68114 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Proposed Rules

process of developing the proposed

regulation.

This proposed rule will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

E.O. 13132, because it merely acts on a

state rule implementing a federal

standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this proposed 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 proposed rule will not have a

significant impact on a substantial

number of small entities because SIP

actions under section 110 and

subchapter I, part D of the Clean Air Act

do not create any new requirements but

simply act on requirements that the

State is already imposing. Therefore,

because the Federal SIP action 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

proposed action 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 proposed Federal

action acts on 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. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

EPA believes that VCS are

inapplicable to today’s proposed action

because it does not require the public to

perform activities conducive to the use

of VCS.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Ozone, Reporting and recordkeeping

requirements, Volatile organic

compounds.

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

Dated: October 20, 2000.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 00–29064 Filed 11–13–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA 210–0173; FRL–6897–1]

Approval and Promulgation of

Implementation Plans; California State

Implementation Plan Revision, Lake

County Air Quality Management

District, Monterey Bay Unified Air

Pollution Control District, Bay Area Air

Quality Management District,

Sacramento Metropolitan Air Quality

Management District, San Joaquin

Valley Unified Air Pollution Control

District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing a limited

approval and limited disapproval of

revisions to the California State

Implementation Plan (SIP) which

concern the control of volatile organic

compound (VOC) emissions from the

transfer of gasoline to storage tanks or to

vehicle tanks. EPA is proposing a

limited approval and limited

disapproval without potential sanctions

of Lake County Air Quality Management

District (LCAQMD) Section (Rule) 439.5

and Monterey Bay Unified Air Pollution

Control District (MBUAPCD) Rule 1002.

EPA is also proposing a limited

approval and limited disapproval with

potential sanctions of Bay Area Air

Quality Management District

(BAAQMD) Rule 8–7, Sacramento

Metropolitan Air Quality Management

District (SMAQMD) Rule 449, and San

Joaquin Valley Unified Air Pollution

Control District (SJVUAPCD) Rule 4622.

The intended effect of the limited

approvals and limited disapprovals is to

regulate emissions of VOCs in

accordance with the requirements of the

Clean Air Act, as amended in 1990

(CAA or the Act). EPA’s final action on

this proposed rule will incorporate

these rules into the federally approved

SIP.

DATES: Comments must be received in

writing on or before December 14, 2000.

ADDRESSES: Mail comments to Andrew

Steckel, Rulemaking Office Chief (AIR–

4), Air Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105.

You can inspect copies of the

submitted rule revisions and EPA’s

technical support documents (TSDs) at

our Region IX office during normal

business hours. You may also see copies

of the submitted rule revisions at the

following locations:

Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Proposed Rules 68115

1Among other things, the pre-amendment

guidance consists of those portions of the proposed

post-1987 ozone and carbon monoxide policy that

concern RACT, 52 FR 45044 (November 24, 1987);

Issues Relating to VOC Regulation Cutpoints,

Deficiencies, and Deviations, Clarification to

Appendix D of November 24, 1987 Federal Register

Notice (Blue Book) (notice of availability was

published in the Federal Register on May 25, 1988);

and the existing control technique guidelines

(CTGs).

2On July 10, 1998(63 FR 37258), EPA published

the final rule redesignating the San Francisco Bay

Area to nonattainment with the federal 1-hour

ozone NAAQS. The redesignation was authorized

under the general nonattainment provisions of

subpart 1, part D, title I, of the CAA. The Bay Area,

therefore, does not have a subpart 2 classification.

When comparing air quality in the Bay Area to the

traditional subpart 2 classification system, the Bay

Area’s design value is equivalent to that of a

moderate nonattainment area.

3The Sacramento Metro Area and the San Joaquin

Valley Area retained their designation and were

classified by operation of law pursuant to sections

107(d) and 181(a) upon the date of enactment of the

CAA. See 56 FR 56694 (November 6, 1991). The San

Joaquin Valley Area is classified as serious. On

April 25, 1995, EPA published a final rule granting

the State’s request to reclassify the Sacramento

Metro Area to severe from serious (60 FR 20237).

