53378 Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 

EPA-APPROVED LOUISIANA NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES

Name of SIP provision Applicable geographic or 

nonattainment area 

State submittal 

date/effective 

date 

EPA approval date Explanation 

* * * * * * * 

1997 8-Hour Ozone Section 110 

Maintenance Plan.

New Orleans Ozone Maintenance Area (including Jefferson, Orleans, St. Bernard and 

St. Charles Parishes), LA.

6/29/07 9/16/08. 

[Insert FR page number 

where document begins].

3. Section § 52.975, entitled, 

‘‘Redesignations and maintenance 

plans; ozone’’, is amended by adding a 

new paragraph (k) as follows: 

§ 52.975 Redesignations and maintenance 

plans; ozone. 

* * * * * 

(k) Approval. The LDEQ submitted a 

maintenance plan addressing the 1997 

8-hour ozone standard for the New 

Orleans Ozone Maintenance Area on 

June 29, 2007. This area is designated 

unclassifiable/attainment for the 1997 

ozone standard. EPA determined this 

request for the New Orleans Ozone 

Maintenance Area was complete on 

August 8, 2007. This maintenance plan 

meets the requirements of section 

110(a)(1) of the CAA, and is consistent 

with EPA’s maintenance plan guidance 

document dated May 20, 2005. The EPA 

therefore approved the 1997 8-hour 

ozone NAAQS maintenance plan for the 

New Orleans Ozone Maintenance Area 

including the parishes of Jefferson, 

Orleans, St. Bernard and St. Charles on 

September 16, 2008. 

* * * * * 

[FR Doc. E8–21196 Filed 9–15–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2007–0836–200739(a); 

FRL–8714–8] 

Approval and Promulgation of 

Implementation Plans; Florida; 

Removal of Gasoline Vapor Recovery 

From Southeast Florida Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving the State 

Implementation Plan (SIP) revision 

submitted by the State of Florida 

(Florida) on May 31, 2007, for the 

purpose of removing Stage II vapor 

control requirements for new and 

upgraded gasoline dispensing facilities 

in Dade, Broward, and Palm Beach 

Counties (hereafter refer to as the 

‘‘Southeast Florida Area’’), and to phase 

out Stage II requirements for existing 

facilities in those counties. In addition, 

EPA is approving this SIP revision 

which requires new and upgraded 

gasoline dispensing facilities and new 

bulk gasoline plants statewide to 

employ Stage I vapor control systems, 

and phases in Stage I vapor control 

requirements statewide for existing 

gasoline dispensing facilities. 

DATES: This direct final rule is effective 

November 17, 2008 without further 

notice, unless EPA receives adverse 

comment by October 16, 2008. If EPA 

receives such comments, it will publish 

a timely withdrawal of the direct final 

rule in the Federal Register and inform 

the public that the rule will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2007–0836, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. E-mail: lesane.heidi@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2007– 

0836,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Heidi 

LeSane, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2007– 

0836. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center home page at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Regulatory 

Development Section, Air Planning 


ebenthall on PROD1PC60 with RULES
Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 53379 

1The Phase I implementation rule for the 1997 8- 

hour ozone standard, at 40 CFR 51.905(4), requires 

that any ‘‘applicable requirement’’ under the 1-hour 

ozone SIP, if rescinded, be retained as a 

contingency measure in the 8-hour ozone SIP. 

However, since the Southeast Florida Stage II vapor 

recovery program ceased to be an ‘‘applicable 

requirement’’ upon EPA’s promulgation of the 

ORVR standards in 1994, the State is not obligated, 

and is not proposing, to retain the program as a 

contingency measure. 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Heidi LeSane, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9074. 

Ms. LeSane can also be reached via 

electronic mail at lesane.heidi@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Effective January 6, 1992, EPA under 

the Clean Air Act Amendments of 1990 

(CAA or ‘‘the Act’’), designated and 

classified the three-county Southeast 

Florida Area consisting of Palm Beach, 

Broward, and Dade Counties as a 

‘‘moderate’’ ozone nonattainment area. 

