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Citation: 64 Fed. Reg. 29573 1999
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### Federal Register/Vol. 64, No. 105/Wednesday, June 2, 1999/Rules and Regulations

meaningful and timely input in the development ofregulatory 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) ofE.O. 13084 do not apply
to thisrule.

E.RegulatoryFlexibilityAct

The Regulatory Flexibility Act, 5 U.S.C. 600 etseq., generally requires an agency to conduct aregulatory flexibility analysis ofany 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 ofsmall entities. Small entities include small businesses, small not-forprofit enterprises, and small governmentaljurisdictions. 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 ofthe RFA. Furthermore, this action will not have a significant impact on a substantial number ofsmall entities because these findings under section 110 and subchapter I,part D ofthe Act do not, in-and-of-themselves, directly impose any new requirements on small entities. See Mid-TexElectric 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 therequirements ofthe 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, Icertify that this action will not have a significant economic impact on a substantial number ofsmall entities.

F. UnfundedMandates

Under section 202 ofthe 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 aFederal 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 oftherule 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 submitthe required SIP for the DFW area do not, in-and-ofthemselves constitute aFederal mandate, because they do not impose any enforceable duty on any entity. In addition, the Act does not permit EPA
to consider the type ofanalyses 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 ofTexas, which is not a small government.
G. Submission to Congress andthe ComptrollerGeneral

The Congressional Review Act (CRA), 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit arule report, which includes a copy ofthe rule,to each House ofthe Congress and to the Comptroller General oftheUnited States. Section 808 allows the issuing agency to make arule effective sooner than otherwise provided by the CRA ifthe agency makes a good cause findingthat notice and public procedure is impracticable, unnecessary, or contrary to public interest. This determination must be supported by abriefstatement, 5 U.S.C. 808(z). As stated previously, EPA has made agood cause finding, including the reasons therefor, and established an effective date ofMay 13, 1999, the date ofsignature. The EPA will submit a report containing this rule and other required information to theU.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. This action is not

a "major" rule as defined by 5 U.S.C. 804(2).

H. PaperworkReductionAct

This rule does not contain any information requirements which require OMB approval under the Paperwork Reduction Act (44U.S.C. 3501 etseq.)

L Petitions forJudicial Review
Under section 307(b)(1) oftheAct, petitions forjudicial review ofthis action must be filed in theUnited States Court ofAppeals for the appropriate circuit by August 2, 1999. Filing a petition forreconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicialreview 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).
ListofSubjects in 40 CFRPart52

Environmental protection, Air pollution control, Carbon Monoxide, Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

Authority:42U.S.C. 7401 etseq. Dated:May 13, 1999. GreggA. Cooke, RegionalAdministrator, Region6. [FR Doc. 99 13806 Filed 6 1 99; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40CFR Part 52 [NV-034-0016; FRL-6350-5]
Approvaland 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 ofrevisions to the Nevada State Implementation Plan (SIP) proposed in the Federal Register on December 11, 1998. This action specifically includes approval ofrevisions to Clark County Health District's wintertime oxygenated fuels program. This approval action will incorporate theserevisions into the federally approved SIP. The intended effect ofapproving theserevisions is to regulate emissions ofcarbon monoxides (CO) in accordance with the requirements ofthe Clean AirAct, as amended in 1990 (CAA or the Act). Thus,EPA is finalizing the approval of theserevisions into the Nevada SIP under provisions ofthe 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 ofthe SIPrevision and EPA's evaluation report are available for public inspection at EPA's Region 9 office during normal business hours. Copies ofthese documents are 

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also available for inspection at the following locations: Nevada Division ofEnvironmental

Protection, Bureau ofAir 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 ofHealth, (Clark County), Air Pollution Control (APC) Section 53, OxygenatedGasolineProgram(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 arevision to the Nevada SIP. 63 FR68415. EPAhas evaluated the revisions for consistency with therequirements ofthe 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 FR68415), and in the technical support document (TSD) available at EPA's Region IX office.

