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[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Proposed Rules]
[Pages 41731-41739]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17888]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2010-1076; FRL-9439-4]
RIN 2060-AQ97

Air Quality: Widespread Use for Onboard Refueling Vapor Recovery 
and Stage II Waiver

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing criteria for determining whether onboard 
refueling vapor recovery (ORVR) is in widespread use for purposes of 
controlling motor vehicle refueling emissions throughout the motor 
vehicle fleet. The EPA is also proposing to determine the date at which 
such widespread use of ORVR will occur. Once the Administrator has 
determined that widespread use has occurred, the Administrator may 
waive Clean Air Act (CAA or Act) statutory requirements for states to 
implement Stage II gasoline vapor recovery systems at gasoline 
dispensing facilities in areas classified ``Serious,'' ``Severe,'' or 
``Extreme'' for nonattainment of the ozone national ambient air quality 
standard (NAAQS). Based on the proposed criteria, the EPA is proposing 
to determine that June 30, 2013, will be the date when ``widespread 
use'' will occur and the Stage II waiver will be effective. This 
rulemaking was identified as an example of examining rules to make sure 
they are still achieving the environmental benefit that was originally 
intended.

DATES: Comments must be received on or before September 13, 2011.
    Public Hearing: If anyone contacts us requesting to speak at a 
public hearing on or before August 1, 2011, we will hold a public 
hearing. Additional information about the hearing would be published in 
a subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-1076, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: a-and-r-docket@epamail.epa.gov, Attention Docket 
ID No. EPA-HQ-OAR-2010-1076
     Fax: 202-566-1541, Attention Docket ID No. EPA-HQ-OAR-
2010-1076
     Mail: Air and Radiation Docket and Information Center, 
Attention Docket ID No. EPA-HQ-OAR-2010-1076, Environmental Protection 
Agency, 1301 Constitution Ave., NW., Washington, DC 20460, Mailcode: 
6102T. Please include two copies if possible.
     Hand Delivery: Air and Radiation Docket and Information 
Center, Attention Docket ID No. EPA-HQ-OAR-2010-1076, Environmental 
Protection Agency in the EPA Headquarters Library, Room Number 3334 in 
the EPA West Building, located at 1301 Constitution Avenue, NW., 
Washington, DC. Such deliveries are only accepted during the Docket's 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-1076. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The

[[Page 41732]]

http://www.regulations.gov Web site is an ``anonymous access'' system, 
which means the EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption, and be free of any 
defects or viruses. For additional information about the EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air and Radiation 
Docket and Information Center in the EPA Headquarters Library, Room 
Number 3334 in the EPA West Building, located at 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Mr. Lynn Dail, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail code C539-02, 
Research Triangle Park, NC 27711, telephone (919) 541-2363; fax number: 
919-541-0824; e-mail address: dail.lynn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities directly affected by this action include states (typically 
state air pollution control agencies) and, in some cases, local 
governments that develop air pollution control rules that apply to 
areas classified as ``Serious,'' ``Severe,'' or ``Extreme'' for 
nonattainment of the ozone NAAQS. Individuals and companies that 
operate gasoline dispensing facilities may be indirectly affected by 
virtue of state action in State Implementation Plans (SIPs) that 
implement provisions resulting from final rulemaking on this action; 
many of these sources are in the following groups:

------------------------------------------------------------------------
         Industry group              SIC \a\            NAICS \b\
------------------------------------------------------------------------
Gasoline stations...............         5541            447110, 447190
------------------------------------------------------------------------
\a\ Standard Industrial Classification.
\b\ North American Industry Classification System.

B. What should I consider as I prepare my comments for the EPA?

    1. Submitting CBI. Do not submit this information to the EPA 
through regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments.
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. How can I find information about a possible public hearing?

    Public Hearing: To request a public hearing or information 
pertaining to a public hearing on this document, contact Ms. Pamela S. 
Long, Air Quality Policy Division, Mail code C504-03, U.S. 
Environmental Protection Agency, Research Triangle Park, NC 27711, 
telephone (919) 541-0641, facsimile number (919) 541-5509, email 
address: long.pam@epa.gov.

D. How is this preamble organized?

    The information presented in this preamble is organized as follows.

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
    C. How can I find information about a possible public hearing?
    D. How is this preamble organized?
II. Background
    A. What requirements for Stage II gasoline vapor recovery apply 
for ozone nonattainment areas?
    B. Stage II Vapor Recovery Systems
    C. Onboard Refueling Vapor Recovery (ORVR) Systems
    D. Incompatibility Between Some Vapor Recovery Systems
    E. Analytical Approach to Determining Whether ORVR Is In 
Widespread Use
III. Proposed Action
IV. Estimated Cost Savings
V. Statutory and Executive Order Reviews
    A. Executive Orders 12866 and 13563: Regulatory Planning and 
Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments

[[Page 41733]]

