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Federal Register/Vol. 64, No. 105/Wednesday, June 2, 1999/Rules and Regulations

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities."

Today's rule does not significantly or

uniquely affect the communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian tribes.

Accordingly, the requirements of

section 3(b) of E.O. 13084 do not apply

to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5

U.S.C. 600 et seq., generally requires an

agency to conduct a regulatory

flexibility analysis of any rule subject to

notice and comment rulemaking

requirements 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 not-forprofit enterprises, and small

governmental jurisdictions. Since this

final rule is not subject to notice-andcomment requirements under the APA,

or any other statutes, it is not subject to

sections 603 or 604 of the RFA.

Furthermore, this action will not have a

significant impact on a substantial

number of small entities because these

findings under section 110 and

subchapter I, part D of the Act do not,

in -and -of-themselves, directly impose

any new requirements on small entities.

See Mid-Tex Electric Cooperative, Inc. v.

FEC, 773 F.2nd 327 (D.C. Cir. 1985)

(agency's certification need only

consider the rule's impact on entities

subject to the requirements of the rule).

Instead, this action makes findings of

failure to submit and establishes a

schedule for Texas to stop the clocks

and does not directly regulate any

entities. Therefore, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities.

F. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated annual costs to

State, local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

Sections 202 and 205 do not apply to

this action because the findings that

Texas failed to submit the required SIP

for the DFW area do not, in-and-ofthemselves constitute a Federal

mandate, because they do not impose

any enforceable duty on any entity. In

addition, the Act does not permit EPA

to consider the type of analyses

described in section 205 in determining

whether a State has failed to submit a

required SIP. Finally, section 203 does

not apply to the action because the SIP

submittal schedule to stop the clocks

would only affect the State of Texas,

which is not a small government.

G. Submission to Congress and the

Comptroller General

The Congressional Review Act (CRA),

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

Small Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. Section 808 allows

the issuing agency to make a rule

effective sooner than otherwise

provided by the CRA if the agency

makes a good cause finding that notice

and public procedure is impracticable,

unnecessary, or contrary to public

interest. This determination must be

supported by a brief statement, 5 U.S.C.

808(z). As stated previously, EPA has

made a good cause finding, including

the reasons therefor, and established an

effective date of May 13, 1999, the date

of signature. The EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This action is not

a "major" rule as defined by 5 U.S.C.

804(2).

H. Paperwork Reduction Act

This rule does not contain any

information requirements which require

OMB approval under the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.)

L Petitions for Judicial Review

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by August 2, 1999. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. See section

307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon Monoxide,

Hydrocarbons, Intergovernmental

relations, Nitrogen oxides, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

Authority: 42 U.S.C. 7401 et seq.

Dated: May 13, 1999.

Gregg A. Cooke,

Regional A dministrator, Region 6.

[FR Doc. 99 13806 Filed 6 1 99; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[NV-034-0016; FRL-6350-5]

Approval and Promulgation of

Implementation Plans; Nevada State

Implementation Plan Revision, Clark

County

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing the approval

of revisions to the Nevada State

Implementation Plan (SIP) proposed in

the Federal Register on December 11,

1998. This action specifically includes

approval of revisions to Clark County

Health District's wintertime oxygenated

fuels program. This approval action will

incorporate these revisions into the

federally approved SIP. The intended

effect of approving these revisions is to

regulate emissions of carbon monoxides

(CO) in accordance with the

requirements of the Clean Air Act, as

amended in 1990 (CAA or the Act).

Thus, EPA is finalizing the approval of

these revisions into the Nevada SIP

under provisions of the CAA regarding

EPA action on SIP submittals, SIPs for

national primary and secondary ambient

air quality standards and plan

requirements for nonattainment areas.

EFFECTIVE DATE: This action is effective

on July 2, 1999.

ADDRESSES: Copies of the SIP revision

and EPA's evaluation report are

available for public inspection at EPA's

Region 9 office during normal business

hours. Copies of these documents are

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also available for inspection at the

following locations:

Nevada Division of Environmental

Protection, Bureau of Air Quality, 123

W. Nye Lane, Carson City, NV

Clark County Health District, P.O. Box

3902, 625 Shadow Lane, Las Vegas,

NV

FOR FURTHER INFORMATION CONTACT:

Roxanne Johnson, Air Planning Office

(AIR-2), Air Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105-3901, (415) 744-

1225.

SUPPLEMENTARY INFORMATION:

1. Applicability

The revisions being approved into the

Nevada SIP include: Clark County

District Board of Health, (Clark County),

Air Pollution Control (APC) Section 53,

Oxygenated Gasoline Program (as

amended and approved on September

25, 1997). This SIP revision was

submitted by the Nevada Division of

Environmental Protection to EPA on

August 7, 1998.

II. Background

On December 11, 1998, EPA proposed

to approve Clark County's Oxygenated

Gasoline Program as a revision to the

Nevada SIP. 63 FR 68415. EPA has

evaluated the revisions for consistency

with the requirements of the CAA and

EPA regulations. EPA has found that

Clark County's revisions to its

wintertime gasoline oxygenated fuels

program meet applicable EPA

requirements. A detailed discussion of

the SIP revisions and evaluation has

been provided in the December 11, 1998

Federal Register (63 FR 68415), and in

the technical support document (TSD)

available at EPA's Region IX office.

Il. Response to Public Comments

A 30-day public comment period was

provided in the notice of proposed

rulemaking, 63 FR 68415, December 11,

1998. EPA received only one comment

letter, from the Western States

Petroleum Association (WSPA). WSPA's

comments and EPA's responses are set

forth below.

