Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 23665

accepted standards of clinical practice

during VA employment as to raise

reasonable concern for the safety of

patients. Even so, it would seem that in

almost every case in which substance

abuse is found, we would also be able

to determine that it affects the

individual’s ability to perform

appropriately as a health care provider

in the patient care environment.

Further, currently employed individuals

who are identified as substance abusers

are always encouraged by VA to obtain

rehabilitation assistance, and there is no

need to make a special recommendation

to State Licensing Boards since we are

aware that State Licensing Boards

routinely provide similar

encouragement.

Executive Order 12866

This rule has been reviewed by OMB

under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that

this final rule will not have a significant

economic impact on a substantial

number of small entities as they are

defined in the Regulatory Flexibility

Act, 5 U.S.C. 601–612. The rule will

affect only individuals and will not

directly affect any small entities.

Therefore, pursuant to 5 U.S.C. 605(b),

this rule is exempt from the initial and

final regulatory flexibility analyses

requirements of §§ 603 and 604.

There are no applicable Catalog of

Federal Domestic Assistance program

numbers.

List of Subjects in 38 CFR Part 47

Health professions.

Approved: April 22, 1998.

Togo D. West, Jr.,

Acting Secretary.

For the reasons set forth in the

preamble, 38 CFR part 47 is amended as

follows:

PART 47—POLICY REGARDING

REPORTING HEALTH CARE

PROFESSIONALS TO STATE

LICENSING BOARDS

1. The authority citation for part 47

continues to read as follows:

Authority: Pub. L. 99–166, 99 Stat. 941; 38

U.S.C. 501.

2. The part heading for part 47 is

revised to read as shown above.

3. In part 47, both subpart A and

subpart B headings are removed.

4. In § 47.1, paragraph (a) is removed;

paragraphs (b) through (h) are

redesignated as paragraphs (a) through

(g), respectively; new paragraphs (h) and

(i) are added, and the authority citation

is revised, to read as follows:

§ 47.1 Definitions.

* * * * *

(h) Currently employed licensed

health care professional means a

licensed health care professional who is

on VA rolls.

(i) On VA rolls means on VA rolls,

regardless of the status of the

professional, such as full-time, parttime, contract service, fee-basis, or

without compensation.

(Authority: 38 U.S.C. 501, 7401–7405;

Section 204(b) of Pub. L. 99–166, 99 Stat.

952–953; Pub. L. 99–660, 100 Stat. 3743.)

§ 47.2 [Removed]

5. Section 47.2 is removed.

§ 47.3 [Redesignated as § 47.2]

6. Section 47.3 is redesignated as

§ 47.2.

7. The newly redesignated § 47.2 is

revised to read as follows:

§ 47.2 Reporting to State Licensing

Boards.

It is the policy of VA to report to State

Licensing Boards any currently

employed licensed health care

professional or separated licensed

health care professional whose clinical

practice during VA employment so

significantly failed to meet generally

accepted standards of clinical practice

as to raise reasonable concern for the

safety of patients. The following are

examples of actions that meet the

criteria for reporting:

(a) Significant deficiencies in clinical

practice such as lack of diagnostic or

treatment capability; errors in

transcribing, administering or

documenting medication; inability to

perform clinical procedures considered

basic to the performance of one’s

occupation; performing procedures not

included in one’s clinical privileges in

other than emergency situations;

(b) Patient neglect or abandonment;

(c) Mental health impairment

sufficient to cause the individual to

behave inappropriately in the patient

care environment;

(d) Physical health impairment

sufficient to cause the individual to

provide unsafe patient care;

(e) Substance abuse when it affects

the individual’s ability to perform

appropriately as a health care provider

or in the patient care environment;

(f) Falsification of credentials;

(g) Falsification of medical records or

prescriptions;

(h) Theft of drugs;

(i) Inappropriate dispensing of drugs;

(j) Unethical behavior or moral

turpitude;

(k) Mental, physical, sexual, or verbal

abuse of a patient (examples of patient

abuse include intentional omission of

care, willful violation of a patient’s

privacy, willful physical injury,

intimidation, harassment, or ridicule);

and

(l) Violation of research ethics.

