’’ 59 FR 36969 (July 20, 1994). 

13See ‘‘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. 

14See supra note 12. EPA has interpreted 

209(b)(1)(C) in the context of section 209(b) motor 

vehicle waivers. 

operated in two situations. First, in 

‘‘unlimited use areas,’’ which are certain 

recreational use areas located in regions 

in attainment with the National 

Ambient Air Quality Standard (NAAQS) 

for ozone, red-tagged vehicles could be 

used without restriction, year-round. 

Second, in ‘‘limited use areas,’’ which 

are certain recreational use areas located 

in regions classified as nonattainment 

for the ozone NAAQS, red-tagged 

vehicles could be used only during 

‘‘riding seasons’’ specified for each area. 

The riding seasons in limited use areas 

restricted the operation of red-tagged 

vehicles during peak ozone periods, 

when the area was typically not in 

attainment with the ozone standard, 

usually the summer months. Out of 

more than 100 designated riding areas, 

approximately one-third were unlimited 

use areas and two-thirds were limited 

use areas.4 The vast majority of the 

riding areas were established on public 

lands managed by the California 

Department of Parks and Recreation, the 

United States Forest Service, or the 

United States Bureau of Land 

Management. CARB predicted that the 

red tag program would result in lower 

emissions from OHRVs in limited use 

areas during peak ozone periods, but 

higher emissions and a ‘‘possible minor 

impact on PM or toxics’’ in unlimited 

use areas, limited use areas during nonpeak seasons, and on a state-wide 

average.5 However, these predicted 

increases in emissions from OHRVs 

were expected to increase pollutants of 

concern only negligibly, and to have no 

impact on ozone air quality since 

exceedances of the ozone standard 

would not occur during the period in 

which riding was allowed.6

The 2003 amendment modified the 

OHRV regulations to change and clarify 

the start date of the red tag program. 

California’s authorization request stated 

that the regulatory change was needed 

to correct the ‘‘practical delay’’ in 

enforcement of the 1999 red tag program 

and to confirm that the riding season 

use restrictions would begin with the 

2003 model year.7 CARB sought a 

within-the-scope determination for this 

amendment.8

The 2006 amendments made three 

further changes to California’s OHRV 

regulations. First, California added 

evaporative emission standards for 

OHRVs that aligned with federal 

standards for 2008 and later model year 

vehicles. Second, the amendments 

reclassified sand cars, off-road utility 

vehicles and off-road sport vehicles as 

OHRVs, to align with the federal 

classification of these vehicles. Each of 

these vehicle categories had previously 

been regulated under other federallyauthorized California regulations as 

small off-road or large off-road sparkignition engines. The 2006 amendments 

set new emission standards for these 

three additional classes of vehicles that 

aligned with or exceeded the stringency 

of federal standards.9 Third, the list of 

riding areas and riding seasons was 

amended to add a few new attainment 

areas. 

CARB’s 2010 request regarding the 

2006 amendments sought (1) a full 

authorization for the evaporative 

emissions standard, (2) a within-thescope determination for the 

reclassification of sand cars, off-road 

sport vehicles and off-road utility 

vehicles, and (3) a declaration that the 

riding areas and riding seasons 

amendment does not require EPA 

authorization because the designation of 

seasonal and geographical use 

specifications is an operational control 

and is accordingly not preempted by 

section 209 of the Act.10 California also 

requested, in the alternative, that the 

riding season amendments be 

considered within the scope of EPA’s 

1996 authorization of CARB’s 1994 

OHRV regulations. Finally, CARB 

requested that EPA concurrently 

consider and render a decision on the 

pending authorization requests for the 

1999 and 2003 amendments. 

B. Clean Air Act Nonroad Engine and 

Vehicle Authorizations 

Section 209(e)(1) of the Act 

permanently preempts any state, or 

political subdivision thereof, from 

adopting or attempting to enforce any 

standard or other requirement relating 

to the control of emissions for certain 

new nonroad engines or vehicles.11 For 

all other nonroad engines (including 

‘‘non-new’’ engines), states generally are 

preempted from adopting and enforcing 

standards and other requirements 

relating to the control of emissions, 

except that section 209(e)(2)(A) of the 

Act requires EPA, after notice and 

opportunity for public hearing, to 

authorize California to adopt and 

enforce such regulations unless EPA 

makes one of three enumerated findings. 

Specifically, EPA must deny 

authorization if the Administrator finds 

that (1) California’s protectiveness 

determination (i.e., that California 

standards will be, in the aggregate, as 

protective of public health and welfare 

as applicable federal standards) is 

arbitrary and capricious, (2) California 

does not need such standards to meet 

compelling and extraordinary 

conditions, or (3) the California 

standards and accompanying 

enforcement procedures are not 

consistent with section 209 of the Act. 

On July 20, 1994, EPA promulgated a 

rule interpreting the three criteria set 

forth in section 209(e)(2)(A) that EPA 

must consider before granting any 

California authorization request for 

nonroad engine or vehicle emission 

standards.12 EPA revised these 

regulations in 1997.13 As stated in the 

preamble to the 1994 rule, EPA 

historically has interpreted the 

consistency inquiry under the third 

criterion, outlined above and set forth in 

section 209(e)(2)(A)(iii), to require, at 

minimum, that California standards and 

enforcement procedures be consistent 

with section 209(a), section 209(e)(1), 

and section 209(b)(1)(C) of the Act.14

In order to be consistent with section 

209(a), California’s nonroad standards 

and enforcement procedures must not 

apply to new motor vehicles or new 

motor vehicle engines. To be consistent 

with section 209(e)(1), California’s 

nonroad standards and enforcement 

procedures must not attempt to regulate 

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6586 Federal Register / Vol. 79, No. 23 / Tuesday, February 4, 2014 / Notices 

15See Engine Manufacturers Association v. EPA, 

88 F.3d 1075, 1087 (D.C. Cir. 1996): ‘‘. . . EPA was 

within the bounds of permissible construction in 

analogizing § 209(e) on nonroad sources to § 209(a) 

on motor vehicles.’’ 

16See supra note 12, at 36983. 

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. 

18See, e.g., Motor and Equip. Mfrs Assoc. v. EPA, 

627 F.2d 1095 (D.C. Cir. 1979) (‘‘MEMA I’’). 

19See ‘‘California State Motor Vehicle Pollution 

Control Standards; Amendments Within the Scope 

of Previous Waiver of Federal Preemption,’’ 46 FR 

36742 (July 15, 1981). 