A. Preemption

WSPA commented that Nevada's

3.5% oxygen content requirement is

preempted by section 211(c)(4) of the

Act because EPA has previously

promulgated regulations to prescribe

controls or prohibitions on the oxygen

content of gasoline and by section

211(m)(2) because this section of the Act

requires certain nonattainment areas to

implement an oxygenated gasoline

program with not less than 2.7%

oxygen. WSPA also commented that

Clark County's 3.5% gasoline oxygen

content requirement is preempted under

the doctrines of conflict and field

preemption.

EPA does not believe that Clark

County's 3.5% gasoline oxygen content

requirement is barred by section 211(m)

or preempted by the Act, either

explicitly under section 21 1(c)(4)(A) or

implicitly based on the judicial

doctrines of conflict preemption or field

preemption. EPA's response to WSPA's

preemption comments begins with a

discussion of consistency with section

211(m), followed by a response to the

other preemption arguments.

1. Consistency with Section 211(m)

On March 18, 1997, the Clark County

Commission adopted a resolution

requesting that the Board of Health

adopt the proposed regulations

specifying that the minimum oxygen

content of wintertime gasoline shall be

3.5% oxygen by weight, starting October

1, 1997. Because the Las Vegas Valley

was being designated by EPA as a

serious nonattainment area for carbon

monoxide (CO), the Board of Health

moved to propose the minimum 3.5%

oxygenate regulation to help reach

attainment of the National Ambient Air

Quality Standards for CO.

Section 211(m)(1) requires that certain

states with areas designated

nonattainment for CO implement an

oxygenated gasoline program. This

applies to states containing CO

nonattainment areas with a CO design

value ' of at least 9.5 parts per million

based on 1988 and 1989 data.

Section 211(m) requires that various

states submit revisions to their SIP, and

implement oxygenated gasoline

programs. This section also identifies

certain elements that the state program

must contain. Section 211(m)(2)(A)

identifies the geographic area of the

state program (it must apply throughout

the Consolidated Metropolitan

Statistical Area (CMSA) or the

Metropolitan Statistical Area (MSA))

and the time period of the program (it

must apply during that portion of the

year in which the area is prone to high

ambient concentrations of CO, as

determined by the Administrator, but no

less than four months). Section

211(m)(2)(A)(B) requires that gasoline be

blended to contain not less than 2.7%

oxygen. Under certain circumstances

(section 211 (m)(7)), gasoline must be

1The carbon dioxide design value is a surrogate

measure of attainment status, a measure of progress,

and an indicator of how much concentrations must

be reduced to meet the standard.

blended to contain not less than 3.1%

oxygen. Section 211(m)(5) requires that

EPA promulgate guidelines for states to

implement provisions for marketable

oxygen credits. This section also

authorizes EPA to waive the above

requirements under limited

circumstances.

WSPA argues that, under section

211(m), a state must adopt a 2.7%

standard and may not adopt any other

standard, except as expressly provided

in section 211(m)(7). The requirement

that gasoline be blended to contain "not

less than 2.7 percent oxygen by weight"

would therefore set both a floor and a

ceiling for a minimum oxygen content

that a state must establish. 2 Clark

County's requirement of a 3.5%

minimum oxygen content would violate

the requirements of section 211(m)

under this interpretation. EPA believes

that the better reading of section

211(m)(2) is that, at a minimum, states

must require that gasoline contain 2.7%

oxygen by weight, and that states could

satisfy this by requiring gasoline to

contain 2.7% oxygen or by setting any

higher requirement such as 3.1%

oxygen content, or 3.5% oxygen

content.

Neither the text of section 211(m) nor

the legislative history indicate a clear

Congressional intent to prohibit states

from adopting any oxygen content

requirement greater than 2.7%. This

interpretation would be inconsistent

with the general structure of the Act

because it would restrict the ability of

states to develop programs to meet the

federal ambient air quality standards.

See Title I generally, sections 107, 110,

and 116. Oxygenated gasoline is one of

the simplest and most cost-effective

measures for control of carbon

monoxide. This interpretation would

limit a state's ability to use this strategy

for air quality purposes, as any increase

above the 2.7% minimum would only

be allowed where a severe

nonattainment area had already failed to

meet its statutory deadline for attaining

the NAAQS. Thus, states would be

barred from adopting any oxygen

content requirement above 2.7%, even

where an area needed a more stringent

2

1n support of its claim, WSPA points to the 1996

extension of the CO attainment date for the Las

Vegas area. WSPA argues that in the preamble to

that action EPA identified the 2.7% oxygen content

requirement without expressing that the

requirement for the area was a minimum content

requirement. EPA believes WSPA has read too

much into the preamble's abbreviated listing of

requirements for the area. Nothing in that preamble

indicated an intent to interpret the confines of

section 211 (m)(2). In fact, EPA noted that Clark

County had revised its regulations "to meet the

minimum 2.7% oxygenate by weight requirement of

the CAA." 61 FR41759, 41763 (Aug. 12, 1996).

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standard to attain the NAAQS. Instead,

such a state with a moderate

nonattainment area could not take

action needed to meet the air quality

standard. The area would likely have to

continue to violate the standard until it

had been upgraded to a severe

nonattainment area and had missed the

deadline for severe nonattainment areas

to come into compliance with the

NAAQS, before it could adopt a more

effective control measure designed to

help attain the NAAQS. There is no

indication that Congress intended a

limitation so potentially injurious to

public health and so contrary to rational

planning. This interpretation is also

inconsistent with the principle that a

statute should not be read to preempt

state authority unless it is clear that

Congress intended such a result. See

Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996); Cipollone v. Liggett Group,

Inc., 505 U.S. 504, 518 (1992).

