California State Nonroad Engine and Vehicle Pollution Control Standards; Authorization of State Standards; Notice of Decision

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5673-1]

California State Nonroad Engine and Vehicle Pollution Control

Standards; Authorization of State Standards; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice regarding authorization of state standards.

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SUMMARY: EPA is authorizing California to enforce regulations for

exhaust emission standards and test procedures for nonroad recreational

vehicles and engines including: off-road motorcycles, all-terrain

vehicles (ATVs), golf carts, go-karts 25 horsepower and above, and

specialty vehicles less than 25 horsepower; pursuant to section 209(e)

of the Clean Air Act.

ADDRESSES: The Agency's decision document containing an explanation of

the Administrator's decision, as well as all documents relied upon in

reaching that decision, including those submitted by the California Air

Resources Board (CARB), are available for public inspection in the Air

and Radiation Docket and Information Center in Docket A-95-17 during

the working hours of 8:00 a.m. to 5:30 p.m., at the Environmental

Protection Agency, Air Docket (6102), Room M-1500, Waterside Mall, 401

M Street, S.W., Washington, D.C. 20460. Copies of the decision can be

obtained from EPA's Vehicle Program and Compliance Division by

contacting David Dickinson, as noted below.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Attorney/Advisor,

Vehicle Program and Compliance Division (6405J), U.S. Environmental

Protection Agency, 401 M Street, S.W., Washington, D.C. 20460.

Telephone: (202)233-9256. Electronic mail:

[email protected].

SUPPLEMENTARY INFORMATION: I have decided to authorize California to

enforce regulations for standards and test procedures for nonroad

engines and vehicles pursuant to section 209(e) of the Clean Air Act,

as amended (Act), 42 U.S.C. 7543. These regulations establish exhaust

emission standards and test procedures for off-road motorcycles and

[[Page 69094]]

ATVs produced on or after January 1, 1997, establish a zero-emission

standard for golf carts produced on or after January 1, 1997, establish

exhaust emission standards and test procedures for go-karts 25

horsepower and above produced on or after January 1,1997, and

established that specialty vehicles less than 25 horsepower and under,

produced on or after January 1, 1995 (please see the discussion below

for when enforcement of standards for such vehicles may take place),

comply with the current exhaust emission standards applicable to

utility equipment engines in California and further comply with a

second tier of standards commencing January 1, 1999. A comprehensive

description of these California regulations can be found in the

decision document for this authorization and in materials submitted by

CARB.

On the basis of the record before me, I cannot make the findings

required to deny authorization under section 209(e)(2) of the Act.

Therefore, I am authorizing California to enforce these regulations.

On June 21, 1995, EPA published a notice of opportunity for a

public hearing and a request for written comments concerning an

authorization request received from the California Air Resources Board

(CARB). 1 EPA received no request for a hearing and therefore no

hearing was held. EPA received written comments from the New York State

Department of Environmental Conservation, Toro Company, Ransomes

Cushman Ryan, and CARB. Consequently, this determination is based on

the written submissions from CARB, the written comments submitted in

response to the above-mentioned notice, and all other relevant

information.2

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\1\ 60 FR 32314 (June 21, 1995).

\2\ This information is contained in Docket A-95-17.

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Section 209(e) of the Act as amended, 42 U.S.C. 7543(e), addresses

state regulation of nonroad engines and vehicles. EPA issued on July

20, 1994 a final regulation to implement section 209(e).3 Section

209(e)(1) preempts states from regulating new engines which are used in

construction equipment or vehicles or used in farm equipment or

vehicles and which are smaller than 175 horsepower and new locomotives

or new engines used in locomotives. The section 209(e) regulation sets

forth definitions for these preempted categories of engines.

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\3\ See 59 FR 36969 (July 20, 1994) codified at 40 C.F.R. Part

85, Subpart Q, Secs. 85.160-85.1606.