20 MEMA I, supra note 19, at 1121. 

21 Id. at 1126. 

22 Id. at 1126. 

23 Id. at 1122. 

24 Id. 

25 Id. 

engine categories that are permanently 

preempted from state regulation. To 

determine consistency with section 

209(b)(1)(C), EPA typically reviews 

nonroad authorization requests under 

the same ‘‘consistency’’ criteria that are 

applied to motor vehicle waiver 

requests under section 209(b)(1)(C). 

That provision provides that the 

Administrator shall not grant California 

a motor vehicle waiver if she finds that 

California ‘‘standards and 

accompanying enforcement procedures 

are not consistent with section 202(a)’’ 

of the Act. Previous decisions granting 

waivers and authorizations have noted 

that state standards and enforcement 

procedures will be found to be 

inconsistent with section 202(a) if (1) 

there is inadequate lead time to permit 

the development of the necessary 

technology, giving appropriate 

consideration to the cost of compliance 

within that time, or (2) the federal and 

state testing procedures impose 

inconsistent certification requirements. 

In light of the similar language of 

sections 209(b) and 209(e)(2)(A), EPA 

has reviewed California’s requests for 

authorization of nonroad vehicle or 

engine standards under section 

209(e)(2)(A) using the same principles 

that it has historically applied in 

reviewing requests for waivers of 

preemption for new motor vehicle or 

new motor vehicle engine standards 

under section 209(b).15 These principles 

include, among other things, that EPA 

should limit its inquiry to the three 

specific authorization criteria identified 

in section 209(e)(2)(A),16 and that EPA 

should give substantial deference to the 

policy judgments California has made in 

adopting its regulations. In previous 

waiver decisions, EPA has stated that 

Congress intended EPA’s review of 

California’s decision-making be narrow. 

EPA has rejected arguments that are not 

specified in the statute as grounds for 

denying a waiver: 

The law makes it clear that the waiver 

requests cannot be denied unless the specific 

findings designated in the statute can 

properly be made. The issue of whether a 

proposed California requirement is likely to 

result in only marginal improvement in 

California air quality not commensurate with 

its costs or is otherwise an arguably unwise 

exercise of regulatory power is not legally 

pertinent to my decision under section 209, 

so long as the California requirement is 

consistent with section 202(a) and is more 

stringent than applicable Federal 

requirements in the sense that it may result 

in some further reduction in air pollution in 

California.17

This principle of narrow EPA review 

has been upheld by the U.S. Court of 

Appeals for the District of Columbia 

Circuit.18 Thus, EPA’s consideration of 

all the evidence submitted concerning 

an authorization decision is 

circumscribed by its relevance to those 

questions that may be considered under 

section 209(e)(2)(A). 

C. Within-the-Scope Determinations 

If California amends regulations that 

were previously authorized by EPA, 

California may ask EPA to determine 

that the amendments are within the 

scope of the earlier authorization. A 

within-the-scope determination for such 

amendments is permissible without a 

full authorization review if three 

conditions are met. First, the amended 

regulations must not undermine 

California’s previous determination that 

its standards, in the aggregate, are as 

protective of public health and welfare 

as applicable federal standards. Second, 

the amended regulations must not affect 

consistency with section 209 of the Act, 

following the same criteria discussed 

above in the context of full 

authorizations. Third, the amended 

regulations must not raise any ‘‘new 

issues’’ affecting EPA’s prior waivers.19

D. Burden and Standard of Proof 

As the U.S. Court of Appeals for the 

D.C. Circuit has made clear in MEMA I, 

opponents of a waiver request by 

California bear the burden of showing 

that the statutory criteria for a denial of 

the request have been met: 

[T]he language of the statute and its 

legislative history indicate that California’s 

regulations, and California’s determinations 

that they must comply with the statute, when 

presented to the Administrator are presumed 

to satisfy the waiver requirements and that 

the burden of proving otherwise is on 

whoever attacks them. California must 

present its regulations and findings at the 

hearing and thereafter the parties opposing 

the waiver request bear the burden of 

persuading the Administrator that the waiver 

request should be denied.20

The Administrator’s burden, on the 

other hand, is to make a reasonable 

evaluation of the information in the 

record in coming to the waiver decision. 

As the court in MEMA I stated: ‘‘here, 

too, if the Administrator ignores 

evidence demonstrating that the waiver 

should not be granted, or if he seeks to 

overcome that evidence with 

unsupported assumptions of his own, 

he runs the risk of having his waiver 

decision set aside as ‘arbitrary and 

capricious.’ ’’ 21 Therefore, the 

Administrator’s burden is to act 

‘‘reasonably.’’ 22

With regard to the standard of proof, 

the court in MEMA I explained that the 

Administrator’s role in a section 209 

proceeding is to: 

[. . .]consider all evidence that passes the 

threshold test of materiality and * * * 

thereafter assess such material evidence 

against a standard of proof to determine 

whether the parties favoring a denial of the 

waiver have shown that the factual 

circumstances exist in which Congress 

intended a denial of the waiver.23

In that decision, the court considered 

the standards of proof under section 209 

for the two findings related to granting 

a waiver for an ‘‘accompanying 

enforcement procedure.’’ Those findings 

involve: (1) Whether the enforcement 

procedures impact California’s prior 

protectiveness determination for the 

associated standards, and (2) whether 

the procedures are consistent with 

section 202(a). The principles set forth 

by the court, however, are similarly 

applicable to an EPA review of a request 

for a waiver of preemption for a 

standard. The court instructed that ‘‘the 

standard of proof must take account of 

the nature of the risk of error involved 

in any given decision, and it therefore 

varies with the finding involved. We 

need not decide how this standard 

operates in every waiver decision.’’ 24

With regard to the protectiveness 

finding, the court upheld the 

Administrator’s position that, to deny a 

waiver, there must be ‘‘clear and 

compelling evidence’’ to show that 

proposed enforcement procedures 

undermine the protectiveness of 

California’s standards.25 The court 

noted that this standard of proof also 

accords with the congressional intent to 

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Federal Register / Vol. 79, No. 23 / Tuesday, February 4, 2014 / Notices 6587 

26 Id. 

27See, e.g., ‘‘California State Motor Vehicle 

Pollution Control Standards; Waiver of Federal 

Preemption,’’ 40 FR 23102 (May 28, 1975), at 23103. 

28 ‘‘California State Nonroad Engine Pollution 

Control Standards; Off-Highway Recreational 

Vehicles and Engines; Request for Authorization; 

Opportunity for Public Hearing and Comment,’’ 78 

FR 724, (January 4, 2013). 