(Authority: 38 U.S.C. 501; 7401–7405;

Section 204(b) of Pub. L. 99–166, 99 Stat.

952–953; Pub. L. 99–660, 100 Stat. 3743.)

[FR Doc. 98–11466 Filed 4–29–98; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[Region II Docket No. NY25–2–173b, FRL–

5995–4]

Approval and Promulgation of

Implementation Plans; New York State

Implementation Plan Revision

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is approving a revision to

the New York State Implementation

Plan (SIP) for ozone concerning the

control of volatile organic compounds.

The SIP revision consists of

amendments to the New York Code of

Rules and Regulations. This revision

was submitted to comply with the

gasoline vapor recovery provisions for

gasoline service stations in the Clean

Air Act (the Act). The intended effect of

this action is to approve a program

required by the Act which will result in

emission reductions that will help

achieve attainment of the national

ambient air quality standard (NAAQS)

for ozone.

DATES: This rule is effective on June 29,

1998 unless relevant adverse comments

are received by June 1, 1998. If EPA

receives relevant adverse comments, a

timely withdrawal will be published in

the Federal Register.

ADDRESSES: All comments should be

addressed to: Ronald J. Borsellino,

Chief, Air Programs Branch,

Environmental Protection Agency,

Region 2 Office, 290 Broadway, 25th

Floor, New York, New York 10007–

1866.

Copies of the state submittal are

available at the following addresses for

inspection during normal business

hours:

Environmental Protection Agency,

Region II Office, Air Programs Branch,

290 Broadway, 25th Floor, New York,

New York 10007–1866
23666 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

New York State Department of

Environmental Conservation, Division

of Air Resources, 50 Wolf Road,

Albany, New York 12233

Environmental Protection Agency, Air

and Radiation Docket and Information

Center, Air Docket (6102), 401 M

Street, S.W., Washington, D.C. 20460

FOR FURTHER INFORMATION CONTACT: Kirk

J. Wieber, Air Programs Branch,

Environmental Protection Agency, 290

Broadway, 25th Floor, New York, New

York 10007–1866, (212) 637–4249.

SUPPLEMENTARY INFORMATION:

I. Background

On November 28, 1989 (54 FR 48888)

EPA approved a revision to New York’s

State Implementation Plan (SIP) for

ozone which added requirements for the

control of gasoline vapors resulting from

the refueling of vehicle fuel tanks at

gasoline service stations (known as

Stage II) and were adopted by the State

on March 2, 1988 as revisions to Part

230 of title 6 of the New York Code of

Rules and Regulations of the State of

New York, entitled, ‘‘Gasoline

Dispensing Sites and Transport

Vehicles.’’ On July 8, 1994, the New

York State Department of

Environmental Conservation (NYSDEC)

submitted to EPA a SIP revision for

ozone consisting of amendments to Part

230. These revisions became effective

on September 22, 1994. These revisions

to Part 230 expand the geographic

applicability of the Stage II

requirements and address section

182(b)(3) of the Clean Air Act (the Act).

Section 182(b)(3) mandates that states

submit a revised SIP by November 15,

1992 which requires owners or

operators of gasoline dispensing systems

to install and operate Stage II gasoline

vehicle refueling vapor recovery

systems in ozone nonattainment areas

designated as moderate and above.

The New York portion of the ‘‘New

Jersey, New York, Connecticut interstate

metropolitan air quality control region’’

(NYCMA—composed of New York City

and the counties of Nassau, Suffolk,

Westchester and Rockland) was

previously designated nonattainment for

ozone. Under the Act as amended in

1990, EPA included these areas as part

of the New York-Northern New JerseyLong Island Nonattainment Area and

designated it with an ozone

classification of severe nonattainment.