(56 FR 56694). The designation was 

based on the area’s 1-hour ozone design 

value, 138 parts per billion (ppb), for the 

three-year period 1987–1989. Pursuant 

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

of the CAA, the Florida Department of 

Environmental Protection (FDEP) 

developed Florida Administrative Code 

(F.A.C.) Rule 62–252.400, Gasoline 

Dispensing Facilities—Stage II Vapor 

Recovery, and submitted the rule to EPA 

for approval as part of Florida’s ozone 

SIP. The rule was adopted by FDEP 

effective February 2, 1993, and 

approved by EPA effective April 25, 

1994 (59 FR 13883). Under the State 

rule, new gasoline dispensing facilities 

built after November 15, 1992, were 

required to employ Stage II systems 

upon start-up; existing facilities were 

required to install Stage II systems by 

specific dates ranging from June 30, 

1993, to November 15, 1994. 

On November 8, 1993, having 

implemented all measures required of 

the State to that date for moderate ozone 

nonattainment areas under the CAA, 

and with three years of data (1990– 

1992) showing compliance with the 1- 

hour ozone standard, FDEP submitted to 

EPA an ozone maintenance plan and 

request for redesignation of the 

Southeast Florida Area to attainment 

status. The maintenance plan, as 

required under section 175A of the 

CAA, showed that nitrogen oxides 

(NOX) and volatile organic compound 

(VOC) emissions in the area would 

remain below the 1990 ‘‘attainment 

year’’ levels throughout the ten-year 

period from 1995 to 2005. In making 

these projections, FDEP factored in the 

emissions benefit (primarily VOCs) of 

the area’s Stage II program, thereby 

expressing the State’s intent to maintain 

this program as part of its 1-hour ozone 

SIP. The redesignation request and 

maintenance plan were approved by 

EPA, effective April 25, 1995 (60 FR 

10325). Subsequently, the maintenance 

plan was extended by FDEP to 2015 and 

approved by EPA, effective April 13, 

2004 (69 FR 7127). 

On April 6, 1994, EPA promulgated 

regulations requiring the phase-in of onboard refueling vapor recovery (ORVR) 

systems on new motor vehicles. Under 

Section 202(a)(6) of the CAA, moderate 

ozone nonattainment areas are not 

required to implement Stage II vapor 

recovery programs after promulgation of 

ORVR standards. Since the Southeast 

Florida Stage II program was already in 

place and had been included in the 

State’s November 8, 1993, redesignation 

request and 1-hour ozone maintenance 

plan for the area, FDEP elected not to 

remove the program from the SIP at that 

time.1

II. Analysis of State’s Submittal 

A. Requested Removal of Stage II 

Requirements 

EPA’s primary consideration for 

determining the approvability of 

Florida’s request to remove Stage II 

vapor control requirements for new and 

upgraded gasoline dispensing facilities 

in the Southeast Florida Area, and for 

the phase out of Stage II requirements 

for existing facilities in those counties is 

whether this requested action complies 

with section 110(l) of the CAA. Below 

is EPA’s analysis of these 

considerations. 

1. Federal Requirements for Stage II 

As a result of the 1990 CAA 

amendments, states were required to 

adopt Stage II rules for all areas 

classified as ‘‘moderate’’ or worse under 

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

addition, Section 202(a)(6) of the CAA 

required EPA to promulgate Onboard 

Vapor Recovery standards. Section 

202(a)(6) further provides that ‘‘the 

requirements of section 182(b)(3) 

(relating to Stage II gasoline vapor 

recovery) for areas classified under 

section 181 as moderate for ozone shall 

not apply after promulgation of such 

standards.’’ Onboard Refueling Vapor 

Recovery (ORVR) regulations were 

promulgated by EPA on April 6, 1994 

(see, 59 FR 16262, 40 CFR 86.001 and 

40 CFR 86.098). As a result, the CAA no 

longer requires moderate areas to 

impose Stage II controls under section 

182(b)(3), and such areas may seek SIP 

revisions to remove such requirements 

from their SIPs, subject to section 110(l) 

of the Act. Section 110(l) of the CAA, 

states: 

Plan Revision—Each revision to an 

implementation plan submitted by a State 

under this Chapter shall be adopted by such 

State after reasonable notice and public 

hearing. The Administrator shall not approve 

a revision of a plan if the revision would 

interfere with any applicable requirement 

concerning attainment and reasonable further 

progress (as defined in section 7501 of this 

title), or any other applicable requirement of 

this Chapter. 