Il. Response toPublic Comments

A 30-day public comment period was provided in the notice ofproposed rulemaking, 63 FR 68415, December 11, 1998. EPAreceived 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) ofthe Act because EPAhas previously promulgated regulations to prescribe controls or prohibitions on the oxygen content ofgasoline and by section 211(m)(2) because this section ofthe 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 ispreempted under the doctrines ofconflict 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 theAct, either explicitly under section 211(c)(4)(A) or implicitly based on thejudicial doctrines ofconflict preemption or field preemption. EPA's response to WSPA's preemption comments begins with a discussion ofconsistency 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 aresolution requesting that the Board ofHealth adopt the proposed regulations specifying that the minimum oxygen content ofwintertime gasoline shall be 3.5% oxygen by weight, starting October 1, 1997. Because the LasVegas Valley

was being designated by EPA as a serious nonattainment area for carbon monoxide (CO),the Board ofHealth moved to propose the minimum 3.5% oxygenate regulation to help reach attainment oftheNational 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 ' ofat 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 ofthe
state program (itmust apply throughout the Consolidated Metropolitan Statistical Area (CMSA) or the Metropolitan Statistical Area (MSA)) and the timeperiod ofthe program (it
must apply during that portion ofthe year in which the area is prone to high ambient concentrations ofCO, 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 ofattainment status, a measure ofprogress, and an indicator ofhow much concentrations must be reduced to meetthe standard. blended to contain notless 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 byweight" would therefore set both a floor and a ceiling for a minimum oxygen content that a state must establish. 2Clark County's requirement ofa 3.5% minimum oxygen content would violate the requirements ofsection 211(m) under this interpretation. EPA believes that the better reading ofsection 211(m)(2) is that, at aminimum, states mustrequire that gasoline contain 2.7% oxygen by weight, and that states could satisfy thisby 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 ofsection 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 oftheAct because it would restrict the ability of
states to develop programs to meet the federal ambient air quality standards. See TitleI generally, sections 107, 110, and 116. Oxygenated gasoline is one of the simplest and most cost-effective

measures for control ofcarbon 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

21n support ofitsclaim,WSPApoints tothe 1996 extension ofthe CO attainment date for theLas Vegas area. WSPA argues thatin thepreamble to thataction EPAidentified the 2.7% oxygen content requirement without expressingthat the requirement for the area was aminimum content requirement. EPAbelieves WSPA has read too much into thepreamble's abbreviated listingof requirements for the area. Nothingin thatpreamble indicated an intent to interpret the confines of section 211(m)(2).In fact,EPA noted thatClark County hadrevised 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 asevere 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. LiggettGroup, Inc., 505 U.S. 504, 518 (1992).

WSPA asserts that the legislative history ofsections 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 ofthe legislative history ofsection 211(m)

concerns the appropriate level atwhich
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 ofthe Senate Managers (discussing the Conference Committee version ofthe 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
atleast 2.7percent oxygen. * * *" Senate Committee on Environment and Public Works, 103d Cong., 1st Sess., A Legislative History ofthe 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 oftheproposition that section 211(m) bars states from requiring ahigher fuel oxygen content. "The level of2.7percent 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. * * *TheAdm inistrator maynot discriminate among these different oxygenates, and should encourage fair competition amongthem." Legislative History at 1171 (statement from Senate debate on October 26, 1990) (emphasis added). See alsoid. 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 ofthe oxygenate requirements. "In particular, new 211 (k)and (in) already create several new kinds ofgasoline, and different oxygen concentrations may already exist under the various NOxcap provisions ofthese
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 notbe 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 setmore or less stringent oxygen content requirements. These statements simply give no indication ofwhether 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 oftheir citizens.