On November 6, 1991 (56 FR 56694),

EPA extended the boundaries of the

New York-Northern New Jersey-Long

Island Nonattainment Area to include

Putnam and Orange counties. New

York, however, requested time to study

the boundaries and classification

pursuant to section 187(d)(4)(A)(iv) of

the Act. Based on New York’s study,

EPA revised the designations on

November 30, 1992 (57 FR 56762). EPA

included part of Orange County or the

Lower Orange County Metropolitan

Area (LOCMA) consisting of the towns

of Blooming Grove, Chester, Highlands,

Monroe, Tuxedo, Warwick and

Woodbury) in the New York-Northern

New Jersey-Long Island Nonattainment

Area. This entire area is classified as

severe nonattainment.

In addition, on October 6, 1994 (59 FR

50848), EPA reclassified the

Poughkeepsie ozone nonattainment area

(includes the counties of Dutchess,

Putnam and that portion of Orange not

discussed previously) to moderate

nonattainment. It had been designated

as marginal nonattainment. Section

182(b)(3) of the Act requires areas

classified as moderate to implement

Stage II controls unless and until EPA

promulgates on-board vapor recovery

regulations pursuant to section 202(a)(6)

of the Act. However, many moderate

ozone nonattainment areas may need to

continue or adopt Stage II in order to

satisfy other air quality requirements.

The final rule for on-board vapor

recovery systems has been promulgated

and was published in the Federal

Register on April 6, 1994 (59 FR 16262).

However, the Stage II vapor recovery

program is still required in the NYCMA

and LOCMA areas since they are

designated as severe nonattainment

areas for ozone. Therefore, only the

NYCMA and LOCMA ozone

nonattainment areas are addressed in

the July 8, 1994 SIP revision of Part 230

in which EPA is approving.

II. Stage II—Gasoline Vapor Recovery

Section 182(b)(3) of the Act mandates

that states submit a revised SIP by

November 15, 1992 that requires owners

or operators of gasoline dispensing

systems to install and operate Stage II

gasoline vehicle refueling vapor

recovery systems in ozone

nonattainment areas designated as

moderate and above.

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

Act, EPA is required to issue guidance

as to the effectiveness of Stage II

systems. In November 1991, EPA issued

technical and enforcement guidance to

meet this requirement. In addition, on

April 16, 1992, EPA published the

‘‘General Preamble for the

Implementation of title I of the Clean

Air Act Amendments of 1990’’

(‘‘General Preamble’’) (57 FR 13498).

The guidance documents and the

General Preamble interpret the Stage II

statutory requirement and indicate what

EPA believes a state submittal needs to

include to meet that requirement. These

two documents are entitled ‘‘Technical

Guidance-Stage II Vapor Recovery

Systems for Control of Vehicle Refueling

Emissions at Gasoline Dispensing

Facilities’’ (EPA–450/3–91–022) and

‘‘Enforcement Guidance for Stage II

Vehicle Refueling Control Programs.’’

The reader is referred to the General

Preamble for a detailed explanation of

Stage II requirements.

The Stage II vapor recovery program

requires owners and operators of

gasoline dispensing facilities that

dispense greater than 10,000 gallons of

fuel per month (50,000 gallon per month

in the case of an independent small

business marketer) to install and operate

gasoline vehicle refueling vapor

recovery systems. Vapor recovery

systems control the release of volatile

organic compounds, benzene, and toxics

emitted during the refueling process.

States must require Stage II to be

effective under a specified phase-in

schedule of 6 months after the state

adopts the required regulation for

stations constructed after November 15,

1990; one year after the adoption date

for stations dispensing at least 100,000

gallons per month, (as calculated over a

2-year period before the adoption date);

and two years after the adoption date for

all other facilities required to install

controls.

As a separate requirement, section

184(b)(2) of the Act mandated EPA to

complete a study identifying control

measures capable of achieving emission

reductions comparable to those

achievable through vehicle refueling

controls contained in section 182(b)(3)

of the Act, and required such measures

or such vehicle refueling controls to be

implemented in all areas in the Ozone

Transport Region (OTR), e.g., Northeast

OTR. The entire State of New York is

included in the Northeast OTR. EPA

completed the ‘‘Stage II Comparability

Study for the Northeast OTR’’ on

January 13, 1995, which requires New

York to adopt and submit a SIP revision

by January 13, 1996 for either Stage II

or a comparable measure(s) for those

areas currently not controlled by the

Stage II requirements in Part 230 (i.e.,

all upstate areas of New York). New

York is currently in the process of

addressing this requirement, therefore,

it was not included in the July 8, 1994

SIP revision.