As such, Florida must make 

demonstration of noninterference to 

remove Stage II from the SIP for the 

Southeast Florida area. EPA’s policy 

memoranda related to ORVR, dated 

March 9, 1993, and June 23, 1993, 

provided further guidance on an 

allowance for removing stage II 

requirements from certain areas. 

2. Southeast Florida’s Air Quality Status 

On April 30, 2004, EPA published the 

nonattainment and attainment 

designations for the 1997 8-hour ozone 

standard (69 FR 23857). The Southeast 

Florida Area was determined to be in 

attainment for the 8-hour ozone 

standard. With regard to the 1-hour and 

8-hour ozone NAAQS, Southeast 

Florida is still in attainment and has 

provided monitoring data in the 

submittal for both standards through 

2006 which demonstrates this 

attainment. Compliance with the 8-hour 

ozone standard is demonstrated at 84 

ppb and for the 1-hour ozone standard, 

compliance was demonstrated at 124 

ppb. For the period of 2004–2006, the 8- 

hour ozone design value was 70 ppb, 

and the 1-hour ozone design value was 

92 ppb. 

On January 5, 2005, EPA published 

nonattainment and attainment 

designations for the PM2.5 standard (70 

FR 944). The Southeast Florida Area 

was designated as attainment for the 

PM2.5 standard and has remained in 

attainment through 2006. Compliance 

for the current PM2.5 annual standard is 


ebenthall on PROD1PC60 with RULES
53380 Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 

2Air Quality Maintenance Plan (2005–2015) 

Dade, Broward, Palm Beach Counties, December 

2002. 

3The total VOC emissions in this area also 

include a biogenic component that is assumed 

constant over time. The biogenic VOC emissions for 

the individual counties are estimated at 211.3 tpd 

for Miami-Dade, 174.5 tpd for Broward, and 399.6 

tpd for Palm Beach. These amounts can be added 

to the man-made emissions to get the total VOC 

emissions. 

15 micro-grams per cubic meter (μg/m3). 

The annual PM2.5 design value for 

Southeast Florida for the period of 

2004–2006 was 9.5 μg/m3. 

On October 17, 2006, EPA 

promulgated a revised NAAQS for 

PM2.5. The effective date for the new 

standard was December 18, 2006. EPA 

retained the annual PM2.5 standard of 15 

μg/m3 and revised the 24-hour PM2.5

standard, changing it from 65 μg/m3 to 

35 μg/m3. FDEP submitted a letter dated 

December 12, 2007, which 

recommended that the entire State of 

Florida be designated as attainment for 

PM2.5. 

Although the Southeast Florida Area 

is in attainment for the 1-hour ozone, 8- 

hour ozone and PM2.5 standards, section 

110(l) still requires that this area 

demonstrate noninterference for any SIP 

revision related to these standards. 

On March 12, 2008, EPA strengthened 

its NAAQS for ground-level ozone, the 

primary component of smog. These 

changes will improve protection of both 

public health and sensitive trees and 

plants. EPA is revising the 8-hour 

‘‘primary’’ ozone standard, designed to 

protect public health, to a level of 0.075 

parts per million (ppm). The previous 

standard, set in 1997, was 0.08 ppm. 

The Southeast Florida Area 8-hour 

ozone standard design values for the 

years 2004–2006 are as follows: 0.072 

ppm for Dade, 0.066 ppm for Broward 

and 0.066 ppm for Palm Beach. These 

levels are below both the 1997 8-hour 

ozone standard and the 2008 8-hour 

ozone standard. 

3. Noninterference Demonstration for 

Removal of Stage II 

Removing the Stage II vapor recovery 

requirement from the Southeast Florida 

Area’s portion of the Florida SIP may 

result in a small, temporary increase in 

VOC emissions within the three 

Southeast Florida counties. However, as 

explained below, implementation of the 

ORVR requirements ensures 

noninterference with the NAAQS. The 

following table shows the expected 

emission changes in comparison with 

the emissions that would occur if the 

Stage II vapor recovery requirement 

were to remain in force. 