Other statements in the legislative history suggest that Congress was primarily concerned about establishing

apreference for one oxygenate over another as amatter offederal law and intended to give states flexibility in their fuels programs. The Senate version ofthebillprovided that the wintertime oxygen content requirements would be

adirect 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), reprintedin Legislative History at4119, 4388. Commenting on his proposed amendment to substitute 2.7% for 3.1% oxygen content, Senator Lautenberg stated:

But thequestion is, should we, asa Federalinitiative,provide an advantage to
one ofthese fuels over another? Ido not think so.* * *[A2.7% requirement] would allow for open and free competition among the various fuels andprovideStateandlocal officialswith theflexibilitytodecidewhat fuels they needin theirareas.* * *[The 3.1% requirement] takes away flexibility from Stateand local officials. * * *[Quoting from State and Territorial Air Pollution Program Administrators (STAPPA)and Association ofLocal Air Pollution Control Officials (ALAPCO) letter] "We believe it is critically importantthat any alternative fuels programs be 'fuel neutral.' This would provideStateandlocalgovernmentswith the abilitytoselect from a varietyof fuels not just gasohol to addressproblems (e.g., carbon monoxide and ozone)unique to their jurisdictions."* * * [A]nd most importantly, asSTAPPA noted, [my amendment] would allowlocalitiesto use the fuels thatbestmeet their particular needs.

t * *USDA notes that four States have oxygenated fuelsprogram inplace: Arizona, Colorado, Nevada, and New Mexico. * * * [The 3.1% requirement] would forcethe

areasthat 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 Iunderstand 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 2.7percent oxygen. If, afew yearsdown the roadit makes sense foraState,or a city like Denver, to seta higherminimum oxygen content,thatpossibilityalwaysexists. All we aresayingwith thisamendment isthatwe don'twantto setanational minimum oxygen contentstandardof 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 ofsome ofthereasons 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' abilityto adopt oxygen content requirements more stringent than 2.7%. SenatorWirth's statement, in particular, makes it clear thatthese provisions were notintended to prevent states from adoptingmore stringent requirements. Nor did Senator Wirth anticipate that
states would have tojump 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 ofthose 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, SenatorLautenberg explicitly raised as an objection to the 3.1% requirement that itwould 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
stateprograms under section 211(m) require greater than 2.7% oxygen, as this would severely reduce the flexibility ofstates to develop their own programs and would by act ofCongress directly limit open competition in the marketplace between oxygenates. 4 Congress rejected aprovision that would require all state oxygenated gasoline programsunder 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 ahigher 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 ofindividual 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 ofvarious oxygenates

4Similarly, certain members ofCongress indicated that they did notwant EPA, the federal
agency implementing section 211 (m), to useits waiver authority under sections 211 (m)and 211(k) in amanner that would limitthe 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 ofthe statute section 211(m)(7), which requires serious nonattainment areas torequire gasoline with a minimum oxygen content of3.1 %. EPAis 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 orexceed theserequirements. 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 ofan 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 of2.7% or higher satisfies this requirement and is authorized by section 211(m). This interpretation is consistent with the terms ofsection 211 (m) and the legislative history discussed above. It is also consistent with the Clean Air Act's basic approach ofproviding flexibility to the states in developing state programs to achieve and maintain theNAAQS. Under the Act, states have the primary responsibility for determining the

manner by which to achieve these air quality standards. See CAA section 116; Virginiav. EPA, 108 F.3d 1397 (D.C. Cir. 1997), reh'ggranted, 116 F.3d 499 (D.C. Cir. 1997) (modifying so as not to vacate Part 85 ofEPA's final rule). EPA has relied on this interpretation in approving SIP revisions for state programs. See 62 FR 10690 (March 10, 1997) (approval of3.1% oxygen content requirement forDenver, 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 hasraised three separate arguments claimingthat state programs under section 211(m) requiring gasoline blending atlevels 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 ofnecessity 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, ithas been argued that the state program is preempted because Congress through the Clean Air Act has occupied the field ofgasoline oxygen content controls.