4On January 17, 1997 (62 FR 2597), EPA

published a direct final rule redesignating Monterey

Bay Area as maintenance attainment for ozone.

5EPA adopted completeness criteria on February

16, 1990 (55 FR 5830) and, pursuant to section

110(k)(1)(A) of the CAA, revised the criteria on

August 26, 1991 (56 FR 42216).

California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 ‘‘L’’ Street,

Sacramento, CA 95812.

Bay Area Air Quality Management

District, 939 Ellis Street, San Francisco,

CA 94105.

Lake County Air Quality Management

District, 883 Lakeport Boulevard,

Lakeport, CA 95453.

Monterey Bay Unified Air Pollution

Control District, 24580 Silver Cloud

Court, Monterey, CA 93940.

Sacramento Metropolitan Air Quality

Management District, 8411 Jackson

Road, Sacramento, CA 95826.

San Joaquin Valley Unified Air

Pollution Control District, 1990 East

Gettysburg Street, Fresno, CA 93726.

FOR FURTHER INFORMATION CONTACT: Al

Petersen, Rulemaking Office (AIR–4),

Air Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105, (415) 744–1135.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rules being proposed for limited

approval and limited disapproval into

the California SIP are LCAQMD Section

(Rule) 439.5, Retail Gasoline Service

Stations, MBUAPCD Rule 1002,

Transfer of Gasoline into Vehicle Fuel

Tanks, BAAQMD Rule 8–7, Gasoline

Dispensing Facilities; SMAQMD Rule

449, Transfer of Gasoline into Vehicle

Fuel Tanks; and SJVUAPCD Rule 4622,

Gasoline Transfer into Vehicle Fuel

Tanks. These rules were submitted by

the California Air Resources Board

(CARB) to EPA on May 18, 1998, June

3, 1999, March 23, 2000, May 18, 1998,

and August 21, 1998, respectively.

II. Background

On March 3, 1978, EPA promulgated

a list of ozone nonattainment areas

under the provisions of the 1977 Clean

Air Act (1977 CAA or pre-amended

Act), that included the San Francisco

Bay Area, Monterey Bay Area,

Sacramento Metro Area, and the San

Joaquin Valley Area. 43 FR 8964; 40

CFR 81.305. On May 26, 1988, EPA

notified the Governor of California,

pursuant to section 110(a)(2)(H) of the

pre-amended Act, that the above

district’s portions of the SIP were

inadequate to attain and maintain the

ozone standard and requested that

deficiencies in the existing SIP be

corrected (EPA’s SIP-Call). On

November 15, 1990, amendments to the

1977 CAA were enacted. Pub. L. 101–

549, 104 Stat. 2399, codified at 42

U.S.C. 7401–7671q.

In amended section 182(a)(2)(A) of the

CAA, Congress statutorily adopted the

requirement that nonattainment areas

fix their deficient Reasonably Available

Control Technology (RACT) rules for

ozone and established a deadline of May

15, 1991 for states to submit corrections

of those deficiencies. Section

182(a)(2)(A) applies to areas designated

as nonattainment prior to enactment of

the amendments and classified as

marginal or above as of the date of

enactment. It requires such areas to

adopt and correct RACT rules pursuant

to pre-amended section 172(b) as

interpreted in pre-amendment

guidance.1

In section 182(b)(3) of the CAA,

Congress required the states to submit a

SIP revision to require all owners or

operators of gasoline dispensing systems

in moderate or higher ozone

nonattainment areas to install a gasoline

vapor recovery system. The EPA

Administrator would issue gasoline

vapor recovery guidance as appropriate

as to the effectiveness of such a system.

The Monterey Bay Area, San

Francisco Bay Area, Sacramento Metro

Area, and San Joaquin Valley Area were

designated nonattainment; therefore,

these areas were subject to the RACT

fix-up requirement and the May 15,

1991 deadline. The San Francisco Bay

Area 2 was later designated attainment

and then redesignated nonattainment

under subpart 1, part D, of the CAA.