29Comment submitted by Richard W. Corey 

(CARB), July 23, 2013, EPA–HQ–OAR–2012–0742– 

0029. 

30 Id. at 2. 

31 2000 Request, supra note 2, at 4. 

32 Id. at 8–11. 

provide California with the broadest 

possible discretion in setting regulations 

it finds protective of the public health 

and welfare.26

With respect to the consistency 

finding, the court did not articulate a 

standard of proof applicable to all 

proceedings, but found that the 

opponents of the waiver were unable to 

meet their burden of proof even if the 

standard were a mere preponderance of 

the evidence. Although MEMA I did not 

explicitly consider the standards of 

proof under section 209 concerning a 

waiver request for ‘‘standards,’’ ’’ as 

compared to a waiver request for 

accompanying enforcement procedures, 

there is nothing in the opinion to 

suggest that the court’s analysis would 

not apply with equal force to such 

determinations. EPA’s past waiver 

decisions have consistently made clear 

that: ‘‘[E]ven in the two areas 

concededly reserved for Federal 

judgment by this legislation—the 

existence of ‘compelling and 

extraordinary’ conditions and whether 

the standards are technologically 

feasible—Congress intended that the 

standards of EPA review of the State 

decision to be a narrow one.’’ 27

E. EPA’s Administrative Process in 

Consideration of California’s OHRV 

Amendment Requests for Authorization 

On January 4, 2013, EPA published a 

Federal Register notice announcing its 

receipt of California’s authorization 

request. In that notice, EPA invited 

public comment on each of the 2006 

amendments, as well as on the prior 

authorization requests for amendments 

California adopted in 1999 and 2003.28

The request for comments specifically 

referred, but was not limited, to the 

following issues. 

First, EPA requested comment on the 

1999 amendments, as follows: (1) 

Should California’s 1999 OHRV 

amendments, specifically the provision 

for certification of OHRVs that do not 

meet the emissions criteria (the red tag 

amendment) and the removal of the 

competition exemption, be considered 

under the within-the-scope analysis, or 

should they be considered under the 

full authorization criteria? (2) If those 

amendments should be considered as a 

within-the-scope request, do they meet 

the criteria for EPA to grant a withinthe-scope confirmation? (3) 

Alternatively, if the red tag amendment 

and removal of the competition 

exemption should not be considered 

under the within-the-scope analysis, or 

in the event that EPA determines they 

are not within the scope of the previous 

authorization, do they meet the criteria 

for making a full authorization 

determination? (4) Does the removal of 

the 600 lb weight limitation in the 

definition of ATV meet the criteria for 

making a full authorization 

determination? 

Second, regarding the 2003 

amendment, EPA requested comment 

on the following questions: (1) Whether 

the amendment limiting the red tag 

program to model years 2003 and later 

should be evaluated under the withinthe-scope criteria, and if so, whether it 

meets the within-the-scope criteria for 

authorization? (2) To the extent that the 

2003 amendment should be treated as a 

full authorization request, does the 

amendment meet the criteria for a full 

authorization? 

Third, regarding the 2006 

amendments, we requested comment on 

the following: (1) Does the amendment 

setting evaporative emissions standards 

for OHRVs meet the criteria for a full 

authorization? (2) Does the amendment 

reclassifying sand cars, off-road sport 

vehicles and off-road utility vehicles as 

OHRVs fall within the scope of the 

original (1996) authorization? (3) Does 

the amendment altering the list of riding 

areas and riding seasons require federal 

authorization review, or is it not 

federally preempted, pursuant to CAA 

section 209(d)? (4) If it is preempted and 

therefore requires federal authorization, 

does the amended list of riding areas 

and seasons fall within the scope of the 

original (1996) authorization? 

In response to these requests for 

comment, EPA received an additional 

submission from CARB.29 EPA received 

no written comments from parties other 

than CARB and received no requests for 

a public hearing. Consequently, EPA did 

not hold a public hearing. 

CARB’s July 23, 2013 submission 

provided additional and updated 

information in support of its 

protectiveness determination for the red 

tag program amendment, contained in 

the 1999 amendment package. CARB 

compared its exemption for red-tagged 

vehicles to an analogous feature in the 

federal regulations, which exempts 

competition model OHRVs from federal 

emissions standards. After a detailed 

analysis comparing the projected 

emissions effects of the federally 

exempted competition model vehicles 

to California’s red tagged vehicles, 

CARB concluded that its OHRV program 

‘‘remains as protective in the aggregate 

as the federal program.’’ 30

II. Discussion 

A. California’s 1999 Amendments 

The 1999 amendment package 

contains three amendments, each briefly 

described above: the removal of the 

competition exemption, the addition of 

the red tag program, and the addition of 

vehicles over 600 lb to the ATV vehicle 

category. 

1. Removal of the Competition 

Exemption and Addition of the Red Tag 

Program 

California’s request for authorization 

of the amendments (1) removing the 

exemption from emission standard 

controls for competition models, and (2) 

introducing the red tag certification 

program and regional/seasonal 

restrictions for red-tagged vehicles are 

interrelated, and therefore will be 

treated together in this discussion. As 

explained by CARB in its 2000 

authorization request, ‘‘[s]ince all offhighway vehicles must now be certified 

as either emissions-compliant with no 

use restrictions, or non-emissionscompliant with use restrictions, the 

superfluous competition vehicle 

definition was deleted.’’ 31 CARB 

asserted that the competition vehicle 

designation and associated restrictions 

on the use of such vehicles were made 

superfluous because such vehicles 

would be subsumed in the nonemissions-compliant red tagged category 

of vehicles, and their use would be 

limited to the newly designated riding 

areas and seasons. 

a. Within-the-Scope Analysis 

California requested that the 

amendments establishing the red tag 

program and removing the competition 

exemption both be treated as within the 

scope of the original EPA authorization 

of the OHRV program. California 

asserted that the amendments met all 

three within-the-scope criteria, i.e. that 

the amendments: (1) Do not undermine 

the original protectiveness 

determination underlying California’s 

OHRV regulations, (2) do not affect the 

consistency of the OHRV regulations 

with section 202(a), and (3) do not raise 

any new issues affecting the prior 

authorization.32

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33 Id. at 10. 

34See 40 CFR Part 1051, ‘‘Control of Emissions 

From Recreational Engines and Vehicles’’. 

35EPA cannot find that these amendments are 

within the scope of the previous authorization 

because they failed to satisfy the ‘‘new issue’’ 

criterion. We must therefore proceed with a full 

authorization analysis; there is no need to analyze 

whether the other two prongs of the within-thescope analysis are met. 