a. Preemptionundersection 211(c)(4). Section 211(c)(4) ofthe Act is a provision ofgeneral applicability that expressly prohibits state fuel controls under specified circumstances. Section 211(c)(1) ofthe Act authorizes EPA to

6For example, if a state sets an oxygen content standard of3.1% without any provisions for a credit program, refiners could not meet such a requirement byusing MTBE. Ifa stateincluded a credit program, however, refiners could meet a 3.1% oxygen content standard by supplying a combination ofsome oxygenated gasoline using ethanol (at3.5% oxygen content) and some oxygenated gasoline usingMTBE (at 2.7% oxygen content). prescribe a control or prohibition on a fuel or fuel additive upon a findingthat emissions products from such fuel or fuel additive mayendanger public health or welfare, or impair emission control devices or systems.

Section 211(c)(4)(A) prohibits states fromprescribing or attemptingto enforce acontrol orprohibition respecting any characteristic or component ofa fuel orfuel additive if EPA hasprescribed acontrol or prohibition applicable to the same characteristic or component under section 211(c)(1). 7Thisprohibition does
not apply ifthe state control is identical
to EPA's. 8 Section 211(c)(4)(C) provides that a state may prescribe and enforce such anonidentical fuel control or prohibition ifEPA approves the provision in a state implementation plan (SIP).EPA may approve the state control orprohibition in a SIP only if it is necessary to achieve the NAAQS that the plan implements.

For the purpose ofdetermining whether a state gasoline requirement is preempted under section 211(c)(4)(A), EPA believes itis appropriate to look at the federal gasoline requirements applicable in the area where the state requirements would apply. Forfurther discussion see the May 26, 1998 letter from Margo T. Oge, Director, US EPA Office ofMobile Sources in the docket for this action. (See docket file: NVOXY-98-VI.) Clark County is subject to the conventional gasoline requirements,
notthe RFGrequirements. 40CFR 80.70; 40CFR 80.101(b)(3). Thus, any preemption under section 211(c)(4)(A) ofClark 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 21l(c)(1) that directly references oxygen content is the use ofoxygen content as an input into the Complex Model, which is used to measure emissions performance forthe exhaust toxics and NOx performance standards. As discussed below, however, EPA need
not address the issue ofwhether 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).

7Stateregulation is also prohibited ifEPA publishes afinding in the Federal Register that no control orprohibition ofthe characteristic or component is necessary.

8The prohibition also does notapply to California. Section 211(c)(4)(B). 

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Even assuming a state control on oxygen content would otherwisebe preempted under section 211(c)(4)(A), in the absence ofsection 211(m), a threshold issue is whether the CAA requires the state to satisfyboth the necessity requirement ofsection 211(c)(4)(C) as well as the requirements ofsection 211(m) for the state oxygenated gasoline program to be approved into a SIP.9WSPA 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. EPAbelieves section 211(m) itselfis an express statement on the ability ofstates to control oxygen content. It seems more logical to conclude that, given Congress' intent to provide state flexibility and

ensure attainment ofthe CONAAQS, if Congress has intended states also to satisfy the conditions of211(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 ofprograms specified by section 211(m) are not subject to the preemption provisions ofsection 211(c)(4). However, those elements ofa state oxygenated gasoline program beyond the range ofprograms specified by section 211(m) would be subject to section 211(c)(4)(A) and, ifpreempted, would be required to show necessity under section 211(c)(4)(C). 1 0 The interaction ofsection 211(c)(4) and section 211(m) is not addressed in the text ofthese provisions, and itis not discussed in the legislative history. The structure ofsection 211, however, indicates that section 211(m) is the best indication ofCongressional intent concerning the criteria for SIP approval ofstate 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 statecontrol would bepreempted under section 211 (c)(4)(A) (withoutreference to the requirements ofsection 211(m)). Ifthe statecontrol would notbepreempted under section 211(c)(4)(A), then the criteria for approval ofa SIP in section 211 (c)(4)(C) are not applicable. The SIP revision would have to be consistent with section 21 l(m) butnot section 211 (c)(4)(C).