TABLE 1—VOC EMISSIONS FROM VEHICLE REFUELING (STAGE II) 

[Tons per day (tpd)] 

2005 2010 2015 

With Stage II With Stage II Without Stage II With Stage II Without Stage II 

Miami-Dade .................................. 1.43 1.04 3.22 0.87 2.04 

Broward ........................................ 1.26 0.92 2.86 0.78 1.81 

Palm Beach .................................. 0.95 0.71 2.19 0.61 1.42 

SE Florida Total ........................... 3.64 2.67 8.27 2.26 5.27 

EPA’s analysis involved a comparison 

of the VOC emissions attributed to the 

Stage II program (see, Table 1 above) to 

the total VOC emissions projected for 

the Southeast Florida Area in the most 

recent 1-hour ozone maintenance plan 2

(see Table 2 below). 

TABLE 2—TOTAL VOC 3 EMISSIONS FROM SOUTHEAST FLORIDA AREA WITH & WITHOUT VEHICLE REFUELING (STAGE II) 

[tpd] 

1990 2005 2010 2015 

Without Stage II With Stage II With Stage II Without Stage II With Stage II Without Stage II 

Miami-Dade ...................... 399.8 208.3 200.0 202.1 191.6 192.8 

Broward ............................ 239.6 154.6 145.3 147.2 135.9 136.9 

Palm Beach ...................... 228.4 149.7 143.2 144.7 136.7 137.5 

SE Florida Total ............... 867.8 512.6 488.4 494.0 464.2 467.2 

Since 1990, the year that the 

Southeast Florida Area came into 

attainment with the 1-hour standard, 

VOC emissions from all sources have 

continued to decline. From a 1990 value 

of 867.8 tpd, VOC emissions decreased 

to 512.6 tpd in 2005. As a result of 

turnover of the vehicle fleet and other 

programs designed to reduce emissions, 

VOC emissions in the Southeast Florida 

Area are expected to further decline to 

488.4 tpd and 464.2 tpd in 2010 and 

2015, respectively, if the Stage II vapor 

recovery program is continued (and 

does not produce ORVR 

incompatibility-related excess 

emissions). Without credit for the Stage 

II program, the VOC emissions would 

potentially be 494.0 tpd in 2010 and 

467.2 tpd in 2015, which is still below 

current levels and well below the 1990 

attainment-year emissions ‘‘ceiling.’’ 

Thus, the additional emissions that may 

result from the phase-out of the Stage II 

program do not appear to compromise 

continued attainment of the former 1- 

hour ozone standard or the more 

restrictive 8-hour ozone standard. 

Any VOC emissions increase that may 

result from the phase out of the Stage II 

program is not expected to cause a 

violation of the 8-hour ozone standard 

in the Southeast Florida Area. An 

analogous emissions ceiling for 

maintenance of the 8-hour standard can 

be approximated. Although the threecounty Southeast Florida Area has never 

violated the 8-hour standard, the years 

1988 and 1989 had the closest design 

values to the level of the standard (84 

ppb and 83 ppb, respectively). Since 

VOC emissions have steadily decreased 

over the last two decades, emissions in 

1988 and 1989 were greater than 1990 

emissions. Thus, the 1990 attainmentVerDate Aug<31>2005 14:22 Sep 15, 2008 Jkt 214001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\16SER1.SGM 16SER1

ebenthall on PROD1PC60 with RULES
Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 53381 

year emissions ceiling, as determined 

for the 1-hour standard, represents a 

reasonable emissions ceiling for 

maintenance of the 8-hour standard, and 

the logic given above for 

noninterference with maintenance of 

the former 1-hour standard applies also 

to the current 8-hour standard. As 

mentioned previously in this 

rulemaking, the Southeast Florida Area 

has current monitoring data that 

demonstrates attainment with the 8- 

hour ozone standard. 