III. State Submittal

Part 230—Gasoline Dispensing Sites

and Transport Vehicles

A. The revisions to Part 230 expands

the applicability of Stage I vapor

controls (control of gasoline vapors
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 23667

during storage tank filling) statewide to

all gasoline facilities with an annual

throughput of 120,000 gallons and

includes additional requirements for

gasoline transport vehicles which

service these facilities located in New

York State.

B. Part 230 also expands Stage II

controls to smaller stations in the

NYCMA and into the LOCMA. Stage II

was previously not required in the

LOCMA and required only for stations

with annual throughputs over 250,000

gallons in the NYCMA, but the Act

required this strategy in all severe

nonattainment areas for stations over

120,000 gallons annual throughput.

Therefore, New York revised Part 230 to

accommodate this lower limit in the

NYCMA and added these requirements

in the LOCMA.

C. New York requires that Stage II

systems be tested and approved using a

testing program that is based on the

California Air Resources Board program.

D. New York requires sources to

verify proper installation and function

of Stage II equipment through use of a

liquid blockage test and a leak test prior

to system operation and at five year

intervals or upon modification of a

facility.

E. With respect to recordkeeping, New

York’s revisions to Part 230 address

those items recommended in EPA’s

guidance and specifies that sources

subject to Stage II must post a copy of

the registration form required by Part

201, ‘‘Permits and Certificates’’ at the

gasoline dispensing site in a location

accessible for inspection. In addition,

New York requires any gasoline

dispensing site to maintain records

containing the gasoline throughput of

the facility.

F. New York has also established an

inspection function consistent with that

described in EPA’s guidance. Rule 230

was amended to require daily visual

inspections of the Stage II components

and to prohibit the use of dispensers

with defective Stage II components.

G. EPA reviewed the submittal against

the requirements of sections 182(b)(3)

and 182(b)(2) of the Act, as interpreted

in the General Preamble for

Implementation of title I of the Clean

Air Act Amendments of 1990 (57 FR

13498, 13513 (April 16, 1992)), and the

two EPA documents entitled Technical

Guidance-Stage II Vapor Recovery

Systems for Control of Vehicle Refueling

Emissions at Gasoline Dispensing

Facilities and the Enforcement

Guidance for Stage II Vehicle Refueling

Control Programs. EPA has determined

that Part 230 is consistent with EPA

guidance and meets all Act

requirements for the regulated

geographical area.

Conclusion

EPA has evaluated New York’s

submittal for consistency with the Act,

EPA regulations, and EPA policy. EPA

has determined that the revisions made

to Part 230 of title 6 of the New York

Code of Rules and Regulations of the

State of New York, entitled, ‘‘Gasoline

Dispensing Sites and Transport

Vehicles,’’ effective September 22, 1994,

meet the requirements of the Act.

Therefore, EPA is approving those

revisions.

EPA is publishing this rule without

prior proposal because the Agency

views this as a noncontroversial

amendment and anticipates no relevant

adverse comments. However, in the

proposed rules section of this Federal

Register publication, EPA is publishing

a separate document that will serve as

the proposal to approve the SIP revision

should relevant adverse comments be

filed. This rule will be effective June 29,

1998 without further notice unless the

Agency receives relevant adverse

comments by June 1, 1998.

If the EPA receives such comments,

then EPA will publish a notice

withdrawing the final rule and

informing the public that the rule did

not take effect. All public comments

received will then be addressed in a

subsequent final rule based on the

proposed rule. The EPA will not

institute a second comment period on

the proposed rule. Only parties

interested in commenting on the

proposed rule should do so at this time.

If no such comments are received, the

public is advised that this rule will be

effective on June 29, 1998 and no

further action will be taken on the

proposed rule.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

Administrative Requirements

Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from E.O. 12866 review.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under section 110 and

subchapter I, part D of the 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

impose any new requirements, I certify

that it does not have a significant impact

on any small entities affected. Moreover,

due to the nature of the Federal-State

relationship under the Act, preparation

of a flexibility analysis would constitute

federal inquiry into the economic

reasonableness of state action. The 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).

Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a federal mandate that

may result in estimated annual costs to

state, local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

federal mandate that may result in

estimated annual costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to state, local, or tribal

governments, or to the private sector,

result from this action.

Submission to Congress and the General

Accounting Office

The Congressional Review Act, 5

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

Business Regulatory Enforcement
23668 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

§ 804(2).

Petitions for Judicial Review

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

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by June 29, 1998. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Ozone, Reporting and recordkeeping

requirements, Volatile organic

compounds.

Dated: March 30, 1998.

William Muszynski,

Acting Regional Administrator, Region 2.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart HH—New York

2. Section 52.1670 is amended by

adding new paragraph (c)(92) to read as

follows:

§ 52.1670 Identification of plan.

* * * * *

(c) * * *

(92) Revisions to the New York State

Implementation Plan (SIP) for ozone

concerning the control of volatile

organic compounds from Gasoline

Dispensing Sites and Transport

Vehicles, dated July 8, 1994, submitted

by the New York State Department of

Environmental Conservation (NYSDEC).

(i) Incorporation by reference:

(A) Amendments to Part 230 of title

6 of the New York Code of Rules and

Regulations of the State of New York,

entitled ‘‘Gasoline Dispensing Sites and

Transport Vehicles,’’ effective

September 22, 1994.

(ii) Additional material:

(A) July 8, 1994, letter from Langdon

Marsh, NYSDEC, to Jeanne Fox, EPA,

requesting EPA approval of the

amendments to Part 230.

3. In § 52.1679 the table is amended

by revising the entry, for Part 230 to

read as follows:

§ 52.1679 EPA-approved New York State

regulations.

New York State regulation State effective

date

Latest EPA approval

date Comments

* * * * * * *

Part 230, Gasoline Dispensing Sites and Transport Vehicles .................... 8/22/94 April 30, 1998.

* * * * * * *

[FR Doc. 98–11381 Filed 4–29–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA058–4070; FRL–5997–8]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; Disapproval of the NOX

RACT Determination for Pennsylvania

Power Company

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is disapproving a State

Implementation Plan (SIP) revision

submitted by the Commonwealth of

Pennsylvania. The intended effect of

this action is to disapprove the nitrogen

oxide (NOX) reasonably available

control technology (RACT)

determination submitted by the

Pennsylvania Department of

Environmental Protection (PADEP for

Pennsylvania Power Company—New

Castle plant (PPNC), located in

Lawrence County, Pennsylvania.

DATES: This final rule is effective on

June 1, 1998.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the Air Protection

Division, U.S. Environmental Protection

Agency, Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania

19107; Pennsylvania Department of

Environmental Protection, Bureau of Air

Quality, P.O. Box 8468, 400 Market

Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT:

Cynthia H. Stahl, (215) 566–2180, at the

EPA Region III address above.

SUPPLEMENTARY INFORMATION: On August

18, 1997 (62 FR 43959), EPA published

a notice of proposed rulemaking (NPR)

for the Commonwealth of Pennsylvania.

The NPR proposed disapproval of the

NOX RACT determination for

Pennsylvania Power’s New Castle plant

(PPNC), located in Lawrence County.

The formal SIP revision was submitted

by Pennsylvania Department of

Environmental Resources (now the

Pennsylvania Department of

Environmental Protection or PADEP) on

April 19, 1995. EPA is now taking final

action to disapprove the RACT

determination submitted by PADEP for

PPNC. This action is being taken under

section 110 of the Clean Air Act.

I. Background

On April 9, 1996 EPA originally

published a direct final rulemaking

approving this RACT determination.

Opportunity for public comment was

provided, however, and on May 8, 1996,

the New York Department of

Environmental Conservation (NYDEC)

submitted a letter stating that it

intended to adversely comment on

EPA’s proposed approval of PADEP’s

RACT determination for PPNC. Because

of New York’s letter of intent, the direct

final action converted to a proposed

action in accordance with established

Federal rulemaking procedures. On June

11, 1996, EPA published a notice