10EPA 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 ofnecessity under section 211(c)(4)(C). It is reasonable to interpret section 211 such that the requirement ofa necessity showing under section 211(c)(4)(C) does not apply to those elements ofa state program that are specified in section 211(m) because the more specific provisions ofsection 211(m) take precedence over the more general provisions ofsection 211(c)(4) for those elements. Congress required states to adopt those elements ofa program and submitthem as a SIPrevision, and Congress expected that EPA would be able to approve such a SIP revision without afurther showing ofnecessity under section 211(c)(4)(C).

Consider, for example, a state oxygenated gasoline program that extends beyond the boundaries ofthe 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 ofprogram elements specified under section 211(m), and thus such a state requirement would not be subject
to thepreemption and necessity demonstration provisions ofsection 211 (c)(4). Ifsection 211(m) and 211(c)(4)

were not interpreted in this manner, a state program might satisfy this requirement ofsection 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 ofthe 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 statefuel controlsmay not be approved for a waiver unless they are necessary for achieving aNAAQS. As aresult, waivers for fuel measures can only bejustified for

areas where emission reductions are necessary for

a NAAQS. The 211(m) program, however, requires adoption ofthe oxygen control throughout the MSA

or CMSA, irrespective ofneed. It is conceivable that the area needing CO reductions to achieve the NAAQS is smaller than the MSA or CMSA. Thus

a statemight find itselfrequired by 211(m) to adopt

a control for the entire MSA or CMSA, and yet unable to justifya waiverunder 211(c)(4) for an oxygen control applicable to the entire area. such aprovision should be subject to the requirements ofsection 211(c)(4)(C) ifthe state program would otherwise be preempted under section 211(c)(4)(A). The structure ofsection 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 ofgeographic scope and controlperiod are clearly specified in section 211(m) as a single area ortime period. 1 2 However, the oxygen content requirement is not limited to a single specified value. Congress did not specify, for example, thatthe state program mustrequire exactly2.7% oxygen content, nor, as discussed above, did Congress prohibit states from establishing alarger weight percent requirement. Instead Congress specified that the SIPrevisions must contain provisions requiring that gasoline be blended to contain notless than 2.7% oxygen by weight.

Arguably, the oxygen content requirements ofsection 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 at2.7% would
notbe subject to the preemption provisions ofsection 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 otherwisebe 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 ofa range ofminimum concentrations, and
notone specific level.Any content requirement that results in gasoline containing not less 2.7% oxygen is within the scope ofprograms authorized and envisioned by Congress under section 211(m). Under this interpretation, a state requirement of greater than 2.7% oxygen content would
notbe subject to preemption under section 211(c)(4) and the state would

12Section 211(m)(2) provides that the requirements shall apply during the portion ofthe
year in which the area isprone to high ambient concentrations ofCO, which shall be as determined by the Administrator. The Administrator may not select atime period of lessthan 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 ofCO.

13 Section 211 (c)(4)(C) would not apply under this interpretation where a state program was required
to require atleast 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 thatthe latter interpretation better implements Congressional intent. The text ofsection 211(m)(2) is reasonably read to envision

arange ofoxygen contents, whereas the geographic scope and controlperiod 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 flexibilityby setting a federal mandate for a specific oxygen level that states mustrequire. While Congress deliberately rejected a federal mandate that would reduce the market opportunities for various oxygenates, it did this with the goal ofpreserving state flexibility, not limitingit, and the latter interpretation is consistent with this goal. Moreover, the overall structure established by the Act supports this interpretation, asthe 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 ofavoiding 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); Cipollonev. LiggettGroup, Inc., 505 U.S. 504, 518 (1992); Ricev. SantaFeElevatorCorp., 