Subpart 1 nonattainment areas must

meet the requirements of RACT

according to section 172(c)(1) of the

CAA and must meet the requirements of

the gasoline vapor recovery guidance

according to section 182(b)(3) of the

CAA. The Sacramento Metro Area and

the San Joaquin Valley Area 3 subpart 2

nonattainment areas classified as

moderate or higher must meet the

requirements of RACT according to

section 182(a)(2)(A) and the gasoline

vapor recovery guidance according to

section 182(b)(3) of the CAA. The

Monterey Bay Area 4 has since been

redesignated as a maintenance

attainment area. This area must

implement all measures in the SIP

before redesignation as attainment,

according to section 175A(d) of the

CAA. Control of emissions from

gasoline dispensing facilities is not a

measure that is relied on to achieve or

maintain attainment; therefore, the

Monterey Bay Area is not subject to the

requirements of RACT, including

gasoline vapor recovery guidance. Lake

County Air Basin was designated

attainment and is not subject to the

requirements of RACT, including

gasoline vapor recovery guidance.

This document addresses EPA’s

proposed action for LCAQMD Section

(Rule) 439.5, Retail Gasoline Service

Stations, adopted on July 15, 1997;

MBUAPCD 1002, Transfer of Gasoline

into Vehicle Fuel Tanks, adopted on

April 21, 1999; BAAQMD Rule 8–7,

Gasoline Dispensing Facilities, adopted

on November 17, 1999; SMAQMD Rule

449, Transfer of Gasoline into Vehicle

Fuel Tanks, adopted on April 3, 1997;

and SJVUAPCD Rule 4622, Gasoline

Transfer into Vehicle Fuel Tanks,

adopted on June 18, 1998. These rules

were submitted on May 18, 1998, June

3, 1999, March 28, 2000, May 18, 1998,

and August 21, 1998, respectively.

These rules were found to be complete

on July 17, 1998, June 24, 1999, May 19,

2000, July 17, 1998, and October 2,

1998, respectively, pursuant to EPA’s

completeness criteria that are set forth

in 40 CFR Part 51, Appendix V. 5

LCAQMD Section (Rule) 439.5 and

MBUAPCD Rule 1002, are being

proposed for limited approval and

limited disapproval without sanctions.

BAAQMD Rule 8–7, SMAQMD Rule

449, and SJVUAPCD Rule 4622 are

being proposed for limited approval and

limited disapproval with sanctions.

The BAAQMD and LCAQMD rules

control the emission of volatile organic

compounds (VOCs) from the transfer of

gasoline into fuel storage tanks and into

vehicle fuel tanks. The MBUAPCD,

SMAQMD, and SJVUAPCD rules control

the emission of VOCs from the transfer

of gasoline into vehicle fuel tanks. VOCs

68116 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Proposed Rules

contribute to the production of ground

level ozone and smog. These rules were

originally adopted as part of these

Districts’ effort to achieve the National

Ambient Air Quality Standard (NAAQS)

for ozone and in response to EPA’s SIPCall and the section 182(a)(2)(A) and

182(b)(3) CAA requirements.

The following is EPA’s evaluation and

proposed action for these rules.

III. EPA Evaluation and Proposed

Action

In determining the approvability of a

VOC rule, EPA must evaluate the rule

for consistency with the requirements of

the CAA and EPA regulations, as found

in section 110 and Part D of the CAA

and 40 CFR Part 51 (Requirements for

Preparation, Adoption, and Submittal of

Implementation Plans). The EPA

interpretation of these requirements,

which forms the basis for today’s action,

appears in various EPA policy guidance

documents including those listed below:

• Model Volatile Organic Compound

Rule for Reasonably Available Control

Technology (RACT),’’ Office of Air

Quality Planning and Standards (June

1992).

• Issues Relating to VOC Regulation

Cutpoints, Deficiencies, and Deviations,

Clarification to Appendix D of

November 24, 1987 Federal Register (52

FR 45044) (The Blue Book).