It is expected that the removal of the 

Stage II gasoline vapor recovery program 

in the Southeast Florida Area will not 

interfere with continued compliance 

with the PM2.5 standard. EPA’s review 

of the available information indicates 

that sulfates and carbon make up 

approximately 70 percent of the 

precursors for PM2.5 formation in 

Florida. As mentioned previously in 

this rulemaking, the Southeast Florida 

Area has current monitoring data that 

demonstrates attainment with both the 

annual and the daily PM2.5 standards. 

Based on the factors mentioned above, 

EPA believes that Florida’s 

demonstration to remove the Stage II 

requirement from the Florida SIP for the 

Southeast Florida Area is consistent 

with section 110(l) of the CAA and will 

not interfere with compliance for the 

new NAAQS in the Southeast Florida 

Area. 

B. Requested Approval of Statewide 

Stage I Vapor Control Requirements 

Florida’s Stage I vapor recovery is 

currently required for gasoline 

dispensing facilities in the seven 

counties designated as maintenance 

areas for ozone (Duval, Orange, 

Hillsborough, Pinellas, Palm Beach, 

Broward, and Miami-Dade). In addition 

to removing Stage II requirements for 

Southeast Florida, this SIP revision will 

require Stage I vapor recovery at new 

and upgraded gasoline dispensing 

facilities statewide; phase in Stage I 

vapor recovery statewide for existing 

gasoline dispensing facilities not 

previously required to have Stage I; and 

require tanker trucks and trailers to 

ensure connection of the vapor return 

line at facilities equipped for Stage I 

vapor recovery statewide. The phase-in 

of Stage I vapor control on a statewide 

basis will likely result in a net reduction 

in air pollutant transport across 

Florida’s borders. 

III. Final Action 

EPA is approving the SIP revision 

submitted by the State of Florida for the 

purpose of removing Stage II vapor 

control requirements for new and 

upgraded gasoline dispensing facilities 

in Miami-Dade, Broward, and Palm 

Beach Counties, and phasing out Stage 

II requirements for existing facilities in 

those counties. EPA is also approving 

rule changes which would require new 

and upgraded gasoline dispensing 

facilities and new bulk gasoline plants 

statewide to employ Stage I vapor 

control systems, and it would phase in 

Stage I vapor control requirements 

statewide for existing gasoline 

dispensing facilities. This SIP revision 

includes changes to F.A.C. Chapters 62– 

210.200 Definitions, 62–210.310 Air 

General Permits, 62–210.920 Air 

General Permit Forms, 62–252.200 

Definitions, 62–252.300 Gasoline 

Dispensing Facilities—Stage I Vapor 

Recovery, 62–252.400 Gasoline 

Dispensing Facilities—Stage II Vapor 

Recovery, 62–252.500 Gasoline Tanker 

Trucks, 62–296–418 Bulk Gasoline 

Plants, and 62–296.509 Bulk Gasoline 

Plants (Repealed). 

EPA is publishing this rule without 

prior proposal because the Agency 

views this as a non-controversial 

submittal and anticipates no 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 adverse comments be filed. This 

rule will be effective November 17, 2008 

without further notice unless the 

Agency receives adverse comments by 

October 16, 2008. 

If EPA receives such comments, then 

EPA will publish a document 

withdrawing the final rule and 

informing the public that the rule will 

not take effect. All public comments 

received will then be addressed in a 

subsequent final rule based on the 

proposed rule. EPA will not institute a 

second comment period. Parties 

interested in commenting should do so 

at this time. If no such comments are 

received, the public is advised that this 

rule will be effective on November 17, 

2008 and no further action will be taken 

on the proposed rule. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action 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 


ebenthall on PROD1PC60 with RULES
53382 Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 17, 2008. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action 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, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: August 29, 2008. 

Russell L. Wright, Jr. 

Regional Administrator, Region 4. 

■ 40 CFR part 52 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 K Florida 

■ 2. Section 52.520(c) is amended by: 

■ a. Revising entries for ‘‘62–210.200’’, 

‘‘62–210.300’’, ‘‘62–252.200’’, ‘‘62– 

252.300’’, ‘‘62–252.400’’, ‘‘62–252.500’’, 

‘‘62–296.509’’ and 

■ b. Adding entries for ‘‘62–210.310’’, 

‘‘62–210.920’’, and ‘‘62–296.418’’ to 

read as follows: 

52.520 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED FLORIDA REGULATIONS

State citation Title/subject State effective 

date EPA approval date Explanation 

* * * * * * * 

Chapter 62–210 Stationary Sources—General Requirements 

* * * * * * * 

62–210.200 ....... Definitions ..................................... 9/4/06 9/16/08 

[Insert citation of publication].