WSPA asserts that the legislative

history of sections 211 (in) and (k)

shows that the 2.7% oxygen content

level was set to ensure fuel neutrality

and opportunity for all oxygenates in

the marketplace. They argue that state

programs requiring greater than 2.7%

oxygen conflict with this goal and

Congress therefore intended to prohibit

them. 3 However, while much of the

legislative history of section 211 (m)

concerns the appropriate level at which

to set the minimum federally mandated

oxygenate requirement in the Clean Air

Act, there is no indication that Congress

intended to bar the states from setting

more stringent oxygenate requirements.

The Chafee-Baucus Statement of the

Senate Managers (discussing the

Conference Committee version of the

bill which Congress adopted as the 1990

Amendments to the CAA) states merely

that "[t]he conference agreement

requires any gasoline sold in a carbon

monoxide nonattainment area to contain

at least 2.7 percent oxygen. * * *"

Senate Committee on Environment and

Public Works, 103d Cong., 1st Sess., A

Legislative History of the Clean Air Act

Amendments of 1990 (hereinafter

"Legislative History") at 896 (1993)

(statement from Senate debate on

October 27, 1990). Senator Simpson and

Congressmen Sharp and Hall all

reiterated a statement that has been

cited in support of the proposition that

section 211(m) bars states from

requiring a higher fuel oxygen content.

"The level of 2.7 percent was chosen in

part to provide more even opportunities

3This concern arises because ethanol is currently

the only oxygenate additive that may lawfully be

blended in gasoline at levels greater than 2.7%

oxygen by weight.

for competition between the two major

oxygenates, methyl tertiary butyl ether,

or MTBE, and ethyl alcohol, or ethanol.

* * * The A dm inistrator may not

discriminate among these different

oxygenates, and should encourage fair

competition among them." Legislative

History at 1171 (statement from Senate

debate on October 26, 1990) (emphasis

added). See also id. at 1216, 1328.

Senator Simpson and others added that

in exercising its waiver authority under

section 211 (m)(3), EPA may not approve

partial waivers of the oxygenate

requirements. "In particular, new 211

(k) and (in) already create several new

kinds of gasoline, and different oxygen

concentrations may already exist under

the various NOx cap provisions of these

two subsections. Further balkanizing of

the gasoline industry-with different

oxygenate concentrations in different

east coast cities, for examplepotentially risks further disruptions and

precision from refiners that may not be

possible." Id. at 1169 (statement from

Senate debate October 26, 1990). All of

these statements address limitations on

EPA's, not states', authority to choose

between oxygenates or set more or less

stringent oxygen content requirements.

These statements simply give no

indication of whether or not Congress

intended to limit states' ability to set

more stringent requirements, which

might be critical to carry out their

responsibility to adopt state

implementation plans to protect the

health of their citizens.

Other statements in the legislative

history suggest that Congress was

primarily concerned about establishing

a preference for one oxygenate over

another as a matter of federal law and

intended to give states flexibility in

their fuels programs. The Senate version

of the bill provided that the wintertime

oxygen content requirements would be

a direct federal mandate on the fuel

producers to sell gasoline with at least

3.1% oxygen content, rather than a

directive to states for their state

implementation plans. S.1630, 103d

Cong. (1990), reprinted in Legislative

History at 4119, 4388. Commenting on

his proposed amendment to substitute

2.7% for 3.1% oxygen content, Senator

Lautenberg stated:

But the question is, should we, as a

Federal initiative, provide an advantage to

one of these fuels over another? I do not

think so.* * * [A 2.7% requirement] would

allow for open and free competition among

the various fuels and provide State and local

officials with the flexibility to decide what

fuels they need in their areas. * * * [The

3.1% requirement] takes away flexibility

from State and local officials. * * * [Quoting

from State and Territorial Air Pollution

Program Administrators (STAPPA) and

Association of Local Air Pollution Control

Officials (ALAPCO) letter] "We believe it is

critically important that any alternative fuels

programs be 'fuel neutral.' This would

provide State and local governments with the

ability to select from a variety of fuels not

just gasohol to address problems (e.g.,

carbon monoxide and ozone) unique to their

jurisdictions."* * * [A]nd most

importantly, as STAPPA noted, [my

amendment] would allow localities to use the

fuels that best meet their particular needs.

t * * USDA notes that four States have

oxygenated fuels program in place: Arizona,

Colorado, Nevada, and New Mexico. * * *

[The 3.1% requirement] would force the

areas that already have oxygenated fuels

programs to scrap them and switch to

gasohol. * * *

Legislative History at 5429-5430

(statement from Senate debate on March

7, 1990) (emphasis added). Senator

Wirth added: "As I understand it, the

amendment offered by the Senator from

New Jersey would not set this issue in

concrete. It would require that

oxygenated fuels sold in these

nonattainment areas contain 2.7 percent

oxygen. If, afew years down the road it

makes sense for a State, or a city like

Denver, to set a higher minim um oxygen

content, that possibility always exists.

All we are saying with this amendment

is that we don't want to set a national

minimum oxygen content standard of

3.1 percent." Id. at 5457 (emphasis

added).

While Senator Lautenberg's 2.7%

oxygen content amendment did not pass

in the Senate, the final CAA set a 2.7%

oxygen content requirement.

Consequently, the arguments advanced

by Senators Lautenberg and Wirth

should be considered indicative of some

of the reasons underlying Congress'

final decision to adopt a 2.7% minimum

standard rather than a 3.1% minimum

standard. As enunciated by Senators

Lautenberg and Wirth, preserving state

flexibility to make choices regarding the

best fuel requirements for a particular

locality was an important motivation for

preferring 2.7% over 3.1%. This goal

hardly comports with an intent to limit

states' ability to adopt oxygen content

requirements more stringent than 2.7%.

