

[Federal Register: April 6, 2006 (Volume 71, Number 66)]
[Rules and Regulations]               
[Page 17352-17358]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap06-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0019, FRL-8054-5]
RIN 2060-AK10

 
National Emission Standards for Gasoline Distribution Facilities 
(Bulk Gasoline Terminals and Pipeline Breakout Stations)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final decision; and final rule, amendment.

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SUMMARY: On December 14, 1994, we promulgated National Emission 
Standards for Gasoline Distribution Facilities (Bulk Gasoline Terminals 
and Pipeline Breakout Stations). Section 112(f)(2) of the Clean Air Act 
directs us to assess the risk remaining (residual risk) after the 
application of national emission standards controls for hazardous air 
pollutants. Also, section 112(d)(6) requires us to review and revise 
the national emission standards as necessary by taking into account 
developments in practices, processes, and control technologies. On 
August 10, 2005, we proposed not to revise the national emission 
standards based on our residual risk assessment and technology review. 
This action finalizes that decision not to revise the national emission 
standards and amends a reference error.

DATES: This final decision and final rule amendment is effective on 
April 6, 2006.

ADDRESSES: We have established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2004-0019. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 

information is not publicly available, e.g., confidential business 
information 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 through http://www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, EPA West, Room B-102, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air and Radiation Docket is 
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT:
    General and Technical Information. Mr. Stephen Shedd, Office of Air 
Quality Planning and Standards, Sector Policies and Programs Division, 
Coatings and Chemicals Group (E143-01), Environmental Protection 
Agency, Research Triangle Park, North Carolina 27711, telephone (919) 
541-5397, facsimile number (919) 685-3195, electronic mail (e-mail) 
address: shedd.steve@epa.gov.
    Residual Risk Assessment Information. Mr. Ted Palma, Office of Air 
Quality Planning and Standards, Health and Environmental Impacts 
Division, Sector Based Assessment Group (C539-02), Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711, 
telephone (919) 541-5470, facsimile number (919) 541-0840, electronic 
mail (e-mail) address: palma.ted@epa.gov.

SUPPLEMENTARY INFORMATION:
    Regulated Entities. The regulated categories and entities affected 
by the national emission standards include:

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                 Category                  NAICS \a\  (SIC \b\)           Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry.................................     324110     (2911)  Operations at major sources that transfer and
                                              493190     (4226)   store gasoline, including petroleum
                                              486910     (4613)   refineries, pipeline breakout stations, and
                                              424710     (5171)   bulk terminals.
Federal/State/local/tribal governments
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\a\ North American Industry Classification System.
\b\ Standard Industrial Classification.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by the 
national emission standards. To determine whether your facility would 
be affected by the national emission standards, you should examine the 
applicability criteria in 40 CFR 63.420. If you have any questions 
regarding the applicability of the national emission standards to a 
particular entity, consult either the air permit authority for the 
entity or your EPA regional representative as listed in 40 CFR 63.13.
    World Wide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's final decision will also be available on 
the WWW through the Technology Transfer Network (TTN). Following 
signature, a copy of the final decision will be posted on the TTN's 
policy and guidance page for newly proposed or promulgated rules at the 
following address: http://www.epa.gov/ttn/oarpg/. The TTN provides 

information and technology exchange in various areas of air pollution 
control.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of this final decision is available only by 
filing a petition for review in the United States Court of Appeals for 
the District of Columbia Circuit by June 5, 2006. Under section 
307(d)(7)(B) of the CAA, only an objection to a rule or procedure 
raised with reasonable specificity during the period for public comment 
can be raised during judicial review. Moreover, under section 307(b)(2) 
of the CAA, the requirements established by the final decision may not 
be challenged separately in civil or criminal proceedings brought to 
enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This