* * * * * * * 

62–210.300 ....... Permits Required .......................... 9/4/06 9/16/08 

[Insert citation of publication].

62–210.310 ....... Air General Permits ...................... 9/4/06 9/16/08 

[Insert citation of publication].

* * * * * * * 

62–210.920 ....... Air General Permit Forms ............. 9/4/06 9/16/08 

[Insert citation of publication].

* * * * * * * 

Chapter 62–252 Gasoline Vapor Control 

* * * * * * * 

62–252.200 ....... Definitions ..................................... 9/4/06 9/16/08 

[Insert citation of publication].

62–252.300 ....... Gasoline Dispensing Facilities— 

Stage I Vapor Recovery.

9/4/06 9/16/08 

[Insert citation of publication].

62–252.400 ....... Gasoline Dispensing Facilities— 

Stage II Vapor Recovery.

9/4/06 9/16/08 

[Insert citation of publication].

62–252.500 ....... Gasoline Tanker Trucks ................ 9/4/06 9/16/08 

[Insert citation of publication].

* * * * * * * 

Chapter 62–296 Stationary Sources—Emission Standards 

* * * * * * * 

62–296.418 ....... Bulk Gasoline Plants ..................... 9/4/06 9/16/08 

[Insert citation of publication].

* * * * * * * 

62–296.509 ....... Bulk Gasoline Plants ..................... ........................ ....................................................... Repealed. 

* * * * * * * 


ebenthall on PROD1PC60 with RULES
Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 53383 

1http://www.safersys.org/ 

HazMatRatesPost.aspx#OOSRates. 

* * * * * 

[FR Doc. E8–21303 Filed 9–15–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 385 

FMCSA Policy on Considering the 

Preventability of Crashes in 

Administrative Review Requests of 

Hazardous Materials Safety Permit 

Denials Based Upon Crash Rates in 

the Top 30 Percent of the National 

Average Under 49 CFR 385.407 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA). 

ACTION: Notice of enforcement policy. 

SUMMARY: FMCSA may not issue a 

hazardous materials safety permit 

(safety permit) to a motor carrier that 

has a crash rate, driver, vehicle or 

hazardous material out-of-service rate in 

the top 30 percent of the national 

average pursuant to 49 CFR 385.407. 

This document provides notice of 

FMCSA policy that it will consider 

preventability when a motor carrier 

contests the denial of a safety permit 

based upon a crash rate in the top thirty 

percent of the national average and 

presents compelling evidence that one 

or more of the crashes listed in the 

Motor Carrier Management Information 

System (MCMIS) was not preventable 

and thus not reflective of the motor 

carrier’s suitability to transport the type 

and quantity of hazardous materials that 

require a safety permit. Preventability is 

determined by the following standard: If 

a driver who exercises normal judgment 

and foresight could have foreseen the 

possibility of the accident that in fact 

occurred, and avoided it by taking steps 

within his/her control which would not 

have risked causing another kind of 

mishap, the accident was preventable. 

FMCSA currently uses this standard in 

evaluating accident factors under its 

safety rating process. 

DATES: Effective Date: September 16, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

James O. Simmons, Office of 

Enforcement and Compliance, 

Hazardous Materials Division, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590, (202) 493–0496 (voice), 

james.simmons@dot.gov (e-mail), Debra 

S. Straus, Office of the Chief Counsel, 

(202) 366–2266 (voice), or 

debra.straus@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: On June 

30, 2004, FMCSA issued a Final Rule 

containing the regulations 

implementing the safety permit 

program. 69 FR 39350. The Final Rule, 

codified at 49 CFR part 385, identifies 

who must hold a safety permit, 

establishes the application process for a 

safety permit, and the conditions that 

must be satisfied before FMCSA will 

issue a safety permit to a carrier. These 

conditions are set out in 49 CFR 

385.407. 