    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)
VI. Statutory Authority

II. Background

A. What requirements for Stage II gasoline vapor recovery apply for 
ozone nonattainment areas?

    Under CAA section 182(b)(3), Stage II vapor recovery systems are 
required to be used at larger gasoline dispensing facilities located in 
``Serious,'' ``Severe,'' and ``Extreme'' nonattainment areas for 
ozone.\1\ Based on deadlines established in the Act, within 24 months 
from the effective date of the initial area designation and 
classification, states must adopt a Stage II program into their SIPs, 
and the controls must be installed according to specified deadlines 
following state rule adoption. For existing facilities, the 
installation deadlines depend on the date the facilities were built and 
the monthly volume of gasoline dispensed. See CAA sections 
182(b)(3)(A)-(B), and 324(a)-(c).\2\
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    \1\ See CAA section 182(b)(3), 42 U.S.C. 7511a(b)(3). 
Originally, the section 182(b)(3) Stage II requirement also applied 
in all Moderate ozone nonattainment areas. However, under section 
202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the requirements of 
section 182(b)(3) no longer apply in Moderate ozone nonattainment 
areas after EPA promulgated ORVR standards on April 6, 1994, 59 FR 
16262, codified at 40 CFR parts 86 (including 86.098-8), 88 and 600. 
Under implementation rules issued in 2002 for the 1997 8-hour ozone 
standard, EPA retained the Stage II-related requirements under 
section 182(b)(3) and as they applied for the 1-hour ozone standard. 
40 CFR 51.900(f)(5) and 40 CFR 51.916(a).
    \2\ Section 182(b)(3)(B) has the following effective date 
requirements for implementation of Stage II after the adoption date 
by a state of a Stage II rule: 6 months after adoption of the state 
rule, for gas stations built after the enactment date (which for 
newly designated areas would be the designation date); 1 year after 
adoption date, for gas stations pumping at least 100,000 gal/month 
based on average monthly sales over 2-year period before adoption 
date; and 2 years after adoption, for all others.
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    However, the CAA provides discretionary authority to the EPA 
Administrator to, by rule, revise or waive the section 182(b)(3) Stage 
II requirement after the Administrator determines that ORVR is in 
widespread use throughout the motor vehicle fleet. See CAA section 
202(a)(6). The EPA first began the phase-in of ORVR by requiring that 
40 percent of passenger cars manufactured in model year 1998 be 
equipped with ORVR. The ORVR requirement for passenger cars was 
increased to 100 percent by model year 2000. Phase-in continued for 
other vehicle types and ORVR has been a requirement on virtually all 
new gasoline-powered motor vehicles (passenger cars, light trucks, and 
complete heavy-duty gasoline powered vehicles under 10,000 lbs gross 
vehicle weight rating (GVWR)) sold since model year 2006. See 40 CFR 
part 86. Currently, ORVR-equipped vehicles comprise approximately 64 
percent of the in-service vehicle fleet nationwide, and account for 
around 74 percent of the vehicle miles traveled (VMT) in the nationwide 
fleet. The percentage of non-ORVR vehicles and the percentage of VMT 
driven by those vehicles declines each year as these older vehicles 
wear out and are removed from service. Since certain vehicles are not 
required to have ORVR, including motorcycles and incomplete heavy-duty 
gasoline powered truck chassis, under current requirements the 
nationwide motor vehicle fleet would never be entirely equipped with 
ORVR.
    The EPA has been evaluating appropriate criteria for determining 
when widespread use of ORVR has occurred and for granting waivers to 
the section 182(b)(3) Stage II requirement and has issued policy 
memoranda addressing the issue in limited contexts.\3\ As discussed in 
these memoranda, the EPA interprets section 202(a)(6) of the CAA to 
give discretion to the Administrator to revise or waive the section 
182(b)(3) requirement when widespread use occurs either through a 
single national rulemaking or separate determinations for specific 
areas. By its terms, section 202(a)(6) does not specify the scope or 
type of motor vehicle fleet for which the EPA must find ORVR is in 
widespread use before revising or waiving the section 182(b)(3) Stage 
II requirement. Nor does the statutory language preclude revising or 
waiving the requirement for individual ``Serious,'' ``Severe'' or 
``Extreme'' nonattainment areas, or distinguishing between different 
types of areas (e.g., the EPA could determine widespread use has 
occurred at different times for different areas, and revise or waive 
section 182(b)(3) Stage II requirements accordingly). Therefore, the 
EPA retains significant discretion in this matter.
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    \3\ See, e.g., Memorandum from Stephen D. Page, Director, Office 
of Air Quality Planning and Standards, and Margo Tsirigotis Oge, 
Director, Office of Transportation and Air Quality, to Regional Air 
Division Directors, ``Removal of Stage II Vapor Recovery in 
Situations Where Widespread Use of Onboard Refueling Vapor Recovery 
is Demonstrated'' (Dec. 12, 2006); see also, Memorandum from Stephen 
D. Page and Margo Tsirigotis Oge, ``Removal of Stage II Vapor 
Recovery from Refueling of Corporate Fleets'' (Nov. 28, 2007). Both 
of these memoranda are included in the docket for this proposed 
rulemaking, docket number EPA-HQ-OAR-2010-1076.
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    Based on our evaluation of the available data and appropriate 
criteria for determining that widespread use of ORVR has occurred, the 
EPA is proposing a determination of ORVR widespread use and a general 
waiver of the section 182(b)(3) Stage II requirement effective 
nationwide, on June 30, 2013. If promulgated, this would apply to any 
area that currently requires a Stage II program under section 
182(b)(3). Additionally, any nonattainment area classified ``Serious,'' 
``Severe,'' or ``Extreme'' for the first time after approximately 
January 1, 2011, would not be required to adopt and implement a new 
Stage II program under section 182(b)(3). This is because such areas, 
under the terms of section 182(b)(3), would not be required to 
implement Stage II programs until 2 and a half years after such 
classification, which would be the effective date of the proposed 
widespread use determination and section 182(b)(3) waiver.
    We also propose that individual states (with or without existing 
Stage II programs) may separately submit SIP revisions to the EPA that 
demonstrate that ORVR widespread use has occurred (or will occur) on a 
date earlier than June 30, 2013, for areas in their states, and request 
that the EPA revise or waive the section 182(b)(3) requirement as it 
applies to only those areas. Such a separate demonstration would 
require an EPA rulemaking and the Administrator's approval before it 
could be effective. States may use the procedures discussed in Section 
II E. titled Analytical Approaches to Determining Whether ORVR is in 
Widespread Use with area-specific data rather than the generalized, 
national data shown in Table 1 in that section.
    Subsequent to the effective waiver date of the section 182(b)(3) 
Stage II requirement, areas currently implementing SIP-approved Stage 
II programs, as a result of obligations under the 1-hour or 1997 8-hour 
ozone NAAQS, would be required to continue implementing these programs 
until an EPA SIP revision approves removal of the requirement from the 
state's ozone implementation plan. Although the EPA is proposing to 
determine that ORVR is in widespread use as of June 30, 2013, states 
may prepare and submit SIP revisions before that date so that the EPA 
can review and approve such SIP revisions as soon as possible after 
June 30, 2013.