36This does not mean that the original 

protectiveness determination is arbitrary or 

capricious. See ‘‘California State Motor Vehicle 

Pollution Control Standards; Notice of Decision 

granting a Waiver of Clean Air Act Preemption for 

California’s Advanced Clean Car Program and a 

Within-the-scope Confirmation for California’s Zero 

Emission Vehicle Amendments for 2017 and Earlier 

Model Years,’’ 78 FR 2112 (January 9, 2013), at 

2124. 

37See supra note 29. 

38 Id. at 4–5. 

39See California State Motor Vehicle Pollution 

Control Standards; Notice of Decision Granting a 

Waiver of Clean Air Act Preemption for California’s 

2009 and Subsequent Model Year Greenhouse Gas 

Emission Standards for New Motor Vehicles,’’ 74 

FR 32744 (July 8, 2009), at 32761; see also 

‘‘California State Motor Vehicle Pollution Control 

Standards; Waiver of Federal Preemption Notice of 

Decision,’’ 49 FR 18887 (May 3, 1984), at 18889– 

188890. 

40 ‘‘State of California Air Resources Board, 

Resolution 98–66,’’ December 10, 1998, EPA–HQ– 

OAR–2012–0742–0007. 

Beginning with the third criterion, 

CARB asserted that ‘‘[t]he regional/

seasonal approach, while establishing a 

new regulatory section, does not force 

any change in technology to warrant 

revisiting conclusions reached in 

granting the existing authorization.’’ 33

CARB further stated that it was not 

aware of any new issues presented by 

the red tag program or the removal of 

the competition exemption. EPA 

appreciates that the regional/seasonal 

approach does not change the numeric 

emissions standards or test procedures 

approved in the original authorization 

of California’s OHRV regulations. 

However, the shift from exempting one 

class of vehicles (competition models) 

from those standards to certifying and 

allowing a potentially different class of 

vehicles (non-emissions-compliant 

vehicles) to operate regionally/

seasonally is a major change in the 

application and meaning of those 

standards, the practical effects of which 

could have a significant impact on the 

aggregate emissions of OHRVs in 

California. Furthermore, while at the 

time of the request there were no 

comparable federal regulations for 

OHRVs against which to compare 

California’s regulations, there are such 

federal regulations now.34 The 

analogous federal program regulating 

OHRVs stands in stark contrast to 

California’s program, insofar as the 

federal program exempts competitiononly models from regulation (allowing 

their full and unrestricted use) and does 

not allow non-competition, red-tagged 

vehicles to be certified at all. Indeed, 

California’s approach of certifying redtagged vehicles to operate in limited 

areas and/or during limited seasons is 

without parallel in the field of federal 

mobile source emissions regulations 

across all classes of vehicles. 

EPA finds that the regional/seasonal 

program and removal of the competition 

exemption fundamentally change 

California’s previously authorized 

OHRV program. First, they present a 

shift in the application and potential 

practical effects of the previously 

authorized emission standards. They 

also represent a significant departure 

from the standard regulatory structure 

used in the parallel federal OHRV 

emissions regulations. EPA 

consequently views these changes, 

collectively, as a new issue that 

precludes a within-the-scope 

determination. Since the ‘‘new issue’’ 

prong of the within-the-scope criteria is 

not met, EPA must treat these 

amendments as full authorization 

requests, and will analyze them as 

such.35

b. Full Authorization Analysis 

The first prong of the full 

authorization analysis is whether 

California’s protectiveness 

determination (that the standards 

including the red tag program are, in the 

aggregate, at least as protective of public 

health and welfare as otherwise 

applicable federal standards) is arbitrary 

or capricious. California’s original 

protectiveness determination for these 

amendments was made at a time when 

no comparable federal standards 

existed; therefore CARB’s determination 

that its standards were, in the aggregate, 

at least as protective as the (nonexistent) federal standards was 

relatively straightforward. California’s 

subsequent requests for authorization 

(2004 and 2010) generally referred back 

to the original analysis and did not 

substantively update the protectiveness 

determination. Regardless of whether 

CARB’s original protectiveness 

determination was or was not arbitrary 

or capricious at the time it was made, 

EPA must now evaluate California’s 

determination in light of the current 

federal standards, not those in place at 

the time California’s regulations were 

promulgated.36 For this reason, CARB 

submitted additional information in 

response to our request for public 

comments to update its protectiveness 

determination for the red tag program, 

considering current federal OHRV 

standards.37

In its comments dated July 23, 2013, 

CARB presented a detailed analysis and 

argument that the inclusion of the red 

tag program renders its standards, in the 

aggregate, at least as protective as the 

current federal standards. CARB’s 

analysis was based on an ‘‘apples-toapples’’ comparison of whether and 

how the federal and California 

regulations would allow the sale of 

OHRVs, by referencing the list of 

competition models exempted by 

federal standards to the list of redtagged vehicle models authorized for 

restricted use in California. CARB 

concluded that ‘‘the provisions for 

allowing noncompliant vehicle 

certifications and their accompanying 

usage restrictions provide a level of 

protection in California that remains, at 

the minimum, no worse than afforded 

under federal provisions as 

demonstrated by the established 

correlation between equally configured 

federally exempted vehicles and 

California noncompliant vehicles.’’ 38

We received no contrary evidence or 

arguments to refute California’s original 

or supplemental protectiveness 

determinations. In light of CARB’s 

detailed analysis and reasoned 

conclusions, and the lack of any 

evidence to the contrary, we cannot find 

that California’s protectiveness 

determination regarding the red tag 

program is arbitrary or capricious. 

Second, the Section 209(e)(2)(ii) 

inquiry into whether California needs 

such standards to meet compelling and 

extraordinary conditions in the state is 

restricted to a consideration of whether 

California needs its own emission 

standards program to meet compelling 

and extraordinary conditions, not 

whether any particular standards are 

necessary to meet such conditions.39 In 

resolving to amend its OHRV 

regulations with the red tag program, 

California reaffirmed its longstanding 

determination that its emission 

standards program is necessary to meet 

the state’s compelling and extraordinary 

conditions.40 We received no contrary 

evidence or comments challenging 

California’s determination that its 

emission standards program is 

necessary to meet these conditions. 

Therefore, there is no evidence that the 

state’s emissions standards program is 

not still necessary to address the 

‘‘compelling and extraordinary 

conditions’’ underlying the state’s air 

pollution problems. 

Third and finally, we evaluate the red 

tag program for consistency with section 

209 of the Act, which, as discussed 

above, requires evaluation of 

consistency with sections 209(a), 

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41CAA section 216(2), 42 U.S.C. § 7550(a). 