Senator Wirth's statement, in particular,

makes it clear that these provisions were

not intended to prevent states from

adopting more stringent requirements.

Nor did Senator Wirth anticipate that

states would have to jump any

particular hurdle before adopting such

requirements. Rather, he stated "that

possibility always exists" if "down the

road it makes sense."

In addition, during the debates over

the Senate bill several senators referred

to the existing oxygenated fuels

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programs that states were already

implementing at that time. At least one

of those programs was more stringent

than 2.7%. Nowhere was it suggested or

noted that the legislation would require

the state to remove that program. In

contrast, Senator Lautenberg explicitly

raised as an objection to the 3.1%

requirement that it would negate

existing state programs mandating a

2.7% oxygen content.

The most reasonable inference from

this legislative history is that Congress

did not want to directly mandate that all

state programs under section 211(m)

require greater than 2.7% oxygen, as

this would severely reduce the

flexibility of states to develop their own

programs and would by act of Congress

directly limit open competition in the

marketplace between oxygenates. 4

Congress rejected a provision that

would require all state oxygenated

gasoline programs under section 211(m)

to require 3.1% oxygen content. Instead,

Congress set the minimum amount

acceptable under section 211(m) at

2.7%, and only mandated that states

adopt standards setting a higher oxygen

content under limited circumstances.

Section 211(m)(7) 5 . While Congress

rejected a federal requirement for an

oxygen content greater than 2.7%, there

is no similar indication that Congress

intended to prohibit states from

adopting such programs where the state

considered it appropriate. To the

contrary, the statements of individual

congressmen indicate an intent to

preserve state flexibility. Section

211(m)'s provision on marketable

oxygen credits also supports this view.

While Congress did not mandate that

states adopt such credit programs, they

are explicitly authorized to do so. This

gives states the flexibility to structure

their programs as desired, including the

ability to adopt credit programs to

promote the use of various oxygenates

4 Similarly, certain members of Congress

indicated that they did not want EPA, the federal

agency implementing section 211 (m), to use its

waiver authority under sections 211 (m) and 211 (k)

in a manner that would limit the marketplace.

5WSPA claims that treating the 2.7% oxygen

content requirement in section 21 1(m)(2) as merely

a floor would effectively read out of the statute

section 211 (m)(7), which requires serious

nonattainment areas to require gasoline with a

minimum oxygen content of 3.1 %. EPA is not

persuaded by WSPA's logic. Because both section

21 1(m)(2) and 21 1(m)(7) are phrased in terms of

minimum requirements, there is no inconsistency

created by allowing states to adopt programs that

meet or exceed these requirements. Section

211(m)(7) still serves a purpose-it requires an

increase in the minimum oxygenate content for

certain serious nonattainment areas that have not

previously exercised their discretion to require

greater oxygen content levels.

even where the minimum oxygen

content is greater than 2.7% .6

Section 211(m) is most reasonably

interpreted as requiring adoption of an

oxygenated gasoline program with any

weight percent oxygen content

requirement that will result in gasoline

being blended to contain not less than

2.7% oxygen by weight. A content

requirement of 2.7% or higher satisfies

this requirement and is authorized by

section 211(m). This interpretation is

consistent with the terms of section

211 (m) and the legislative history

discussed above. It is also consistent

with the Clean Air Act's basic approach

of providing flexibility to the states in

developing state programs to achieve

and maintain the NAAQS. Under the

Act, states have the primary

responsibility for determining the

manner by which to achieve these air

quality standards. See CAA section 116;

Virginia v. EPA, 108 F.3d 1397 (D.C. Cir.

1997), reh'g granted, 116 F.3d 499 (D.C.

Cir. 1997) (modifying so as not to vacate

Part 85 of EPA's final rule). EPA has

relied on this interpretation in

approving SIP revisions for state

programs. See 62 FR 10690 (March 10,

1997) (approval of 3.1% oxygen content

requirement for Denver, CO); 62 FR

49442 (September 22, 1997) (approval of

3.5% oxygen content as a contingency

measure for Spokane, WA).

2. Preemption under the Clean Air Act

WSPA has raised three separate

arguments claiming that state programs

under section 21 1(m) requiring gasoline

blending at levels greater than 2.7% are

preempted under the Act, except where

required under section 211(m)(7). The

first argument is that section

211(c)(4)(A) prohibits such programs

absent a showing of necessity under

section 211(c)(4)(C). The second

argument is that the state program is in

conflict with the Clean Air Act and is

therefore preempted. Finally, it has been

argued that the state program is

preempted because Congress through

the Clean Air Act has occupied the field

of gasoline oxygen content controls.

a. Preemption under section 211(c)(4).

Section 211(c)(4) of the Act is a

provision of general applicability that

expressly prohibits state fuel controls

under specified circumstances. Section

211(c)(1) of the Act authorizes EPA to

6

For example, if a state sets an oxygen content

standard of 3.1% without any provisions for a

credit program, refiners could not meet such a

requirement by using MTBE. If a state included a

credit program, however, refiners could meet a

3.1% oxygen content standard by supplying a

combination of some oxygenated gasoline using

ethanol (at 3.5% oxygen content) and some

oxygenated gasoline using MTBE (at 2.7% oxygen

content).

prescribe a control or prohibition on a

fuel or fuel additive upon a finding that

emissions products from such fuel or

fuel additive may endanger public

health or welfare, or impair emission

control devices or systems.