Among the requirements for a VOC

rule for the nonattainment areas of

BAAQMD, SMAQMD, and SJVUAPCD

is that it must be enforceable and meet

the requirements of RACT. A VOC rule

for LCAQMD attainment area must be

enforceable but need not meet the

requirements of RACT. A rule for a

maintenance attainment area must be

enforceable and must implement all

measures in the SIP before redesignation

as attainment, according to section

175A(d). Control of emissions from

gasoline dispensing facilities is not a

measure that is relied on to achieve

attainment in MBUAPCD; therefore, the

MBUAPCD is not subject to the

requirements of RACT.

For the purpose of assisting state and

local agencies in developing RACT rules

for nonattainment areas, EPA prepared

a series of Control Technique Guideline

(CTG) documents which specify the

minimum requirements that a rule must

contain in order to be approved into the

SIP. The CTGs are based on the

underlying requirements of the Act and

specify the presumptive norms for what

is RACT for specific source categories.

Under the CAA, Congress ratified EPA’s

use of these documents, as well as other

Agency policy, for requiring States to

‘‘fix-up’’ their RACT rules. See section

182(a)(2)(A). There is no applicable CTG

for transfer of gasoline into vehicle fuel

tanks. However, EPA issued the

following for gasoline vapor recovery

guidance:

• Draft Model Rule, Gasoline

Dispensing facility—Stage II Vapor

Recovery, (August 17, 1992).

• Draft Gasoline Vapor Recovery

Guidelines, (April 24, 2000).

In evaluating RACT, EPA also

considered information published since

the 1992 Draft Model Rule, including

documents associated with

development of CARB’s Enhanced

Vapor Recovery Guidelines (March 23,

2000) and South coast air Quality

Management District’s Draft Rule 461,

Gasoline Transfer and Dispensing

(December 15, 1999). EPA, Region IX,

has summarized RACT requirements in

the Draft Gasoline Vapor Recovery

Guidelines (April 24, 2000). In general,

these guidance documents have been set

forth to ensure that VOC rules are fully

enforceable, meet the requirements of

RACT, and maintain or strengthen the

SIP.

There is currently no version of

LCAQMD Section (Rule) 439.5 in the

SIP. There are no versions on which

EPA has not acted. The submitted rule

includes the following provisions:

• The transfer of gasoline to a storage

tank (Phase I) and the transfer of

gasoline to a vehicle fuel tank shall have

a submerged fill pipe and CARBcertified vapor recovery equipment.

• The transfer of gasoline to a vehicle

fuel tank (Phase II) shall have CARBcertified vapor recovery equipment.

• The dispensing equipment shall

have appropriate warning signs and a

hold open latch.

• The rule contains various

exemptions for gasoline stations less

than certain minimum sizes.

On February 9, 1996, 61 FR 4892, EPA

approved into the SIP a version of

MBUAPCD Rule 1002. There are no

versions on which EPA has not acted.

The submitted rule includes the

following significant changes from the

current SIP:

• Section 3.1 continues to require that

vapor recovery equipment be CARBcertified, but removes the requirement

that the vapor recovery equipment

prevents 95% of the gasoline vapors

from entering the atmosphere.

• Subsection 3.2.2 adds the

requirement that equipment be tested in

accordance with California Code of

Regulations (CCR), Title 17, sections

94000 et seq.

• Section 3.4 is added to describe the

7-day period allowed to correct

equipment not in good working order

because of defects not specified by

CARB pursuant to California Health and

Safety Code section 41960.2(c).

• Part 4 separates the permitting

requirements for new, modified, and

existing gasoline dispensing systems.

On March 22, 1995, 60 FR 15062, EPA

approved into the SIP a version of

BAAQMD Rule 8–7. There are no

versions on which EPA has not acted.

The submitted rule includes the

following significant changes from the

current SIP:

• Numerous new standards were

added for Phase I and II vapor recovery

equipment.

• Numerous definitions were added

for clarity.

• Performance tests of newly installed

or modified equipment are required

according to the required Authority to

Construct.

• New performance test methods

were added.

• Recordkeeping requirements were

added.