[[Page 41734]]

    To approve a SIP revision removing Stage II provisions, the EPA 
must ensure that such removal would not interfere with other applicable 
CAA requirements under section 110(l), which precludes the 
Administrator from approving a SIP revision if it would interfere with 
applicable CAA requirements (including attainment and maintenance of 
the ozone NAAQS). This is discussed in more detail in Section III of 
this preamble. Of course, even after the EPA takes final action to find 
widespread use of ORVR has occurred and issues a waiver of the section 
182(b)(3) requirement, states remain free under CAA section 116 to 
choose to implement Stage II programs in any area, and would not be 
forced to remove existing Stage II provisions from a SIP.

B. Stage II Vapor Recovery Systems

    When an automobile or other vehicle is brought into a service 
station to be refueled, the empty portion of the fuel tank on the 
vehicle contains gasoline vapors. When liquid gasoline is pumped into 
the partially empty gas tank the vapors are forced out of the tank as 
the tank fills with liquid gasoline. Where air pollution control 
technology is not used, these vapors are emitted into the air. In the 
atmosphere, these vapors can react with sunlight, nitrogen oxides and 
other volatile organic compounds to form ozone. In order to prevent 
this, the 1990 CAA Amendments added section 182(b)(3), requiring owners 
or operators of gasoline dispensing facilities in Moderate, Severe or 
Extreme ozone nonattainment areas to install and operate a system for 
recovery of gasoline vapor from the fueling of motor vehicles. This 
requirement only applies to facilities that sell more than a specified 
number of gallons per month and is set forth in sections 182(b)(3)(A)-
(C) and 324(a)-(c). States were required to adopt rules for this 
requirement no later than 2 years after the enactment of the 1990 CAA 
Amendments. As a consequence of these provisions, gas station owners 
and operators in Moderate, Severe, or Extreme nonattainment areas have 
installed these vapor control systems, known as ``Stage II controls.'' 
\4\
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    \4\ This designation is to distinguish them from vapor recovery 
systems on the transport tanker trucks that deliver gasoline to the 
service stations, which are known as Stage I systems. Stage I 
systems direct vapors from the underground storage tank at the 
service station back into the tanker truck as the underground tank 
is filled with liquid gasoline from the tanker truck.
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    Stage II control systems often have a rubber boot around the 
gasoline nozzle spout that fits snugly up to a vehicle's gasoline fill 
pipe during refueling of the vehicle. Gasoline vapors from the fill 
pipe are forced into this sleeve (rubber boot) rather than emitted into 
the air. Typically, a separate hose allows the vapor to flow back into 
the underground gasoline storage tank. A concentric hose (one hose 
inside another) is commonly used; gasoline flows through one of the 
hoses into the vehicle and vapors flow back through the other hose into 
the dispenser and from there through underground piping to the 
underground storage tank.
    There are two basic approaches to Stage II vapor recovery: balance 
and vacuum assist. With a balance system, when gasoline in the 
underground tank is pumped into a vehicle, a positive pressure 
differential is created between the vehicle tank and the underground 
tank. This pressure differential draws the gasoline vapors from the 
vehicle fill pipe through the rubber boot and the concentric hoses and 
underground piping into the underground tank. This is known as a 
balance system, since the gasoline vapors from the vehicle tank flow 
into the underground tank to balance pressures.
    Another type of Stage II system uses a vacuum pump on the vapor 
return line to help draw vapors from the automobile fill pipe into the 
underground storage tank. An advantage of this type of system is that 
the rubber boot around the nozzle can be smaller and lighter (or not 
used at all) and still draw the vapors into the vapor return hose. This 
makes for an easier-to-handle nozzle, which is popular with customers. 
This type of Stage II system is known as a vacuum assist system.
    The in-use efficiency of a Stage II program is directly 
proportional to the proper installation, operation, and maintenance of 
the control equipment at the gasoline dispensing facilities.\5\ 
Damaged, missing, or improperly operating components or systems can 
significantly degrade the control effectiveness of a Stage II system. 
Experience has shown that frequent inspections are necessary to ensure 
that the Stage II equipment is working as designed. Although new Stage 
II equipment may be required to achieve 95 percent control 
effectiveness at certification, studies have shown that in-use control 
efficiency depends on frequent inspection by state agencies and 
operator actions. The EPA guidance specifies minimum training, 
inspection, and testing criteria, and most states have adopted and 
supplemented these as deemed necessary for balance and vacuum assist 
systems.\6\ However, in-use effectiveness ultimately depends on the 
consistency of inspections, follow-up by state agencies, and follow 
through by operators to perform inspections and conduct maintenance in 
a correct and timely manner. The EPA studies have calculated in-use 
efficiencies of 92 percent with semi-annual inspections, 86 percent 
with annual inspections and 62 percent with minimal or less frequent 
state inspections.\7\ In-use Stage II vapor recovery system efficiency 
depends heavily on inspection frequency and maintenance efforts and the 
vigilance of station owners and states in these areas. Thus, the in-use 
effectiveness of Stage II within any state or nonattainment area may 
vary over time. Nonetheless, for over 15 years this technology has 
provided substantial VOC emission reductions in ozone nonattainment 
areas, which needed those reductions to attain the ozone NAAQS as well 
as reductions in air toxic emissions such as benzene.
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    \5\ The Petroleum Equipment Institute has published recommended 
installation practices (PEI/RP300-93) and most states require 
inspection, testing, and evaluation before a system is commissioned 
for use.
    \6\ ``Enforcement Guidance for Stage II Vehicle Refueling 
Control Programs'' U.S. EPA, Office of Air and Radiation, Office of 
Mobile Sources, December 1991.
    \7\ ``Technical Guidance--Stage II Vapor Recovery Systems for 
Control of Vehicle Refueling at Gasoline Dispensing Facilities 
Volume I: Chapters'' EPA-450/3-91-022a, November 1991.
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C. Onboard Refueling Vapor Recovery (ORVR) Systems