Background 

Section 385.407 requires that a carrier 

have a ‘‘Satisfactory’’ safety rating, 

certify that it has a satisfactory security 

program, and be properly registered 

with the Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA). 49 CFR 385.407(a)(1), 

385.407(b) & (c). Section 385.407(a)(2) 

additionally states that: 

FMCSA will not issue a safety permit to a 

motor carrier that: (ii) Has a crash rate in the 

top 30 percent of the national average as 

indicated in the FMCSA Motor Carrier 

Management Information System (MCMIS); 

or 

(iii) Has a driver, vehicle, hazardous 

materials, or total out-of-service rate in the 

top 30 percent of the national average as 

indicated in the MCMIS; 

The safety permit requirement became 

effective for motor carriers on the date 

after January 1, 2005, when the motor 

carrier was required to file a Motor 

Carrier Identification Report Form 

(MCS–150) according to a schedule set 

forth in 49 CFR 390.19(a). The 

application for the safety permit was 

incorporated into the MCS–150, as an 

expanded form entitled ‘‘MCS–150B or 

Combined Motor Carrier Identification 

Report and HM Permit Application.’’ 

On or about January 3, 2005, the 

Office of Enforcement and Compliance 

(OEC) published on its public Web site 1

the formula used to determine the 

national averages and the crash rates 

and driver, vehicle and hazmat out-ofservice (OOS) rates that establish the 

thresholds for the ‘‘top 30 percent of the 

national average.’’ The Web site also 

instructed motor carriers on how to 

calculate their own out-of-service rates. 

This information on calculating the 

national averages, crash rates and outof-service rates was subsequently 

published in the Federal Register. 72 FR 

62795 (Nov. 7, 2007). 

Crash Rates 

FMCSA may not issue a safety permit 

to a motor carrier that has a crash rate 

in the top 30 percent of the national 

average as indicated in the MCMIS. 49 

CFR 385.407(a)(2)(ii). The threshold 

crash rate above which a carrier falls 

within the worst performing or top 

thirty percent of the national average is 

recalculated every two years using the 

crash data from the previous two years. 

The cut-off for motor carrier crash rates 

above which a carrier will fall into the 

top 30 percent of the national average 

has remained at 0.125 since the 

inception of the program. 

To determine the crash rate for an 

individual carrier that is applying for a 

safety permit, FMCSA examines one 

year of crash data. FMCSA divides the 

number of crashes for the previous 

twelve-month period by the total 

number of power units that the motor 

carrier operated during that twelvemonth period. For example, if a motor 

carrier had 2 crashes and 10 power 

units, the crash rate would be 0.20 

based upon a calculation of (2 ÷ 10 = 

0.20). FMCSA examines one year of data 

to remain consistent with FMCSA 

practice of reviewing one year of records 

during a compliance review. FMCSA 

does not consider a single crash to be 

statistically valid. Thus, crash rates will 

be calculated only for carriers with more 

than one crash in the relevant twelvemonth period. 

Preventability 

Petitions for rulemaking filed by the 

Institute of Makers of Explosives and 

The Fertilizer Institute requested the 

Agency to consider crash preventability 

when evaluating a motor carrier’s crash 

rate under the safety permit program, in 

the same manner that accident 

preventability is considered when a 

motor carrier contests an unfavorable 

safety rating. In the Agency’s response 

to these petitions issued on June 21, 

2007, the FMCSA Administrator agreed 

that the same preventability criteria 

used in assessing the ‘‘Accident Factor’’ 

under 49 CFR part 385, Appendix 

A.III.B(d), should be applied when a 

carrier contests denial of a safety permit 

application based upon its crash rate 

and provides compelling evidence a 

crash was not preventable. 

The preventability standard found in 

Appendix A to Part 385, section III.B(d) 

states: 

The FMCSA will continue to consider 

preventability when a new entrant contests 

the evaluation of the accident factor by 

presenting compelling evidence that the 

recordable rate is not a fair means of 

evaluating its accident factor. Preventability 

will be determined according to the following 

standard: ‘‘If a driver who exercises normal 

judgment and foresight could have foreseen 

the possibility of the accident that in fact 


ebenthall on PROD1PC60 with RULES