Section 211(c)(4)(A) prohibits states

from prescribing or attempting to

enforce a control or prohibition

respecting any characteristic or

component of a fuel or fuel additive if

EPA has prescribed a control or

prohibition applicable to the same

characteristic or component under

section 211(c)(1). 7 This prohibition does

not apply if the state control is identical

to EPA's. 8 Section 211(c)(4)(C) provides

that a state may prescribe and enforce

such a nonidentical fuel control or

prohibition if EPA approves the

provision in a state implementation

plan (SIP). EPA may approve the state

control or prohibition in a SIP only if it

is necessary to achieve the NAAQS that

the plan implements.

For the purpose of determining

whether a state gasoline requirement is

preempted under section 211(c)(4)(A),

EPA believes it is appropriate to look at

the federal gasoline requirements

applicable in the area where the state

requirements would apply. For further

discussion see the May 26, 1998 letter

from Margo T. Oge, Director, US EPA

Office of Mobile Sources in the docket

for this action. (See docket file: NVOXY-98-VI.) Clark County is subject to

the conventional gasoline requirements,

not the RFG requirements. 40 CFR

80.70; 40 CFR 80.101(b)(3). Thus, any

preemption under section 211(c)(4)(A)

of Clark County's oxygen content

controls would have to be based on

federal oxygen content requirements

found in the conventional gasoline

regulations. The only conventional

gasoline provision adopted under

section 21 l(c)(1) that directly references

oxygen content is the use of oxygen

content as an input into the Complex

Model, which is used to measure

emissions performance for the exhaust

toxics and NOx performance standards.

As discussed below, however, EPA need

not address the issue of whether the

conventional gasoline provisions

arguably preempt state control of

oxygen in conventional gasoline areas

because EPA believes that section

211(m) authorizes the Clark County

requirement and overrides any potential

preemption under section 211(c)(4).

7State regulation is also prohibited if EPA

publishes a finding in the Federal Register that no

control or prohibition of the characteristic or

component is necessary. 8

The prohibition also does not apply to

California. Section 211 (c)(4)(B).

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Even assuming a state control on

oxygen content would otherwise be

preempted under section 211(c)(4)(A),

in the absence of section 211(m), a

threshold issue is whether the CAA

requires the state to satisfy both the

necessity requirement of section

211(c)(4)(C) as well as the requirements

of section 211(m) for the state

oxygenated gasoline program to be

approved into a SIP. 9 WSPA asserts,

"[I]f Congress intended to exempt CAA

§ 211(m) from the preemption

provisions of § 211(c)(4)(A) it would

certainly have done so expressly within

§ 211(m)." EPA disagrees. EPA believes

section 211(m) itself is an express

statement on the ability of states to

control oxygen content. It seems more

logical to conclude that, given Congress'

intent to provide state flexibility and

ensure attainment of the CO NAAQS, if

Congress has intended states also to

satisfy the conditions of 211(c)(4), it

would have expressly referenced that

section.

EPA believes the most reasonable

interpretation is that those elements of

a state oxygenated gasoline program

within the range of programs specified

by section 211(m) are not subject to the

preemption provisions of section

211(c)(4). However, those elements of a

state oxygenated gasoline program

beyond the range of programs specified

by section 211(m) would be subject to

section 211 (c)(4)(A) and, if preempted,

would be required to show necessity

under section 211(c)(4)(C). 10

The interaction of section 211(c)(4)

and section 211(m) is not addressed in

the text of these provisions, and it is not

discussed in the legislative history. The

structure of section 211, however,

indicates that section 211(m) is the best

indication of Congressional intent

concerning the criteria for SIP approval

of state programs in the designated CO

nonattainment areas. While section

211(c)(4) addresses state fuel control

programs in general, Congress

specifically addressed state oxygenated

gasoline programs in section 211(m).

Congress required that certain states

adopt these programs, and Congress

specified several elements that the

programs must contain. Yet Congress

did not indicate that the section 211(m)

9This issue only arises where a state control

would be preempted under section 211 (c)(4)(A)

(without reference to the requirements of section

211(m)). If the state control would not be preempted

under section 211 (c)(4)(A), then the criteria for

approval of a SIP in section 211 (c)(4)(C) are not

applicable. The SIP revision would have to be

consistent with section 21 l(m) but not section

211 (c)(4)(C). 10 EPA discussed the relationship between 211 (m)

and 211 (c)(4) in approving a CO SIP revision for

New Jersey. See 61 FR 5299 (February 12, 1996).

requirements for a state oxygenated

gasoline program may be subject to

preemption under section 211(c)(4) and,

if preempted, could not be approved

absent a showing of necessity under

section 211(c)(4)(C). It is reasonable to

interpret section 211 such that the

requirement of a necessity showing

under section 211(c)(4)(C) does not

apply to those elements of a state

program that are specified in section

211(m) because the more specific

provisions of section 211 (m) take

precedence over the more general

provisions of section 211(c)(4) for those

elements. Congress required states to

adopt those elements of a program and

submit them as a SIP revision, and

Congress expected that EPA would be

able to approve such a SIP revision

without a further showing of necessity

under section 211(c)(4)(C).

Consider, for example, a state

oxygenated gasoline program that

extends beyond the boundaries of the

CMSA or MSA. Section 211(m) contains

a specific requirement regarding

geographic scope-the program must

include the entire CMSA or MSA.

Requiring oxygenated gasoline within

the CMSA/MSA is clearly within the

range of program elements specified

under section 211(m), and thus such a

state requirement would not be subject

to the preemption and necessity

demonstration provisions of section

211 (c)(4). If section 211(m) and 211(c)(4)

were not interpreted in this manner, a

state program might satisfy this

requirement of section 211(m), but if

oxygen content requirements were

preempted under section 211(c)(4)(A),

the state program might still not be

approvable into the SIP." This would

be contrary to the clear purpose of

section 211(m) that certain states would

have approved into their SIPs and

implement the oxygenated gasoline

requirements specified in section

211(m).