    In addition to Stage II controls, the 1990 CAA Amendments required 
another method of controlling these emissions. Section 202(a)(6) of the 
CAA requires an onboard system of capturing vehicle refueling 
emissions, commonly referred to as an ORVR system.\8\ ORVR consists of 
an activated carbon canister installed in the vehicle into which vapors 
being expelled from the vehicle fuel tank are forced to flow. There the 
vapors are captured by the activated carbon in the canister. When the 
engine is started, the vapors are drawn off of the activated carbon and 
into the engine where they are burned as fuel. The EPA promulgated ORVR 
standards on April 6, 1994, 59 FR 16262.
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    \8\ Unlike Stage II, which is a requirement only in ozone 
nonattainment areas, ORVR requirements apply to vehicles everywhere. 
More detail on ORVR is available at http://www.epa.gov/otaq/orvr.htm.
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    Section 202(a) (6) of the CAA required that the EPA's ORVR 
standards apply to light-duty vehicles manufactured beginning in the 
fourth model year after the model year in which the standards were 
promulgated, and that ORVR systems provide a minimum evaporative 
emission capture efficiency of 95 percent. Section 202(a)(6) also 
provided that upon promulgation of the ORVR

[[Page 41735]]

rules, Moderate ozone nonattainment areas are no longer subject to the 
section 182(b)(3) Stage II requirement. However, the section 182(b)(3) 
Stage II requirement continues to apply for ``Serious,'' ``Severe,'' 
and ``Extreme'' ozone nonattainment areas, unless and until under 
section 202(a)(6) the EPA finds that ORVR is in widespread use in the 
motor vehicle fleet and issues a rule waiving the section 182(b)(3) 
Stage II requirement.
    Automobile manufacturers began installing ORVR on new passenger 
cars in 1998 when 40 percent of new cars were required to have ORVR. 
The percentage of new cars with ORVR increased to 80 percent in 1999 
and 100 percent in 2000. ORVR for light duty trucks and vans (
maintenance programs.
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    In 2000, the EPA published a report addressing the effectiveness of 
OBD II control systems.\12\ This study concluded that enhanced 
evaporative and ORVR emission control systems are durable and low 
emitting relative to the FTP (Federal Test Procedure) enhanced 
evaporative emission standards and that OBD II evaporative emissions 
checks are a suitable replacement for functional evaporative emission 
tests in state inspection/maintenance programs.
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    \12\ ``Effectiveness of OBD II Evaporative Emission Monitors--30 
Vehicle Study,'' EPA 420-R-00-018, October 2000.
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D. Incompatibility Between Some Vapor Recovery Systems