On January 23, 1996, 61 FR 1716, EPA

approved into the SIP a version of

SMAQMD Rule 449. There are no

versions on which EPA has not acted.

SMAQMD submitted Rule 449 includes

the following significant changes from

the current SIP:

• Section 113 deletes the obsolete

exemption for fueling fork lifts.

• Section 305 adds a modification to

prohibit hold open latches, if prohibited

by the local Fire Marshal.

• Section 306 requires that the

Dynamic Back Pressure Test for gasoline

dispensing nozzles must be passed.

Testing could be more frequent than five

years, if required by the CARB.

On May 2, 1996, 61 FR 19555, EPA

approved into the SIP a version of

SJVUAPCD Rule 4622 that had been

adopted by SJVUAPCD on February 17,

1994. There are no versions on which

EPA has not acted. The submitted

includes the following significant

changes from the current SIP:

• Section 5.11, which requires that all

liquid removal devices be maintained to

remove at least five milliliters per

gallon, is added.

• Section 6.2.2, which required that

certified vapor recovery systems be

tested with 60 days of installation or

major modification, is deleted.

• Section 6.3.1 has added the

requirement that the APCO, CARB, and

EPA all approve test methods on vapor

recovery systems on which referenced

test methods are precluded.

• Sections 6.3.1, 6.3.2, and 6.3.3 have

three test methods added.

EPA has evaluated LCAQMD

submitted Rule 439.5 for an ozone

attainment area for consistency with the

CAA, EPA regulations, and EPA policy

Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Proposed Rules 68117

and has found that the revisions

strengthen the SIP by adding a rule to

reduce gasoline vapor emissions during

the transfer of gasoline in Phases I and

II by the use of CARB-certified vapor

recovery equipment. Although

LCAQMD Section (Rule) 439.5 will

strengthen the SIP, this rule still

contains the following enforceabilityrelated deficiencies that must be

corrected pursuant to the section

182(a)(2)(A) and 182(a)(3) requirements

of the CAA before the rule will qualify

for full approval:

• The rule should reference the

specific EPA-approved test methods to

be used for performance tests or

reverification of performance tests for, at

a minimum, a static leak test, a dynamic

back pressure test, an air-to-liquid

volume ratio test, and a liquid removal

rate test.

• Performance test records,

reverification of performance test

records, maintenance records and

throughput records (if an exemption is

claimed) should be maintained for at

least two years.

EPA has evaluated MBUAPCD Rule

1002 for a maintenance attainment area

for consistency with the CAA, EPA

regulations, and EPA policy and has

found that the revisions strengthen the

SIP with clarifications, by requiring the

testing of vapor recovery equipment,

and by requiring that defects be repaired

in seven days. Although the rule will

strengthen the SIP, this rule still

contains the following enforceabilityrelated deficiencies that must be

corrected pursuant to the section

182(a)(2)(A) and 182(a)(3) requirements

of the CAA before the rule will qualify

for full approval:

• Paragraph 3.2.2 contains obsolete

references, repealed on July 11, 1996,

for the vapor recovery equipment to be

operated, tested, and maintained.

• The rule should reference specific

EPA-approved test methods for

performance tests and reverification of

performance tests to be used for, at a

minimum, a static leak test, a dynamic

back pressure test, an air-to-liquid

volume ratio test, and a liquid removal

rate test.

• Paragraph 3.3 references ‘‘pursuant

to California Health and Safety Code,

section 41960.2(c),’’ but this reference

does not list any vapor recovery

equipment defects. The listing of vapor

recovery equipment defects in CCR, title

17, section 94006, could be referenced

or the defects could be listed

specifically in the rule.

• Performance test records,

reverification of performance test

records, maintenance records and

throughput records (if an exemption is

claimed) should be maintained for at

least two years.

EPA has evaluated BAAQMD Rule 8–

7 for section 1 ozone nonattainment area

for consistency with the CAA, EPA

regulations, and EPA policy and has

found that the revisions strengthen the

SIP by adding new standards, adding

test methods, adding recordkeeping

requirements, and adding performance

tests on new or modified equipment.