That portion of the state program

requiring oxygenated gasoline beyond

the CMSA or MSA, however, involves a

state gasoline control beyond that which

Congress required or expected in order

to comply with section 211(m). Hence,

llFor example, preempted state fuel controls may

not be approved for a waiver unless they are

necessary for achieving a NAAQS. As a result,

waivers for fuel measures can only be justified for

areas where emission reductions are necessary for

a NAAQS. The 21 1(m) program, however, requires

adoption of the oxygen control throughout the MSA

or CMSA, irrespective of need. It is conceivable that

the area needing CO reductions to achieve the

NAAQS is smaller than the MSA or CMSA. Thus

a state might find itself required by 211(m) to adopt

a control for the entire MSA or CMSA, and yet

unable to justify a waiver under 211 (c)(4) for an

oxygen control applicable to the entire area.

such a provision should be subject to

the requirements of section 211(c)(4)(C)

if the state program would otherwise be

preempted under section 211(c)(4)(A).

The structure of section 211 does not

indicate that oxygenated gasoline

requirements beyond the geographic

area specified in section 211(m) should

be approvable without restriction under

section 211 (c)(4)(C).

The elements of geographic scope and

control period are clearly specified in

section 211(m) as a single area or time

period. 12 However, the oxygen content

requirement is not limited to a single

specified value. Congress did not

specify, for example, that the state

program must require exactly 2.7%

oxygen content, nor, as discussed above,

did Congress prohibit states from

establishing a larger weight percent

requirement. Instead Congress specified

that the SIP revisions must contain

provisions requiring that gasoline be

blended to contain not less than 2.7%

oxygen by weight.

Arguably, the oxygen content

requirements of section 211(m) could be

read in the same manner as the

geographic scope and control period

provisions. Under this approach, a state

requirement that is set at 2.7% would

not be subject to the preemption

provisions of section 211(c)(4),

including the necessity showing under

section 211(c)(4)(C). However, for any

requirement above 2.7%, the state

would have to show that the

requirement is necessary, if the state

program would otherwise be preempted

under section 211(c)(4)(A). 13

An alternative interpretation is that

the oxygen content requirements of

section 211 (m)(2) call for any one of a

range of minimum concentrations, and

not one specific level. Any content

requirement that results in gasoline

containing not less 2.7% oxygen is

within the scope of programs authorized

and envisioned by Congress under

section 211(m). Under this

interpretation, a state requirement of

greater than 2.7% oxygen content would

not be subject to preemption under

section 211(c)(4) and the state would

12 Section 211(m)(2) provides that the

requirements shall apply during the portion of the

year in which the area is prone to high ambient

concentrations of CO, which shall be as determined

by the Administrator. The Administrator may not

select a time period of less than four months, except

under limited specified circumstances. For any

given area, the Administrator would determine a

specific time period in which the area is prone to

high ambient concentrations of CO. 13 Section 211 (c)(4)(C) would not apply under this

interpretation where a state program was required

to require at least 3.1% oxygen content under

section 211(m).

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not need to show necessity under

section 211(c)(4)(C).

EPA believes that the latter

interpretation better implements

Congressional intent. The text of section

211(m)(2) is reasonably read to envision

a range of oxygen contents, whereas the

geographic scope and control period are

specifically identified as a single area or

time period. The legislative history

indicates that Congress intended to

provide flexibility to states regarding

oxygen content, and did not want to

restrain that flexibility by setting a

federal mandate for a specific oxygen

level that states must require. While

Congress deliberately rejected a federal

mandate that would reduce the market

opportunities for various oxygenates, it

did this with the goal of preserving state

flexibility, not limiting it, and the latter

interpretation is consistent with this

goal. Moreover, the overall structure

established by the Act supports this

interpretation, as the Act assigns states

the primary responsibility to adopt

programs to achieve clean air goals and

preserves flexibility for the states in

developing the programs needed to

satisfy this role. This interpretation is

also consistent with the general

principle of avoiding a statutory

interpretation that preempts state action

unless Congressional intent to do so is

clear. See Medtronic, Inc. v. Lohr, 518

U.S. 470, 485 (1996); Cipollone v.

Liggett Group, Inc., 505 U.S. 504, 518

(1992); Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947). Thus, EPA

believes that a state is not preempted

under the provisions of section 211(c)(4)

from adopting a weight percent oxygen

requirement greater than 2.7% under a

section 21 1(m) state program, within the

geographic scope and control period

specified in section 211(m), and that

EPA may approve a SIP revision to

implement such a section 211(m)

program without a showing of necessity

under section 211(c)(4)(C).

b. Conflict preemption. WSPA

commented that Clark County's 3.5%

oxygen rule is preempted under the

doctrine of conflict preemption because

it hinders the accomplishment of a

federal objective-namely EPA's

"charge" under the waiver provisions of

section 21 1(m)(3) to "ensur(e) that the

areas with the greatest need for

oxygenated gasoline receive priority in

obtaining such gasoline." WSPA has not

documented any problem with the

supply or availability of compliant

gasoline or oxygenates. In fact, refiners

have been providing gasoline containing

a minimum 3.5% oxygen content for at

least two winter seasons, and there are

no indications of a lack of supply of

oxygenates in other areas subject to

section 211(m). Thus, there do not

appear to be concerns under 211(m)(3).

Likewise, WSPA has not supported its

conflict preemption assertion.

A federal statute implicitly overrides

a state law when the state law is in

actual conflict with the federal law. This

occurs when it is impossible for a

private party to comply with both the

state and federal requirements, or where

the state law stands as an obstacle to the

accomplishment and execution of the

full purposes and objectives of

Congress. Freightliner Corp. v. Myrick,

514 U.S. 280, 287 (1995) (quoting

English v. General Electric Co., 496 U.S.