    When an ORVR vehicle is fueled at a service station equipped with a 
vacuum assist Stage II vapor recovery system, a lack of compatibility 
between the two controls may actually cause the emission reduction of 
the two systems together to be less than the emission reduction 
achieved by either system alone. The problem arises when the ORVR 
canister captures the gasoline emissions from the motor vehicle fuel 
tank. Instead of drawing vapor-laden air from the vehicle fuel tank 
into the underground storage tank, the vacuum pump of the Stage II 
system draws fresh air into the underground storage tank. The fresh air 
causes gasoline in the underground tank to evaporate inside the 
underground tank and thus creates an increase in pressure in the 
underground storage tank. As a result, gasoline vapors may be forced 
out of the underground storage tank vent pipe into the ambient air. 
This incompatibility can result in a 1 to 10 percent decrease in 
control efficiency over what would be achieved by either Stage II or 
ORVR alone. The decrease in efficiency varies depending on the vacuum 
assist technology design (including the ratio of volume of air drawn 
into the underground tank compared to the volume of gasoline 
dispensed), the gasoline Reid vapor pressure, the air and gasoline 
temperatures, and the fraction of throughput dispensed to ORVR 
vehicles. There are various technologies that address this 
incompatibility, such as nozzles that sense when fresh air is being 
drawn into the underground storage tank and stop the air flow. Another 
solution is the addition of processors on the underground storage tank 
vent pipe that capture or destroy the gasoline vapor emissions from the 
vent pipe. Installing these technologies adds to the expense of the 
control systems and is in some cases a reason to remove Stage II 
systems.

E. Analytical Approach to Determining Whether ORVR Is in Widespread Use

    The EPA has considered several possible analytical approaches to 
determining when and whether ORVR is in widespread use in the motor 
vehicle fleet. The approach the EPA proposes to use here is to focus on 
the volume of gasoline that is dispensed into vehicles equipped with 
ORVR, and to compare the emissions reductions achieved by ORVR alone to 
the reductions that can be achieved by Stage II controls alone.
    Table 1 shows information related to the penetration of ORVR in the 
national motor vehicle fleet projected to 2020. The overall efficiency 
of ORVR at reducing refueling emissions increases as older vehicles are 
replaced by newer ORVR-equipped vehicles. Overall ORVR efficiency is 
shown in column 5 of Table 1 and is determined by multiplying the 
fraction of gasoline dispensed into ORVR-equipped vehicles by ORVR's 98 
percent control efficiency.

[[Page 41736]]

                  Table 1--Projected Penetration of ORVR in the National Vehicle Fleet by Year
----------------------------------------------------------------------------------------------------------------
                    1                             2                 3                 4                 5
----------------------------------------------------------------------------------------------------------------
                                               Vehicle                            Gasoline
              Calendar year                  population      VMT percentage       dispensed      ORVR efficiency
                                             percentage                          percentage        percentage
----------------------------------------------------------------------------------------------------------------
2006....................................              39.5              48.7              46.2              45.3
2007....................................              45.3              54.9              52.5              51.5
2008....................................              50.1              60.0              57.6              56.4
2009....................................              54.3              64.5              62.1              60.9
2010....................................              59.0              69.3              66.9              65.6
2011....................................              63.6              73.9              71.5              70.1
2012....................................              67.9              78.0              75.6              74.1
2013....................................              71.7              81.6              79.3              77.7
2014....................................              75.2              84.6              82.6              80.9
2015....................................              78.4              87.2              85.3              83.6
2016....................................              81.2              89.4              87.7              85.9
2017....................................              83.6              91.2              89.7              87.9
2018....................................              85.6              92.7              91.3              89.5
2019....................................              87.5              93.9              92.7              90.8
2020....................................              89.0              94.9              93.9              92.0
----------------------------------------------------------------------------------------------------------------
See the EPA Memorandum ``Onboard Refueling Vapor Recovery Widespread Use Assessment'' in the docket (number EPA-
  HQ-OAR-2010-1076) addressing details on issues related to values in this table.
Note: In this table, the columns have the following meaning.
1. Calendar year that corresponds to the percentages in the row associated with the year.
2. Percentage of the gasoline-powered highway vehicle fleet that have ORVR.
3. Percentage of vehicle miles traveled (VMT) by vehicles equipped with ORVR.
4. Amount of gasoline dispensed into ORVR-equipped vehicles as a percentage of all gasoline dispensed to highway
  motor vehicles.
5. Percentage from the same row in column 4 multiplied by 0.98.\13\