42See Decision Document supporting 61 FR 

69093, December 31, 1996, Docket A–95–17, at 30. 

43 13 CA ADC § 2411(a)(13). 

44 2000 Request, supra note 2, at 5. 

45 40 CFR 1051.1(a)(3) 

46 2004 Request, supra note 2, at 3. 

47 13 CA ADC § 2411(a)(1). 

209(e)(1), and 209(b)(1)(C). First, to be 

consistent with section 209(a), the 

amendments must not apply to new 

motor vehicles or motor vehicle engines. 

The Act defines ‘‘motor vehicle’’ as 

‘‘any self-propelled vehicle designed for 

transporting persons or property on a 

street or highway.’’ 41 As already 

determined in EPA’s authorization of 

the original OHRV regulations, OHRVs 

and OHRV engines (as defined by 

California) are not motor vehicles or 

motor vehicle engines.42 The definition 

of OHRV has not changed since that 

time. While OHRVs are not explicitly 

defined in California’s regulations, the 

OHRV engines subject to California’s 

OHRV regulations and the red tag 

amendments at issue here are defined as 

engines ‘‘[. . .] designed for powering 

off-road recreational vehicles . . .’’ 43

They are not designed for on-highway 

use and we received no evidence that 

any OHRVs or OHRV engines are 

designed as motor vehicles or motor 

vehicle engines. We therefore find that 

the vehicles and engines subject to the 

red tag program are not motor vehicles 

and that the regulations therefore are 

consistent with section 209(a) of the 

Act. Second, to be consistent with 

section 209(e)(1) of the Act, the 

regulations must not attempt to regulate 

those vehicles and engines explicitly 

preempted from state regulation by 

section 209(e)(1), including farm and 

construction equipment and engines, 

vehicles and engines below 175 

horsepower, and new locomotives or 

locomotive engines. None of the 

vehicles or engines covered by 

California’s OHRV regulations fall in 

these categories and we received no 

evidence to the contrary. We therefore 

find the red tag amendments are 

consistent with section 209(e)(1). Third 

and finally, to be consistent with section 

209(b)(1)(c), there must be adequate lead 

time to permit technological 

development for compliance with the 

amendment, and the state test 

procedures must not be made 

inconsistent with federal test 

procedures. In this case, there is no 

evidence that the red tag program would 

require any technological development, 

or that it would affect the consistency of 

federal and state test procedures. We 

therefore find no evidence that the 

standards and accompanying 

enforcement procedures of the red tag 

program and the removal of the 

competition exemption are inconsistent 

with section 209 of the Act. 

After a review of the information 

submitted by CARB, and the record for 

this authorization request, EPA finds 

that no basis exists to demonstrate that 

authorization for California’s 

amendments establishing the red tag 

program and removing the competition 

exemption from its OHRV regulations 

should be denied based on any of the 

statutory criteria of section 209(e)(2)(A). 

For this reason, EPA finds that an 

authorization for such amendments 

should be granted. 

2. Addition of ATVs Over 600 lbs 

California requested a full 

authorization for the addition of 

vehicles over 600 lbs to the existing 

class of ATVs covered by the OHRV 

regulations. California asserted that 

while most ATVs fall under the 600 lb 

mark, a small number of vehicles used 

for work applications are greater than 

600 lb and do not warrant separate 

treatment under an additional 

regulatory scheme.44 CARB further 

clarified that ATVs used in farm or 

construction applications are not to be 

included in the definition, as they are 

permanently preempted by section 

209(e)(1) of the CAA and its 

implementing regulations. 

As noted above, when CARB 

requested authorization in 2000 for the 

1999 amendment expanding the ATV 

category to include vehicles over 600 lb, 

no comparable federal standards existed 

against which to assess the 

protectiveness of the California 

regulations. However, California’s 

request must be judged in light of the 

current comparable federal regulations. 

Emissions from ATVs are federally 

regulated in 40 CFR Part 1051 as part of 

the nonroad emission standards 

program.45 There are no weight limits 

on the class of ATVs regulated under 

Part 1051. The federal standards in 40 

CFR 1051.107 therefore apply to the 

expanded class of vehicles described in 

California’s revised definition of ATVs 

and are the ‘‘comparable standards’’ 

against which California’s request for 

authorization for its expanded class of 

vehicles should be judged. 

First, regarding the protectiveness of 

California’s regulation of ATVs greater 

than 600 lbs, when CARB submitted its 

petition for authorization of additional 

amendments in 2004, it re-evaluated its 

OHRV standards (including the 

standards applicable to vehicles greater 

than 600 lb) in light of the newly 

promulgated federal Part 1051 

standards. Citing EPA’s own analysis of 

the comparative emission standards for 

ATVs detailed in the preamble to the 

2002 federal rulemaking, CARB found 

that the California and federal standards 

were roughly equivalent with the main 

difference being the federal inclusion of 

the competition exemption versus 

California’s red tag program.46 Taken as 

a whole, CARB concluded that 

California’s program for ATVs, 

including those over 600 lb, remained at 

least as protective as the federal 

program. We received no comments or 

evidence contradicting this 

determination, and therefore we cannot 

find that California’s protectiveness 

determination is arbitrary or capricious. 

Second, and as noted above with 

regard to the red tag amendments that 

CARB adopted concurrently, California 

maintained that its mobile source 

pollution program is still necessary to 

meet compelling and extraordinary 

conditions in the state. We received no 

contrary evidence or comments 

challenging this assertion. We therefore 

find that there is no evidence that the 

state’s emission standards program is 

not still necessary to address the 

‘‘compelling and extraordinary 

conditions’’ underlying the state’s air 

pollution problems. 

Third and finally, the removal of the 

600 lb weight limit must be found 

consistent with section 209 of the Act if 

it: (1) Does not regulate new motor 

vehicles or motor vehicle engines per 

section 209(a) or any of the vehicles or 

engines specified in section 209(e)(1), 

(2) is not technologically infeasible for 

manufacturers to meet the standards 

within the lead time provided, or (3) 

does not establish test procedures 

inconsistent with federal test 

procedures for the same vehicle class, 

per section 209(b)(1)(C). First, ATVs are 

defined as being designed for offhighway use,47 so the regulation does 

not seek to regulate ‘‘motor vehicles’’ 

and is consistent with section 209(a). 