Although the rule will strengthen the

SIP, this rule still contains the following

enforceability-related deficiencies that

must be corrected pursuant to the

section 182(a)(2)(A) and 182(a)(3)

requirements of the CAA before the rule

will qualify for full approval:

• Paragraphs 302.3 and 306 require

maintaining equipment free of defects as

defined in California Health and Safety

Code 41960.2(c). California Code of

Regulations (CCR), title 17, section

94006 should be referenced instead,

because it contains a list of the specific

defects.

• Reverification of the performance

tests of the vapor recovery system

originally required by the CARB

Executive Order should be performed

more frequently, because studies have

shown poor compliance with

performance standards. EPA

recommends once every six months or,

if In-Station Diagnostics are used, once

every two years.

EPA has evaluated SMAQMD Rule

449 for a severe ozone nonattainment

area for consistency with the CAA, EPA

regulations, and EPA policy and has

found that the revisions strengthen the

SIP by removing an obsolete exemption

for fueling forklifts, by requiring the

passing of the Dynamic Back Pressure

Test, and by improving clarity.

Although the rule will strengthen the

SIP, this rule still contains the following

enforceability-related deficiencies that

must be corrected pursuant to the

section 182(a)(2)(A) and 182(a)(3)

requirements of the CAA before the rule

will qualify for full approval:

• Section 306 should reference the

specific EPA-approved test method to be

used for performance tests and

reverification of performance tests for an

air-to-liquid volume ratio test and a

liquid removal rate test.

• Performance testing of vapor

recovery equipment should start within

30 days of completion of construction of

vapor recovery equipment.

• Reverification of the performance

tests of the vapor recovery system

originally required by the CARB

Executive Order should be performed

more frequently, because studies have

shown poor compliance with

performance standards. EPA

recommends once every six months or,

if In-Station Diagnostics are used, once

every two years.

• Section 502 contains no

recordkeeping period. We recommend

that maintenance records, performance

test records, reverification of

performance test records, and gasoline

throughput records (if an exemption is

claimed) be kept for at least two years.

EPA has evaluated SJVUAPCD Rule

4622 for an ozone nonattainment area

for consistency with the CAA, EPA

regulations, and EPA policy and has

found that the revisions strengthen the

SIP by adding three test procedures to

the rule and by requiring a five milliliter

per gallon limit for liquid removal

devices. Although the rule will

strengthen the SIP, this rule still

contains the following enforceabilityrelated deficiencies that must be

corrected pursuant to the section

182(a)(2)(A) and 182(a)(3) requirements

of the CAA before the rule will qualify

for full approval:

• Section 5.4.11 contains a reference

to CCR, title 17, section 94001 for the

certification procedure that CARB uses

for vapor recovery equipment. The

correct reference is CCR, title 17, section

94011.

• Section 6.1 contains no

recordkeeping period. We recommend

that maintenance records and

reverification of performance test

records be kept for at least two years.

• Section 6.2.2 in the SIP rule, which

required that certified vapor recovery

systems be tested within 60 days of

installation or major modification, was

deleted from the submitted rule. This is

less stringent than the SIP-approved

rule. Performance testing of vapor

recovery equipment should start within

a defined period of completion of

construction of vapor recovery

equipment.

• Section 6.3.1 should reference the

specific EPA-approved test method to be

used for performance tests and

reverification of performance tests for an

air-to-liquid volume ratio test.

• Reverification of the performance

tests of the vapor recovery system

originally required by the CARB

Executive Order should be performed

more frequently, because studies have

shown poor compliance with

performance standards. EPA

recommends once every six months or,

if In-Station Diagnostics are used, once

every two years.

A detailed discussion of rule

deficiencies can be found in the

Technical Support Documents for

LCAQMD Section (Rule) 439.5,

MBUAPCD Rule 1002, BAAQMD Rule

8–7, SMAQMD Rule 449, and

68118 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Proposed Rules

SJVUAPCD Rule 4622, which are

available from the U.S. EPA, Region IX

office.