     
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    \13\ Based on tests of over 1000 in-use ORVR-equipped vehicles, 
the average in-use efficiency of ORVR is 98 percent. The legal 
requirement for ORVR is 95 percent efficiency. Thus, the actual 
reported control achieved in practice is greater than the 
statutorily required level of control.
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    The EPA estimates that the amount of control that ORVR alone would 
need to achieve to be equivalent to the amount of control Stage II 
alone would achieve is 77.4 percent. This estimate is based on the 
expected in-use control efficiency for a typical Stage II program in 
nonattainment areas under the hypothetical scenario that ORVR does not 
exist. The EPA estimates that nationally in areas where basic Stage II 
systems are used the control efficiency of Stage II gasoline vapor 
control systems is 86 percent. The use of this value depends on the 
assumption that annual inspections and appropriate maintenance are 
conducted in a correct and timely manner. This control efficiency is 
achieved only at refueling stations where a Stage II system is required 
to be installed, so not all of the gasoline dispensed in a 
nonattainment area is controlled by a Stage II system. The EPA 
estimates that the percentage of gasoline dispensed in an area that is 
covered by Stage II controls is 90 percent.\14\ Multiplying the 
estimated efficiency of Stage II systems (86 percent) by the estimated 
fraction of gasoline dispensed in nonattainment areas from Stage II-
equipped gasoline pumps yields an estimate of the area-wide control 
efficiency of Stage II programs of 77.4 percent (0.90 x 0.86 = 0.774 or 
77.4 percent). Table 1 indicates this level of control efficiency is 
expected to be achieved between the end of calendar year 2012 and the 
end of 2013. The EPA expects ORVR alone to achieve emissions reductions 
equal to Stage II alone during calendar year 2013; therefore, the EPA 
is proposing to determine that ORVR will be in widespread use by June 
30, 2013, or the midpoint of calendar year 2013.
---------------------------------------------------------------------------

    \14\ See section 4.4.3 (especially Figure 4-14 and Table 4-4) in 
``Technical Guidance--Stage II Vapor Recovery Systems for Control of 
Vehicle Refueling Emissions at Gasoline Dispensing Facilities, 
Volume I: Chapters,'' EPA-450/3-91-022a, November 1991. A copy of 
this document is located in the docket for this action EPA-HQ-OAR-
2010-1076. This is based on annual enforcement inspections and on 
allowable exemptions of 10,000/50,000 gallons per month as described 
in section 324a of the CAA. EPA recognizes that these two values 
vary by state and that in some cases actual in-use efficiencies, 
prescribed exemption levels, or both may be either higher or lower.
---------------------------------------------------------------------------

    We also observe from Table 1 that by the end of calendar year 2012 
more than 75 percent of gasoline will be dispensed into ORVR-equipped 
vehicles. The EPA believes that this percentage of ORVR coverage (>75 
percent) is substantial enough to inherently be viewed as 
``widespread'' under any ordinary understanding of that term. The 
dictionary defines ``widespread'' as meaning ``widely diffused or 
prevalent.'' Webster's Ninth Collegiate Dictionary, 1348 (1986). 
Seventy-five percent serves as a reasonable benchmark for this 
threshold, as it is substantially more than a majority value, and as it 
is not necessary for something to reach or approach a threshold of 100 
percent for it to become ``prevalent,'' which is in turn defined as 
``generally or widely accepted, practiced or favored.'' Id., at 933. In 
Table 1, the percentage of VMT by ORVR-equipped vehicles (column 3) and 
the amount of gasoline dispensed into ORVR-equipped vehicles (column 4) 
reach or exceed 75 percent between the end of year 2011 and end of 
2012. The EPA believes this provides further support for establishing a 
widespread use date after the end of calendar year 2012.

III. Proposed Action

    The EPA is proposing to determine that ORVR widespread use will 
occur at the mid-point in the 2013 calendar year, June 30, 2013. The 
EPA is proposing June 30, 2013, as the effective date for both the 
determination of ORVR widespread use and a waiver of the CAA section 
182(b)(3) Stage II requirement for ``Serious,'' ``Severe'' and 
``Extreme'' ozone nonattainment areas.
    This ORVR widespread use determination and section 182(b)(3) waiver 
would apply to the entire country, including areas that are not now 
classified as ``Serious,'' ``Severe,'' or ``Extreme'' for ozone 
nonattainment but that may in the future be classified as ``Serious,'' 
``Severe,'' or ``Extreme''

[[Page 41737]]