Second, ATVs are not among the classes 

of vehicles permanently preempted by 

federal regulations and so this 

amendment is consistent with section 

209(e)(1). Third and finally, there is no 

evidence of inadequate lead time to 

permit technological development for 

compliance with the amendment, nor 

are the CARB test procedures regarding 

ATVs made inconsistent with federal 

test procedures by this amendment. We 

therefore find no evidence that the 

amendment is inconsistent with section 

209 of the Act. 

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48 ‘‘State of California Air Resources Board, Initial 

Statement of Reasons,’’ June 6, 2003, EPA–HQ– 

OAR–2012–0742–0010, at 4. 

49 Id. 

50 2004 Request, supra note 2, at 2. 51 Id. 

52 40 CFR 1051.110. 

53 2010 Request, supra note 2, at 7. 

54 Id. at 8. 

55For references to EPA authorizations of these 

standards under Large Spark Ignition (LSI) and 

Small Off-Road Engines (SORE) regulations, see 

2010 Request, supra note 2, at fn 9, fn 10. 

Having met the three criteria for full 

authorization, the amendment to add 

vehicles over 600 lb gross weight to 

California’s OHRV emission standards 

must be authorized. 

B. California’s 2003 Amendment 

The sole 2003 amendment presented 

for authorization is a change in the 

effective date of the riding season use 

restrictions for red-tagged vehicles from 

1999 (the date of the original 

amendments) to 2003. California 

requested that EPA evaluate this 

amendment as within the scope of the 

earlier authorization. 

Following the passage of the 1999 

amendments, California’s Department of 

Motor Vehicles (DMV) and Department 

of Parks and Recreation (DPR) were 

unable to properly enforce the new 

regulations as written, due to a lack of 

institutional resources and problems 

with DMV’s registration system. This 

resulted in inconsistencies in the 

labeling and certification of some 

OHRVs. For example, some nonemissions-compliant OHRVs, which 

should have been red-tagged, were 

registered with green tags, and some 

emissions-compliant OHRVs, which 

should have been green-tagged, were 

registered with red stickers.48 As of 

2003, however, the implementing 

agencies, DMV and DPR, committed to 

automate the OHRV registration system 

and enforce the riding season 

limitations. The amendment to change 

the riding season use restrictions to 

apply only to 2003 MY and later 

vehicles was intended to ‘‘simply reflect 

the delay in riding season enforcement 

that occurred in the field by the land 

management agencies.’’ 49

California asserted that the 

amendment met all three within-thescope criteria, i.e. that it: (1) Does not 

undermine the original protectiveness 

determination underlying California’s 

OHRV regulations, (2) does not affect 

the consistency of the OHRV regulations 

with section 202(a), and (3) does not 

raise any new issues affecting the prior 

authorization.50 We received no adverse 

comments or evidence suggesting a 

within-the-scope analysis is 

inappropriate, or that the 2003 

amendment fails to meet any of the 

three criteria for within-the-scope 

confirmation. 

First, California asserted that the 

amendment to the effective start date of 

the red tag program clearly did not 

undermine the original protectiveness 

determination underlying California’s 

OHRV regulations because it does not 

change any of the substantive criteria or 

parameters of that program, but rather is 

an administrative date change. 

Furthermore, at the time the request was 

made (2004), the federal standards were 

not yet effective until MY 2006, so 

California’s program remained without a 

federal parallel even during the period 

between the intended start date and the 

amended start date.51 We therefore 

cannot find that the delay in the 

effective date of the red tag program 

undermines the protectiveness 

determination made with regard to the 

original red tag program. 

Second, this amendment did not 

attempt to regulate new motor vehicles 

or motor vehicle engines and so is 

consistent with section 209(a). It 

likewise did not attempt to regulate any 

of the permanently preempted engines 

or vehicles, and so is consistent with 

section 209(e)(1). Finally, it did not 

cause any technological feasibility 

issues for manufacturers or cause 

inconsistency between state and federal 

test procedures, per section 209(b)(1)(C). 

The difficulties in implementing the red 

tag program as written in 1999 were not 

due to technological difficulties for 

manufacturers but rather to the state’s 

administrative difficulties. There were 

therefore no lead-time or technological 

problems created by the delayed start 

date amendment. In fact, to the extent 

that there were problems at all relevant 

to the red tag program, these were 

administrative problems that were 

relieved by the delayed start date. The 

delayed start date had no bearing on the 

consistency between the California and 

federal certification requirements. We 

therefore find no evidence that the 

delayed start date amendment is 

inconsistent with section 209 of the Act. 

Third, California stated that the 

delayed start date raised no new issues, 

and we have received no evidence to the 

contrary. The change in date was a 

purely ministerial change, especially 

considering that at the time the 

amendment was promulgated, the 

comparable federal standards had not 

yet come into effect. We therefore do not 

find any new issues raised by the 

delayed start date amendment. 

Having received no contrary evidence 

or comments regarding this amendment, 

we find that California has met the three 

criteria for a within-the-scope 

authorization approval. Therefore, the 

amendment delaying the start date for 

California’s red tag program must be 

confirmed as within the scope of the 

previous authorization of California’s 

OHRV regulations. 

C. California’s 2006 Amendments 

1. Evaporative Emission Standards 

In 2006, California added evaporative 

emission standards for 2008 and later 

model year OHRVs to align with federal 

evaporative emission standards that also 

began with the 2008 model year, and in 

2010 requested a full authorization for 

the inclusion of these standards. The 

California standards (1.5 g/m2/day for 

fuel tank permeation and 15.0 g/m2/day 

for fuel hose permeation) were exactly 

the same as the federal standards,52 with 

identical test procedures. Both the 

California and federal standards remain 

the same as of this date. We received no 

evidence or comments contradicting or 

challenging authorization of this 

amendment. 

First, CARB stated that these 

standards are at least as protective of 

public health and welfare, in the 

aggregate, as the federal standards, 

because they are identical with the 

federal standards.53 Considering the 

equivalence of the federal and California 

evaporative emission standards and 

having received no evidence to the 

contrary, we cannot find that 

California’s protectiveness 

determination regarding the OHRV 

evaporative emission standards is 

arbitrary or capricious. 

Second, California reiterated its 

longstanding position that compelling 

and extraordinary conditions in the 

state still need to be addressed through 

separate California nonroad engine and 

vehicle regulations.54 We find no 

evidence to contradict California’s 

determination that the new evaporative 

standards are part of an overall 

approach to reducing the state’s air 

pollution problems, and that the state 

still needs its own program to address 

the ‘‘compelling and extraordinary 

conditions’’ that continue to exist in 

California. 