72, 78-79 (1990) and Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)).

Contrary to WSPA's comments, EPA has

not seen any evidence indicating that

the Clark County provisions for

oxygenated gasoline would lead to

either of these results. First, there is no

impossibility here; it is practically and

legally possible to blend and supply

gasoline that meets the federal

conventional gasoline requirements and

that has an oxygen content of 3.5%.

Second, EPA does not believe that the

3.5% oxygen content requirement

would be an obstacle to the

accomplishment and execution of

Congress' purposes. Here, a primary

objective of Congress is that gasoline

meet all of the applicable requirements

specified in section 211, including the

oxygenated gasoline provisions of

section 211(m), the summertime RVP

requirements of section 211(h), and the

conventional gasoline requirements of

section 211 (k)(8). A state program

requiring greater than 2.7% oxygen

content is not an obstacle to

accomplishing this Congressional

objective; rather, it is consistent with

the requirements of section 211(m) and

the goals of Congress embodied in this

provision. By providing that states must

set an oxygen content at least as

stringent as 2.7%, section 211(m)

contemplates that states may require

higher oxygen contents. In addition,

such higher oxygen content

requirements do not conflict with the

federal summertime RVP or

conventional gasoline requirements

applicable in Clark County. 14 There is

no evidence that the Clark County

requirement would conflict with or

interfere with the specifications for

annual oxygen content limits in the

conventional gasoline program, or

interfere with refiners' or importers

14 1ssues concerning conflict with the

requirements or goals of the federal reformulated

gasoline program need not be addressed to evaluate

the Clark County program.

ability to produce complying

conventional gasoline.

c. Field preemption. WSPA further

commented that Clark County's 3.5%

oxygen requirement is preempted under

the doctrine of field preemption. WSPA,

however, does not elaborate on this

claim.

A state program is preempted under

field preemption where Congress has

implicitly indicated an intent to occupy

a given field to the exclusion of state

law. "Such a purpose properly may be

inferred where the pervasiveness of the

federal regulation precludes

supplementation by the States, where

the federal interest in the field is

sufficiently dominant, or where the

object sought to be obtained by federal

law and the character of obligations

imposed by it * * * reveal the same

purpose." Schneidewind v. ANR

Pipeline Co., 485 U.S. 293, 300 (1987)

(quoting Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947).

Here, neither section 211(m) nor

section 211 as a whole establishes a

comprehensive federal presence.

Instead, the fuels programs under

section 211 provide a number of federal

requirements but also explicitly

preserve a role for the states in

regulating fuels. Section 211(c)(4)

explicitly preempts state action, but

only under certain circumstances, and

provides an exemption from preemption

under section 211(c)(4)(C). Section

211(m) requires states, not the federal

government, to adopt oxygenated

gasoline programs. As discussed above,

state programs requiring greater than

2.7% oxygen content are within the

range of programs authorized under

section 211(m), and Congress did not

intend to prohibit them. Thus, federal

regulation here is not so pervasive as to

preclude supplementation by states, nor

is the federal interest in the field

sufficiently dominant to preempt state

action.

State programs under section 211(m)

requiring greater than 2.7% oxygen

content are therefore not preempted

based on either conflict or field

preemption.

d. Preemption under211J). WSPA

also appears to argue that EPA's

authority to grant waivers from the

substantially similar prohibition of

section 211(f)(1), and its authority to

control or ban fuel additives under

section 211(c)(1), mean that only EPA

can act to allegedly ban the use of a fuel

additive such as MTBE, not states. In

addition, WSPA claims that EPA must

satisfy the requirements of section

211(c)(1) before it could approve

Nevada's SIP provision.

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EPA has explained above that the

Clark County provision is neither

expressly prohibited under section

211 (c)(4), nor implicitly prohibited

under conflict or field preemption.

EPA's authority under sections 211(c)(1)

and (f)(4) does not provide an additional

basis for preemption of state fuel

controls. Congress indicated expressly

in section 211(c)(4) what state fuel

controls are prohibited, and there is no

reason to believe EPA's authority to act

under section 211(c)(1) and (f)(4)

indicates a Congressional intent to

preempt state fuel controls not

otherwise preempted under section

211(c)(4). In addition, EPA's authority to

act on a state SIP submission is not

based on or limited by section 211(c)(1).

Nothing in section 211(c) or (in) or

section 110 indicates that section

211(c)(1) applies to EPA's action on a

state SIP submission involving a state

oxygenated gasoline program. Such an

interpretation would run counter to the

central structure of the Act, by limiting

a state's SIP measures to only those

provisions that EPA could or would be

able to adopt under it's own federal

authority.

B. Regulatory Negotiation Agreement

WSPA commented that EPA's

approval of Clark County's SIP revision

"violates the spirit, if not the letter

* * * " of an Agreement in Principle

entered into in August 1991 between

EPA, environmental groups, state and

local agencies, and industry. WSPA

claims the parties agreed that during the

control periods for CO nonattainment

areas the required oxygenate level in

gasoline would be set at 2.7 percent by

weight. WSPA also claims that EPA

agreed on how to limit components in

conventional gasoline areas and to

invoke 211(c) to preempt state

regulation of fuel. The 1991 Agreement

in Principle was an agreement on the

underlying principles to be proposed for

implementation of the then-new

provisions of sections 211(k) and

211(m). Nothing in the Agreement

suggests that states subject to 211(m) are

prohibited from requiring oxygen

content levels greater than the statutory

minimum. The Agreement outlines the

minimum oxygen content levels to be

proposed for reformulated gasoline

(RFG) and describes the ranges of

oxygen content that will be deemed to

comply with NOx standards in RFG

areas. These provisions both applied to

the "simple model" for certifying RFG.