### 331 U.S. 218, 230(1947). Thus, EPA believes that a state is notpreempted under the provisions ofsection 211(c)(4) from adopting aweight percent oxygen requirement greater than 2.7% under a section 21 1(m) state program, within the geographic scope and controlperiod specified in section 211(m), and that EPA may approve a SIP revision to implement such a section 211(m) program without a showing ofnecessity under section 211(c)(4)(C).

b. Conflict preemption.WSPA commented that Clark County's 3.5% oxygen rule ispreempted under the doctrine ofconflictpreemption because it hinders the accomplishment ofa 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 anyproblem with the supply or availability ofcompliant gasoline or oxygenates. In fact, refiners have been providing gasoline containing

aminimum 3.5% oxygen content for at least two winter seasons, and there are
no indications ofa 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 ofthe full purposes and objectives of Congress. FreightlinerCorp.v. Myrick, 514 U.S. 280, 287 (1995) (quoting English v. GeneralElectric Co.,496 U.S. 72, 78-79 (1990) and Hinesv. 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 ofthese results. First, there is no impossibility here; it ispractically and legally possible to blend and supply gasoline that meets the federal conventional gasoline requirements and that has an oxygen content of3.5%. 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, aprimary objective ofCongress is that gasoline
meet all ofthe applicable requirements specified in section 211, including the oxygenated gasoline provisions of section 211(m), the summertime RVP requirements ofsection 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, itis consistent with the requirements ofsection 211(m) and the goals ofCongress embodied in this provision. Byproviding that states must set an oxygen content atleast 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. 14There is

no evidence thatthe 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 orgoals ofthe federal reformulated gasoline programneed notbe addressed to evaluate the Clark County program. ability to produce complying conventional gasoline.

c. Fieldpreemption.WSPA further commented that Clark County's 3.5% oxygen requirement is preempted under the doctrine offield 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 ofstate law. "Such a purpose properly may be inferred where thepervasiveness ofthe federalregulation 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 ofobligations imposed by it * * * reveal the same purpose." Schneidewindv. ANR Pipeline Co.,485 U.S. 293, 300 (1987) (quotingRice v. SantaFeElevatorCorp., 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 offederal requirements but also explicitly preserve a rolefor the states in regulating fuels. Section 211(c)(4) explicitly preempts state action, but onlyunder 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 ofprograms authorized under section 211(m), and Congress did not intend to prohibit them. Thus, federal regulation here is not so pervasive asto preclude supplementation by states, nor is the federal interest in the field sufficiently dominant to preempt state action.

Stateprograms under section 211(m) requiring greater than 2.7% oxygen content are therefore not preempted based on either conflict or field preemption.

d. Preemptionunder211J). 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 orban fuel additives under section 211(c)(1), mean that only EPA

can act to allegedly ban the use ofafuel additive such as MTBE, not states. In addition, WSPA claims that EPAmust satisfy the requirements ofsection 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 ofstate fuel controls. Congress indicated expressly in section 211(c)(4) what state fuel controls areprohibited, 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 ofthe 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. RegulatoryNegotiationAgreement

WSPA commented that EPA's approval ofClark County's SIP revision "violates the spirit,if not the letter * * * " ofan Agreement in Principle entered into in August 1991 between EPA, environmental groups, state and local agencies, and industry.WSPA claims theparties agreed that during the control periods for CO nonattainment

areas therequired oxygenate level in gasoline would be set at 2.7percent 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 offuel. The 1991 Agreement in Principle was an agreement on the underlying principles to be proposed for implementation ofthe then-new provisions ofsections 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 thathigher oxygen content levels are prohibited; and, (3) the simple model described in these provisions has been replaced bythe "complex model" throughout the country. 1 5See 40 CFR 80.42(c)(2). The Agreement also described the oxygenated gasoline guidelines thatEPA would recommend. This section ofthe Agreement highlighted state flexibility by stating, "While recognizing state discretion, EPA guidelines shall recommend a credit program. * * *"
The elements ofthe recommended credit program do not suggest that states be limited to the statutory minimum requirements of211(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 bythe
statute.
C. Commerce Clauseofthe U.S. Constitution