Third, California stated that the 

evaporative emission standards are 

consistent with CAA section 209 

because they apply to classes of vehicles 

that EPA already evaluated and found to 

be consistent in previous 

authorizations.55 In those decisions, 

EPA found that these vehicle categories 

are not ‘‘new motor vehicles’’ 

preempted under CAA section 209(a) 

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56See 40 CFR 1051.1(a)(4). 

57See supra note 55. 

58See 40 CFR 1051.107(a)(1). 

59 2010 Request, supra note 2, at 8. 

60See supra note 55. 

61 2010 Request, supra note 2, at 9. 

62 Id. 

63See Id. California also requested that in the 

alternative, the riding areas/seasons amendment be 

considered within the scope of the 1996 

authorization. 

nor are they engines specifically 

preempted by CAA section 209(e)(1). 

California stated that the amendment is 

consistent with section 209(b)(1)(C) 

because the evaporative standards are 

identical to the federal standards that 

EPA already found to provide adequate 

lead time for technological 

development, and because 

manufacturers could use the same test 

vehicle to demonstrate emissions 

compliance with both the federal and 

California standards. Having received 

no evidence to contradict these 

statements, we do not find that the 

evaporative emissions standards are 

inconsistent with section 209 of the Act. 

Having found the request meets the 

three criteria for a full authorization, 

EPA must authorize the amendment of 

California’s evaporative emissions 

standard. 

2. Reclassification of Sand Cars, OffRoad Utility Vehicles and Off-Road 

Sport Vehicles as OHRVs 

The 2006 amendments reclassified 

sand cars, off-road utility vehicles and 

off-road sport vehicles (also known as 

‘‘Class II and Class III’’ ATV-like 

vehicles) as OHRVs. The reclassification 

aligned California’s regulations with the 

federal classification of these vehicle 

categories.56 Each of these vehicle 

categories had previously been 

regulated under other federallyauthorized California regulations as 

small off-road or large off-road sparkignition engines.57 The amendments 

also harmonized the carbon monoxide 

(CO) emission standard with the federal 

CO ATV emission standard (400 g/kWhr) and maintained the existing CO + 

nitrogen oxides (NOX) emission 

standard (12 g/kW-hr), which is more 

strict than the parallel federal standard 

(13.4 g/kW).58 California requested a 

within-the-scope determination for 

these amendments. EPA received no 

adverse comments or evidence 

contradicting California’s request to 

consider these amendments as within 

the scope of the previous authorization. 

First, California found that the 

reclassification amendment does not 

undermine the original protectiveness 

determination regarding its OHRV 

regulations because it further aligns 

them with the federal classification 

system for OHRVs. California asserted 

that the amended regulation therefore 

remains at least as protective as the 

federal standards.59 Also, as noted 

above, the emission standards for ATVs 

in California are clearly at least as 

protective as the federal standards, 

mirroring the federal CO standard and 

exceeding the stringency of the federal 

CO + NOX standard. Based on the record 

before us and in the absence of any 

evidence to the contrary, we cannot find 

that California’s protectiveness 

determination regarding the 

reclassification of these vehicles as 

OHRVs is arbitrary or capricious. 

Second, California found that the 

amendment does not affect consistency 

with section 209 of the Act. The vehicle 

categories to which this amendment 

applies have already been deemed 

consistent with sections 209(a) and 

209(e)(1) by EPA when they were 

considered as part of the large spark 

ignition and small off-road engine 

regulation authorizations.60 Further, 

California found that application of the 

OHRV standards to the new vehicle 

classes is consistent with section 

209(b)(1)(C) because manufacturers had 

already been complying with the 

standards for more than two years at the 

time of California’s request. The exhaust 

standards were phased in by model year 

2007 and evaporative standards were 

phased in by model year 2008. Also, the 

test procedures authorized by California 

are identical to those adopted federally, 

so a single test vehicle could be used for 

both state and federal testing.61 We 

conclude that the amendment has no 

bearing on the consistency between the 

California and federal certification 

requirements, and no evidence 

contradicting California’s determination 

that the amendment is consistent with 

section 209(b)(1)(C). We therefore do not 

find the amendment is inconsistent with 

section 209 of the Act. 

Third, California was unaware of any 

new issues that would arise from the 

inclusion of these three new classes of 

vehicles under their OHRV regulations 

and standards.62 EPA similarly finds no 

new issues arising from the amendment. 

Having received no evidence or 

comments to the contrary, we find that 

California’s 2006 amendment to 

reclassify off-road sport vehicles, offroad utility vehicles, and sand cars as 

OHRVs meets the three criteria for a 

within-the-scope determination. We 

therefore find that this amendment is 

within the scope of the previous 

authorization of the OHRV program. 

3. Amendment of Riding Seasons and 

Areas List 

Third, the list of riding areas and 

riding seasons was amended. California 

asserted that this amendment does not 

require EPA authorization because it 

pertains to an operational control that 

cannot be federally preempted, pursuant 

to section 209(d) of the Act.63 Under 

section 209(d), nothing in Subchapter II, 

Part A of the Act restricts states’ ability 

to ‘‘control, regulate, or restrict the use, 

operation or movement of registered or 

licensed motor vehicles.’’ California 

therefore requested that EPA confirm 

that the riding season restriction 

amendment was and is enforceable 

without further action by the EPA 

Administrator. Amendments to the 

times and places where certain vehicles 

are allowed to operate is the very 

essence of an ‘‘operational control.’’ 

EPA received no comments challenging 

or denying California’s proposed 

treatment. Therefore, EPA confirms that 

the amended list of riding seasons and 

areas does not require authorization by 

the Administrator because it is not 

federally preempted by the Act. 

III. Decision 

The Administrator has delegated the 

authority to grant California section 

209(e) authorizations to the Assistant 

Administrator for Air and Radiation. 

After evaluating CARB’s amendments to 

its OHRV regulations described above 

and CARB’s submissions for EPA 

review, EPA is taking the following 

actions. 

First, EPA is granting an authorization 

for both the red tag certification program 

and the removal of the exemption for 

competition models from California’s 

OHRV regulations. Second, EPA is 

granting an authorization for the 

removal of the 600 lb weight limit from 

the definition of ATV in California’s 

OHRV regulations. Third, EPA confirms 

that California’s 2003 amendment to 

delay the start date of the red tag 

program is within the scope of the 

previous authorization. Fourth, EPA is 

granting an authorization for the 

addition of evaporative emission 

standards to California’s OHRV 

regulations, starting with the 2008 

model year. Fifth, EPA confirms that 

California’s 2006 amendment to 

reclassify sand cars, off-road utility 

vehicles, and off-road sports vehicles as 

OHRVs is within the scope of the 

previous authorization. Finally, EPA 

confirms that amendments to the list of 

riding areas and seasons for California’s 

red-tagged OHRVs are not preempted by 

the Act and do not require EPA 

authorization. 