These provisions are not informative for

this rulemaking because: (1) Las Vegas

is not an RFG area; (2) nothing in the

provisions states that higher oxygen

content levels are prohibited; and, (3)

the simple model described in these

provisions has been replaced by the

"complex model" throughout the

country. 15 See 40 CFR 80.42(c)(2).

The Agreement also described the

oxygenated gasoline guidelines that EPA

would recommend. This section of the

Agreement highlighted state flexibility

by stating, "While recognizing state

discretion, EPA guidelines shall

recommend a credit program. * * *"

The elements of the recommended

credit program do not suggest that states

be limited to the statutory minimum

requirements of 211(m). Likewise

nothing in the Agreement suggests that

211(c) preempts state compliance with

211(m) or that 211(c) would be used in

any way beyond that provided by the

statute.

C. Commerce Clause of the U.S.

Constitution

Finally, WSPA commented that Clark

County's 3.5% gasoline oxygen content

requirement is barred by the Commerce

Clause. WSPA argues that the Clark

County Board of Health's purpose for

enacting the requirement is unclear and

that the Board may have enacted the

requirement with the ulterior motive of

"protect(ing) economic interests of

ethanol providers within the state.

* * * " The record clearly indicates that

the Board's purpose in adopting the

requirement is to address Clark County's

carbon monoxide air quality problem

and the attendant health risks which it

poses to the local population. WSPA has

not submitted any documentation to the

contrary and there is no basis for EPA

to believe that the Board's motives were

other than those stated in the record.

WSPA has also failed to submit

documentation to support its assertion

that the 3.5% oxygen content

requirement imposes an unreasonable

burden on interstate commerce. Fuel

suppliers in Clark County have been

complying with the 3.5% oxygen

requirement for a number of years first

voluntarily and, since October 1997,

pursuant to the Clark County rule.

IV. EPA Action

EPA is finalizing action to approve

the above revisions for inclusion into

the Nevada SIP. EPA is approving the

submittal under section 110(k)(3) as

meeting the requirements of section

110(a) and Part D of the CAA. This

15 The complex model includes ranges of fuel

components that the model can accept for

predicting the emissions that will result from use

of a particular fuel. The range for oxygen content

that the model can accept is 0.0 to 4.0 percent by

weight. See 40 CFR 80.45(f)(1). Clark County's 3.5%

requirement fits within the range limits of the

model.

approval action will incorporate Clark

County's revisions into the federally

approved SIP. The intended effect of

approving these revisions is to regulate

emissions of CO in accordance with the

requirements of the CAA.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order (E.O.)

12866, Regulatory Planning and Review.

B. Executive Order 12875

Under Executive Order 12875,

Enhancing the Intergovernmental

Partnership, EPA may not issue a

regulation that is not required by statute

and that creates a mandate upon a State,

local or tribal government, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by those governments, or

EPA consults with those governments. If

EPA complies by consulting, Executive

Order 12875 requires EPA to provide to

the Office of Management and Budget a

description of the extent of EPA's prior

consultation with representatives of

affected State, local and tribal

governments, the nature of their

concerns, copies of any written

communications from the governments,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 12875 requires EPA to

develop an effective process permitting

elected officials and other

representatives of State, local and tribal

governments "to provide meaningful

and timely input in the development of

regulatory proposals containing

significant unfunded mandates."

Today's rule does not create a mandate

on State, local or tribal governments.

The rule does not impose any

enforceable duties on these entities.

Accordingly, the requirements of

section 1(a) of E.O. 12875 do not apply

to this rule.

C. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) is

determined to be "economically

significant" as defined under E.O.

12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

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preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency. This rule is

not subject to E.O. 13045 because it does

not involve decisions intended to

mitigate environmental health or safety

risks.

D. Executive Order 13084

Under Executive Order 13084,

Consultation and Coordination with

Indian Tribal Governments, EPA may

not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA's

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments "to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities." Today's rule does not

significantly or uniquely affect the

communities of Indian tribal

governments. Accordingly, the

requirements of section 3(b) of E.O.

13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements 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 not-for-profit enterprises, and

small governmental jurisdictions. This

final rule will not have a significant

impact on a substantial number of small

entities because SIP approvals under

section 110 and subchapter I, part D of

the Clean Air Act do not create any new

requirements but simply approve

requirements that the State is already

imposing. Therefore, because the

Federal SIP approval does not create

any new requirements, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. Moreover, due

to the nature of the Federal-State

relationship under the Clean Air Act,

preparation of flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of state action.

The Clean Air Act forbids EPA to base

its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42

U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

("Unfunded Mandates Act"), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated annual costs to

State, local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated annual costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

G. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a

"major" rule as defined by 5 U.S.C.

804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by August 2, 1999.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Incorporation by reference,

Intergovernmental relations, Reporting

and recordkeeping requirements.

Dated: May 19, 1999.

Laura Yoshii,

A cting Regional A dm inistrator, Region IX.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart DD-Nevada

2. Section 52.1470 is amended by

adding paragraph (c)(38)to read as

follows:

§ 52.1470 Identification of plan.

(c) * * *

(38) On August 7, 1998, regulations

for the following Health District were

submitted by the Governor's designee.

(i) Incorporation by reference.

(A) Clark County Health District.

(1) Section 53 adopted on September

25, 1997.

[FR Doc. 99 13805 Filed 6 1 99; 8:45 am]

BILLING CODE 6560-50-P

29580

HeinOnline -- 64 Fed. Reg. 29580 1999