Finally, WSPA commented that Clark County's 3.5% gasoline oxygen content requirement is barred bythe Commerce Clause. WSPA argues that the Clark County Board ofHealth'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 therecord. 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 anumber ofyears 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 ofthe CAA. This

15Thecomplex model includes ranges offuel components that the model can accept for predicting the emissions that will result from use of aparticular fuel. The range foroxygen content that the model can accept is 0.0 to 4.0percent by weight. See 40 CFR 80.45(f)(1). ClarkCounty's 3.5% requirement fits within the range limits ofthe 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 ofCO in accordance with the requirements ofthe CAA.

V. Administrative Requirements

A. Executive Order12866

The Office ofManagement and Budget (OMB)has exempted this regulatory action from Executive Order (E.O.) 12866, Regulatory Planning and Review.

B. Executive Order12875

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 ofManagement and Budget a description ofthe extent ofEPA's prior consultation with representatives of affected State, local and tribal governments, the nature oftheir
concerns, copies ofany 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 ofState, local and tribal governments "to provide meaningful and timelyinput in the development of regulatory proposals containing significant unfunded mandates." Today'srule does not create a mandate

on State, local ortribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, therequirements of section 1(a) ofE.O. 12875 do not apply
to this rule.

C.Executive Order13045

Protection ofChildren 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 hasreason to believe mayhave 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 otherpotentially 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 Order13084

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue aregulation 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. IfEPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section ofthe preamble to the rule, a description ofthe extent ofEPA's prior consultation with representatives ofaffected tribal governments, a summary ofthe nature oftheir concerns, and a statement supporting the need to issue theregulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives ofIndian 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 ofIndian tribal governments. Accordingly, the requirements ofsection 3(b) ofE.O. 13084 do not apply to this rule.

E.RegulatoryFlexibilityAct

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct

aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements unless the agency certifies that therule will not have a significant economic impact on

a substantial number ofsmall entities. Small entities include smallbusinesses, smallnot-for-profit enterprises, and small governmentaljurisdictions. This final rule will nothave a significant impact on a substantial number ofsmall 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 ofsmall entities. Moreover, due
to the nature oftheFederal-State relationship under the Clean Air Act, preparation offlexibility analysis would constitute Federal inquiry into the economic reasonableness ofstate action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. UnionElectricCo., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. UnfundedMandates

Under section 202 ofthe Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, EPAmust prepare abudgetary 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 oftherule 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 Congressandthe ComptrollerGeneral

The Congressional Review Act, 5 U.S.C. 801 etseq., 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 arule report, which includes a copy ofthe rule,to each House ofthe Congress and to the Comptroller General oftheUnited States. EPA will submit a report containing this rule and other required information to theU.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. This rule is not a "major" rule as defined by 5 U.S.C. 804(2).

H. Petitions forJudicial Review

Under section 307(b)(1) ofthe Clean AirAct, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by August 2, 1999. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis rule for the
purposes ofjudicial review nor does it extend the time within which a petition forjudicialreview 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).)

ListofSubjects in 40 CFRPart52

Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.

Dated:May 19, 1999. LauraYoshii, ActingRegionalAdministrator, RegionIX.

Part 52, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:

PART52-[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority:42U.S.C. 7401 etseq. Subpart DD-Nevada

2. Section 52.1470 is amended by addingparagraph (c)(38)to read as follows: §52.1470 Identificationof plan.

(c) * * * (38) On August 7, 1998, regulations for the following Health District were submitted by the Governor's designee.

(i) Incorporation byreference. (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 

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