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My decision will affect not only 

persons in California, but also 

manufacturers outside the state who 

must comply with California’s 

requirements in order to produce 

vehicles for sale in California. For this 

reason, I determine and find that this is 

a final action of national applicability, 

and also a final action of nationwide 

scope and effect, for purposes of section 

307(b)(1) of the Act. Pursuant to section 

307(b)(1) of the Act, judicial review of 

this final action may be sought only in 

the United States Court of Appeals for 

the District of Columbia Circuit. 

Petitions for review must be filed by 

April 7, 2014. Judicial review of this 

final action may not be obtained in 

subsequent enforcement proceedings, 

pursuant to section 307(b)(2) of the Act. 

IV. Statutory and Executive Order 

Reviews 

As with past authorization and waiver 

decisions, this action is not a rule as 

defined by Executive Order 12866. 

Therefore, it is exempt from review by 

the Office of Management and Budget as 

required for rules and regulations by 

Executive Order 12866. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Further, the Congressional Review 

Act, 5 U.S.C. 801, et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, does 

not apply because this action is not a 

rule for purposes of 5 U.S.C. 804(3). 

Dated: January 27, 2014. 

Janet G. McCabe, 

Acting Assistant Administrator, Office of Air 

and Radiation. 

[FR Doc. 2014–02297 Filed 2–3–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–NN06–15–OAR] 

Notification of a Public Webinar for the 

Clean Air Act Advisory Committee 

(CAAAC) 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice of meeting. 

SUMMARY: The Environmental Protection 

Agency (EPA) announces a public 

webinar for the Clean Air Act Advisory 

Committee (CAAAC) on EPA’s 

greenhouse gas standards (i.e., the Clean 

Air Act 111(d) standards). The EPA 

established the CAAAC on November 

19, 1990, to provide independent advice 

and counsel to EPA on policy issues 

associated with implementation of the 

Clean Air Act of 1990. The Committee 

advises on economic, environmental, 

technical, scientific and enforcement 

policy issues. 

DATES & ADDRESSES: Pursuant to 5 

U.S.C. App. 2 Section 10(a) (2), notice 

is hereby given that the CAAAC will 

hold a webinar on EPA’s greenhouse gas 

standards (i.e., the Clean Air Act 111(d) 

standards) on February 20, 2014, from 

2:00 p.m. to 4:00 p.m. (Eastern Time). 

Inspection of Committee Documents: 

Documents prepared for the meeting 

will be publicly available on the 

CAAAC Web site at http://www.epa.gov/ 

oar/caaac/ prior to the meeting. 

Thereafter, these documents will be 

available by contacting the Office of Air 

and Radiation Docket and requesting 

information under docket EPA–HQ– 

OAR–2004–0075. The Docket office can 

be reached by email at: a-and-r-Docket@

epa.gov or FAX: 202–566–9744. 

FOR FURTHER INFORMATION CONTACT: Any 

member of the public who wants further 

information concerning the CAAAC’s 

public webinar may contact Jeneva 

Craig, Designated Federal Officer (DFO), 

Office of Air and Radiation, U.S. EPA by 

telephone at (202) 564–1674 or by email 

at craig.jeneva@epa.gov. Additional 

information on these meetings can be 

found on the CAAAC Web site: http:// 

www.epa.gov/oar/caaac/. 

For information on access or services 

for individuals with disabilities, please 

contact Ms. Jeneva Craig at (202) 564– 

1674 or craig.jeneva@epa.gov, 

preferably at least 10 days prior to the 

meeting to give EPA as much time as 

possible to process your request. 

Dated: January 28, 2014. 

Jeneva Craig, 

Designated Federal Officer, Clean Air Act 

Advisory Committee, Office of Air and 

Radiation. 

[FR Doc. 2014–02301 Filed 2–3–14; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL TRADE COMMISSION 

Agency Information Collection 

Activities: Proposed Collection; 

Comment Request; Generic Clearance 

for the Collection of Qualitative 

Feedback on Agency Service Delivery 

AGENCY: Division of Consumer and 

Business Education, Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’). 

ACTION: Notice. 

SUMMARY: The information collection 

requirements described below will be 

submitted to the Office of Management 

and Budget (‘‘OMB’’) for review, as 

required by the Paperwork Reduction 

Act (‘‘PRA’’). The FTC is seeking public 

comments on its proposal to renew its 

PRA clearance to participate in the OMB 

program ‘‘Generic Clearance for the 

Collection of Qualitative Feedback on 

Agency Service Delivery.’’ This program 

was created to facilitate federal 

agencies’ efforts to streamline the 

process to seek public feedback on 

service delivery. Current FTC clearance 

under this program expires May 31, 

2014. 

DATES: Comments must be submitted by 

April 7, 2014. 

ADDRESSES: Interested parties may file a 

comment online or on paper, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘FTC Generic Clearance 

ICR, Project No. P035201’’ on your 

comment, and file your comment online 

at https://ftcpublic.commentworks.com/

ftc/genericclearance by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, mail or deliver your comment to 

the following address: Federal Trade 

Commission, Office of the Secretary, 

Room H–113 (Annex J), 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

FOR FURTHER INFORMATION CONTACT: To 

request additional information, please 

contact Nicole Vincent Fleming at 202– 

326–2372. 

SUPPLEMENTARY INFORMATION: Executive 

Order 12862 (1993) (‘‘Setting Customer 

Service Standards’’) directs all Federal 

executive departments and agencies and 

requests independent Federal agencies’ 

to provide service to ‘‘customers’’ that 

matches or exceeds the best service 

available in the private sector. See also 

Executive Order 13571 (2011) 

(‘‘Streamlining Service Delivery and 

Improving Customer Service’’). For 

purposes of these orders, ‘‘customer’’ 

means an individual who or entity that 

is directly served by a department or 

agency. 

To the above ends, and to work 

continuously to ensure that the FTC’s 

programs are effective and meet our 

customers’ needs, we seek renewed 

OMB approval of a generic clearance to 

collect qualitative feedback on our 

service delivery (i.e., the products and 

services that the FTC creates to help 

consumers and businesses understand 

their rights and responsibilities, 

including Web sites, blogs, videos, print 

publications, and other content). 

mstockstill on DSK4VPTVN1PROD with NOTICES