Because of the enforceability-related

deficiencies in LCAQMD Section (Rule)

439.5 and MBUAPCD Rule 1002, EPA

cannot grant full approval of these rules

under section 110(k)(3) of the CAA.

However, sanctions pursuant to section

179(b) will not be applied, because

these areas are an attainment area and

a maintenance attainment area,

respectively.

Because of the deficiencies in

BAAQMD Rule 8–7, SMAQMD Rule

449, and SJVUAPCD Rule 4622, EPA

cannot grant full approval of these rules

under section 110(k)(3) and part D.

Also, because the submitted rules are

not composed of separable parts which

meet all the applicable requirements of

the CAA, EPA cannot grant partial

approval of the rules under section

110(k)(3). However, EPA may grant a

limited approval of the submitted rules

under section 110(k)(3) in light of EPA’s

authority pursuant to section 301(a) to

adopt regulations necessary to further

air quality by strengthening the SIP. The

approval is limited because EPA’s

action also contains a simultaneous

limited disapproval. In order to

strengthen the SIP, EPA is proposing a

limited approval of BAAQMD Rule 8–7,

SMAQMD Rule 449, and SJVUAPCD

Rule 4622, under sections 110(k)(3) and

301(a) of the CAA.

At the same time, EPA is also

proposing a limited disapproval of

BAAQMD Rule 8–7, SMAQMD Rule

449, and SJVUAPCD Rule 4622, because

they contain deficiencies that have not

been corrected as required by section

182(a)(2)(A) and 182(a)(3)(A) of the

CAA, and, as such, the rules do not fully

meet the requirements of part D of the

CAA. Under section 179(a)(2), if the

Administrator disapproves a submission

under section 110(k) for an area

designated nonattainment, based on the

submission’s failure to meet one or more

of the elements required by the Act, the

Administrator must apply one of the

sanctions set forth in section 179(b)

unless the deficiency has been corrected

within 18 months of such disapproval.

These sanctions would be imposed

according to 40 CFR 52.31. Moreover,

the final disapproval triggers the Federal

Implementation Plan (FIP) requirement

under section 110(c). It should be noted

that the rules covered by this NPR have

been adopted by the LCAQMD,

MBUAPCD, BAAQMD, SMAQMD, and

SJVUAPCD and are currently in effect in

the Districts. EPA’s final limited

disapproval action will not prevent

these Districts from enforcing these

rules.

We will accept comments from the

public on the proposed limited

approvals and limited disapprovals for

the next 30 days.

IV. 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 13045

Executive Order 13045, entitled

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

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.

C. 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, E.O. 13084 requires EPA to

provide to the OMB 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, E.O.

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 proposed 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 proposed

rule.

D. Executive Order 13132

Executive Order 13132, entitled

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612, Federalism and 12875,

Enhancing the Intergovernmental

Partnership. E.O. 13132 requires EPA to

develop an accountable process to

ensure ‘‘meaningful and timely input by

State and local officials in the

development of regulatory policies that

have federalism implications.’’ ‘‘Policies

that have federalism implications’’ is

defined in the Executive Order to

include regulations that have

‘‘substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government.’’ Under E.O.

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This proposed rule will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

E.O. 13132, because it merely acts on a

state rule implementing a federal

standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this proposed 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

Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Proposed Rules 68119

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 proposed 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 act on 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.

EPA’s proposed disapproval of the

state request under section 110 and

subchapter I, part D of the Clean Air Act

does not affect any existing

requirements applicable to small

entities. Any pre-existing federal

requirements remain in place after this

disapproval. Federal disapproval of the

state submittal does not affect state

enforceability. Moreover, EPA’s

disapproval of the submittal does not

impose any new Federal requirements.

Therefore, 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 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

proposed action does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This proposed Federal

action acts on 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. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

EPA believes that VCS are

inapplicable to today’s proposed action

because it does not require the public to

perform activities conducive to the use

of VCS.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Ozone, Reporting and recordkeeping

requirements, Volatile organic

compounds.

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

Dated: October 20, 2000.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 00–29065 Filed 11–13–00; 8:45 am]

BILLING CODE 6560–50–P