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For those pieces of equipment or vehicles other than those a State

is permanently preempted from regulating under section 209(e)(1), the

State of California may promulgate standards regulating such equipment

or vehicles provided California complies with section 209(e)(2). The

section 209(e) rule provides that if certain criteria are met, the

Administrator shall authorize California to adopt and enforce standards

and other requirements relating to the control of emissions from such

vehicles or equipment. The criteria include consideration of whether

California arbitrarily and capriciously determined that its standards

are, in the aggregate, at least as protective of public health and

welfare as applicable Federal standards; whether California needs state

standards to meet compelling and extraordinary conditions; and whether

California's standards and accompanying enforcement procedures are

consistent with section 209.

California determined that its standards and test procedures would

not cause California emission standards, in the aggregate, to be less

protective of public health and welfare as the applicable Federal

standards. Information presented to me by parties opposing California's

authorization request did not demonstrate that California arbitrarily

or capriciously reached this protectiveness determination. Therefore, I

cannot find California's determination to be arbitrary or capricious.

CARB has continually demonstrated the existence of compelling and

extraordinary conditions justifying the need for its own motor vehicle

pollution control program. In addition, CARB provided information

regarding actions taken by the California Legislature in an effort to

address the current air quality conditions in California, directing

CARB to consider adopting regulations for off-road engines. No

information has been submitted to demonstrate that California no longer

has a compelling and extraordinary need for its own program. Based on

previous showings in the context of nonroad authorizations and CARB's

submissions to the record regarding the status of air quality in the

state, I agree that compelling and extraordinary conditions warrant the

need for California's own emissions program. Thus, I cannot deny the

waiver on the basis of the lack of compelling and extraordinary

conditions.

CARB has submitted information that the requirements of its

emission standards and test procedures do not violate the permanent

preemption provisions of section 209(e)(1), do not violate the motor

vehicle preemption provisions of section 209(a), and are

technologically feasible and present no inconsistency with Federal

requirements and are, therefore, consistent with section 209 of the

Act.

No information has been submitted to demonstrate that California

did not satisfy its burden of demonstrating that its emission standards

and test procedures do not violate section 209(e)(1). No information

has been submitted to demonstrate that California's emission standards

and test procedures violate section 209(a). Information submitted to me

by parties opposing California's authorization request did not satisfy

the burden of persuading EPA that the standards are not technologically

feasible within the available lead time, considering costs. In

addition, no information has been submitted to demonstrate that

California's certification test procedures are inconsistent with

Federal certification test procedures. Accordingly, I cannot make the

determinations required for a denial of this authorization request

under section 209(e) of the Act, and therefore, I authorize the State

of California to enforce these regulations.

As explained in the decision document noted above and by the

section 209(e) regulation, California can not enforce its standards and

test procedures for recreational vehicles until it receives

authorization from EPA. Therefore, California is now authorized to

enforce its standards and test procedures for specialty vehicles below

25 horsepower and to enforce its standards and test procedures for

other recreational vehicles according to the enforcement dates set

forth within the recreational vehicle regulation.

My decision will affect not only persons in California but also the

manufacturers outside the State who must comply with California's

requirements in order to produce nonroad vehicle engines for sale in

California. For this reason, I hereby determine and find that this is a

final action of national applicability.

Under 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 3, 1997. Under section 307(b)(2) of the Act, judicial review of

this final action may not be obtained in subsequent enforcement

proceedings.

As with past 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.

[[Page 69095]]

In addition, this action is not a rule as defined in the Regulatory

Flexibility Act, 5 U.S.C. 6601(2). Therefore, EPA has not prepared a

supporting regulatory flexibility analysis addressing the impact of

this action on small business entities.

Finally, the Administrator has delegated the authority to make

determinations regarding authorizations under section 209(e) of the Act

to the Assistant Administrator for Air and Radiation.

Dated: December 23, 1996.

Richard D. Wilson,

Acting Assistant Administrator for Air and Radiation.

[FR Doc. 96-33260 Filed 12-30-96; 8:45 am]

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