(e.g., a current ozone nonattainment area that may be reclassified to 
``Serious,'' ``Severe,'' or ``Extreme'' as a result of a state's 
request or as a consequence for failing to attain the ozone standard by 
the specified attainment date).
    If promulgated, the ORVR widespread use determination and section 
182(b)(3) waiver determination would not obligate states to remove any 
existing Stage II vapor recovery requirements. For states that choose 
to remove the program, they will need to ensure that removal of the 
program does not interfere with attainment and maintenance of the NAAQS 
per CAA section 110(1). Using the effective date of an ORVR widespread 
use determination and waiver of the section 182(b)(3) Stage II 
requirement, states that wish to act upon the Stage II waiver and 
remove existing EPA-approved Stage II requirements from their SIPs 
would need to submit a SIP revision requesting the EPA to approve such 
action that is effective after the June 30, 2013, date. States would 
not need to wait until June 30, 2013, to submit such SIP revision 
subject to the provisions of CAA section 110(1).
    In their SIP analysis, states may elect to conduct area-specific 
analyses, specifying parameters that are reflective of the types and 
ranges of equipment and operating patterns in use in the relevant area. 
Such an individualized analysis performed by a state may demonstrate 
that there are benefits to retaining the program beyond the widespread 
use date established by the EPA through national analysis. States may 
choose to continue to require or enhance Stage II controls in a 
particular area if they continue to achieve air quality benefits. 
Jurisdictions that choose to continue using Stage II systems after the 
widespread use date should consider taking appropriate actions to 
correct any excess emission incompatibility between ORVR and vacuum 
assist Stage II systems.
    Section 110(l) precludes the Administrator from approving a SIP 
revision if it would interfere with applicable CAA requirements 
(including, but not limited to, attainment and maintenance of the ozone 
NAAQS and achieving reasonable further progress). Some states may find 
that by removing Stage II requirements they are reducing the overall 
level of reductions for which they have previously obtained credit. 
Such states would need to show that foregoing any additional VOC 
emissions reductions resulting from Stage II would not interfere with 
attaining and maintaining the ozone NAAQS in violation of section 
110(l). In such circumstances it is possible that additional emissions 
reductions may be needed to offset the removal of Stage II. It should 
also be noted that removing Stage II may affect mobile source emissions 
budgets, so we urge states to consult with the state and local 
transportation agencies. States could choose to keep Stage II for an 
additional period of time to allow further ORVR penetration in the 
motor vehicle fleet or to obtain equivalent emissions reductions from 
other sources.
    In previous memoranda, the EPA provided guidance to states on 
removing Stage II at refueling facilities dedicated to certain segments 
of the motor vehicle fleet (e.g., new automobile assembly plants, 
rental car facilities, E85 dispensing pumps, and corporate fleet 
facilities). In these specific cases where all or nearly all of the 
vehicles being refueled are ORVR-equipped, the EPA could conservatively 
conclude that widespread use of ORVR had occurred in these fleets. We 
indicated that we could approve a SIP revision removing Stage II 
requirements from these facilities with a demonstration that 95 percent 
of the fleet being refueled is equipped with ORVR.\15\ This guidance 
was based on the EPA's assessment that removing Stage II controls at 
facilities meeting this criterion would not result in a significant 
increase in VOC emissions in the nonattainment area and thus would 
likely satisfy the conditions of CAA section 110(l). The EPA continues 
to believe this is sound guidance in areas where Stage II is currently 
being implemented, and is unaffected by the national widespread use 
determination proposed in this notice.
---------------------------------------------------------------------------

    \15\ ``Removal of Stage II Vapor Recovery in Situations where 
Widespread Use of Onboard Refueling Vapor Recovery is 
Demonstrated,'' from Stephen D. Page and Margo Tsirigotis Oge, EPA, 
December 12, 2006.
---------------------------------------------------------------------------

    The EPA is also proposing that states may demonstrate that ORVR 
widespread use has occurred in specific areas sooner than the general, 
national date of June 30, 2013. States would do so by applying the same 
rationale the EPA is proposing to apply to the national fleet 
characteristics to area-specific motor vehicle fleet information. A 
state that provides such a demonstration may request that the 
Administrator establish a different effective date for waiver of the 
section 182(b)(3) requirement in a specific area. If the Administrator 
grants such a waiver for an area currently implementing a Stage II 
program, the state may request removal of the program from the SIP 
subject to the constraints of other applicable provisions of law.
    States in the Ozone Transport Region (OTR) are also subject to a 
separate Stage II-related requirement. Under section 184(b)(2) of the 
CAA (42 U.S.C. 7511c(b)(2)), all areas in the OTR, both attainment and 
nonattainment areas, must implement either Stage II or measures that 
achieve comparable emissions reductions. This independent requirement 
is not affected by any widespread use determination or waiver of the 
section 182(b)(3) Stage II requirement granted under section 202(a)(6). 
The section 184(b)(2) Stage II-related requirement for the OTR will 
continue to remain in place even after the ORVR widespread use 
determination and section 182(b)(3) waiver effective date. This is 
because the section 184(b)(2) requirement does not impose Stage II per 
se, but rather is a requirement that OTR states achieve an amount of 
emissions reductions that corresponds to the amount that Stage II would 
achieve. Moreover, section 202(a)(6), in allowing for a waiver of the 
section 182(b)(3) Stage II requirement for nonattainment areas, does 
not refer to the independent section 184(b)(2) requirement. Thus, all 
areas in the OTR that are implementing Stage II controls under the 
requirements of both section 182(b)(3) and section 184(b)(2), or under 
section 184(b)(2) alone, would need to have adopted measures that 
achieve emissions reductions that are at least equivalent to those 
achievable by Stage II, incremental to ORVR, before the EPA could 
approve a SIP revision removing Stage II controls. The EPA intends to 
provide additional guidance for OTR states on how they can conduct 
updated comparability analyses based on the ``Stage II Comparability 
Study for the Northeast Ozone Transport Region,'' (EPA-452/R-94-011; 
January 1995) for purposes of removing Stage II under section 
184(b)(2).
    Before deciding to remove Stage II, state and local agencies should 
also consider any transportation conformity impacts related to removing 
Stage II if emissions reductions from Stage II are included in a SIP-
approved on-road motor vehicle emissions budget. States may need to 
adjust conformity budgets or the components of the budget if removing 
Stage II requirements after the widespread use date would alter 
expected air quality benefits.
    We request comment on all aspects of our treatment of the ORVR 
widespread use and section 182(b)(3) waiver issue, including any 
additional information that would assist the EPA in determining when 
ORVR widespread use will occur.

[[Page 41738]]

IV. Estimated Cost Savings

    The EPA has conducted an initial assessment of the costs and 
savings to gasoline dispensing facility owners related to this proposed 
action. A report titled, ``Draft Regulatory Support Document, 
Decommissioning Stage II Vapor Recovery, Financial Benefits and 
Costs,'' is available in the public docket for this action. The report 
examines the initial costs and savings to facility owners incurred in 
the decommissioning of Stage II vapor recovery systems, as well as 
changes in recurring costs associated with above ground hardware 
maintenance, operations, and administrative tasks. The EPA estimates 
cost savings of about $3,277 per year for a typical gasoline dispensing 
facility, and an annual nationwide savings of $88 million if Stage II 
is phased out of the approximately 27,000 dispensing facilities outside 
of California that are required to have Stage II vapor recovery systems 
under section 182(b)(3) of the CAA. The EPA is also taking comment on 
this analysis and the implications to the Stage II waiver.

V. Statutory and Executive Order Reviews

A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' because it raises 
novel legal or policy issues arising out of legal mandates. 
Accordingly, the EPA submitted this action to the Office of Management 
and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 
FR 3821, January 21, 2011) and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). It does not contain any 
recordkeeping or reporting requirements.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of these proposed regulations 
on small entities, small entity is defined as: (1) A small business as 
defined in the Small Business Administration's (SBA) regulations at 13 
CFR 121.201;) (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of these proposed 
regulations on small entities, I certify that this action will not have 
a significant economic impact on a substantial number of small 
entities. This proposed rule will not impose any requirements on small 
entities. Rather, it provides criteria for reducing existing regulatory 
requirements on entities.
    We continue to be interested in the potential impacts of these 
proposed regulations on small entities and welcome comments on issues 
related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any state, local or 
tribal governments, or the private sector. Therefore, this action is 
not subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This proposed 
action addresses the removal of a requirement regarding gasoline vapor 
recovery equipment, but does not impose any obligations to remove these 
programs.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action does not impose any new 
mandates on state or local governments. Thus, Executive Order 13132 
does not apply to this rule. In the spirit of Executive Order 13132, 
and consistent with the EPA policy to promote communications between 
the EPA and state and local governments, the EPA specifically solicits 
comments on this proposed rule from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the federal government and Indian Tribes, or on the 
distribution of power and responsibilities between the federal 
government and Indian Tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.
    The EPA specifically solicits additional comment on this proposed 
rule from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. It does not impose additional costs on 
gasoline distribution, but rather promises to lower cost for gasoline 
vapor control by facilitating removal of redundant controls.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d), (15 U.S.C. 272 
note) directs the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or

[[Page 41739]]

otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs the EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
the EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action proposes to waive the requirement for states 
to adopt Stage II programs, based on a determination of widespread use 
of ORVR. The EPA believes that by the date specified in the proposed 
rule, the amount of control that ORVR alone will achieve will be 
equivalent to the amount of control Stage II alone would achieve.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(K) and 307(d)(1)(V) of the CAA, the 
Administrator determines that this action is subject to the provisions 
of section 307(d). Section 307(d)(1)(V) provides that the provisions of 
section 307(d) apply to ``such other actions as the Administrator may 
determine.''

VI. Statutory Authority

    The statutory authority for this action is provided by sections 
182(b)(3) and 202(a)(6) of the CAA, as amended (42 U.S.C. 7511a(b)(3) 
and 42 U.S.C.7521(a)(6)). This notice is also subject to section 307(d) 
of the CAA (42 U.S.C. 7407(d)).

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Ozone, Particulate matter, Volatile organic 
compounds.

    Dated: July 8, 2011.
Lisa P. Jackson,
Administrator.

    For reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    1. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart G--[Amended]

    2. Section 51.126 is added to read as follows:

Sec.  51.126  Determination of widespread use of ORVR and waiver of CAA 
section 182(b)(3) Stage II gasoline vapor recovery requirements.

    (a) Pursuant to section 202(a)(6) of the Clean Air Act, the 
Administrator has determined that, effective June 30, 2013, onboard 
refueling vapor recovery (ORVR) systems are in widespread use in the 
motor vehicle fleet within the United States.
    (b) Effective June 30, 2013, the Administrator waives the 
requirement of Clean Air Act section 182(b)(3) for Stage II vapor 
recovery systems in ozone nonattainment areas regardless of 
classification. States must submit and receive the EPA approval of a 
revision to their State Implementation Plans before removing Stage II 
requirements that are contained therein.
    (c) Notwithstanding paragraphs (a) and (b) of this section, States 
may submit to the EPA demonstrations that ORVR systems are in 
widespread use for areas within their borders as of a date earlier than 
June 30, 2013, and may request an earlier date for revision or waiver 
of the Clean Air Act section 182(b)(3) Stage II requirement based on 
such a demonstration. The Administrator may act on such requests by 
rule under Clean Air Act section 202(a)(6).

[FR Doc. 2011-17888 Filed 7-14-11; 8:45 am]
BILLING CODE 6560-50-P
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