[[Page 17353]]

section also provides a mechanism for us to convene a proceeding for 
reconsideration, ``[i]f the person raising an objection can demonstrate 
to the EPA that it was impracticable to raise such objection within 
[the period for public comment] or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule.'' Any person seeking to make such 
a demonstration to us should submit a Petition for Reconsideration to 
the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios 
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a 
copy to both the person(s) listed in the preceding FOR FURTHER 
INFORMATION CONTACT section, and the Associate General Counsel for the 
Air and Radiation Law Office, Office of General Counsel (Mail Code 
2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
    A. What Is the Statutory Authority for These Actions?
    B. What Did We Propose?
II. Risk and Technology Review Final Decision
III. Summary of Comments and Responses
IV. Correction to the December 19, 2003 Final Rule
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Background

A. What Is the Statutory Authority for These Actions?

    Section 112 of the CAA establishes a comprehensive regulatory 
process to address hazardous air pollutants (HAP) from stationary 
sources. In implementing this process, we have identified categories of 
sources emitting one or more of the HAP listed in the CAA, and gasoline 
distribution facilities are identified as one such source category. 
Section 112(d) requires us to promulgate national technology-based 
emission standards for sources within those categories that emit or 
have the potential to emit any single HAP at a rate of 10 tons or more 
per year or any combination of HAP at a rate of 25 tons or more per 
year (known as major sources), as well as for certain area sources 
emitting less than those amounts. These technology-based national 
emission standards for hazardous air pollutants (NESHAP) must reflect 
the maximum reductions of HAP achievable (after considering cost, 
energy requirements, and nonair health and environmental impacts) and 
are commonly referred to as maximum achievable control technology 
(MACT) standards. We promulgated the National Emission Standards for 
Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline 
Breakout Stations) at 59 FR 64318 on December 14, 1994 (Gasoline 
Distribution NESHAP).
    In what is referred to as the technology review, we are required 
under section 112(d)(6) of the CAA to review these technology-based 
standards no less frequently than every 8 years. Further, if we 
conclude that a revision is necessary, we have the authority to revise 
these standards, taking into account ``developments in practices, 
processes, and control technologies.''
    The residual risk review is described in section 112(f) of the CAA. 
Section 112(f)(2) requires us to determine for each section 112(d) 
source category, except area source categories for which we issued a 
generally available control technology standard, whether the NESHAP 
protects public health with an ample margin of safety. If the NESHAP 
for HAP ``classified as a known, probable, or possible human carcinogen 
do not reduce lifetime excess cancer risks to the individual most 
exposed to emissions from a source in the category or subcategory to 
less than one in one million,'' we must decide whether additional 
reductions are necessary to provide an ample margin of safety. As a 
part of this decision, we may consider costs, technological 
feasibility, uncertainties, or other relevant factors. We must 
determine whether more stringent standards are necessary to prevent 
adverse environmental effect (defined in section 112(a)(7) as ``any 
significant and widespread adverse effect, which may reasonably be 
anticipated to wildlife, aquatic life, or other natural resources, 
including adverse impacts on populations of endangered or threatened 
species or significant degradation of environmental quality over broad 
areas''), but in making this decision we must consider cost, energy, 
safety, and other relevant factors.

B. What Did We Propose?

    We promulgated the Gasoline Distribution NESHAP in 1994. On August 
10, 2005 (70 FR 46452), we proposed to take no further action to revise 
the Gasoline Distribution NESHAP and requested public comments on the 
residual risk and technology review for the Gasoline Distribution 
NESHAP.

II. Risk and Technology Review Final Decision

    In our proposal, we presented the analysis and conclusions on 
residual risk and technology review, concluding that the maximum 
individual cancer risk for this source category already meets the level 
of 100 in 1 million that we generally consider acceptable, and that 
further control requirements would achieve minimal additional risk 
reduction at a very high cost. Further, the analyses showed that both 
the chronic noncancer and acute risks from this source category are 
below their respective relevant health thresholds, and that there are 
no adverse impacts to the environment (i.e., ecological risks). As a 
result, we concluded that no additional control should be required 
because an ample margin of safety (considering cost, technical 
feasibility, and other factors) has been achieved by the 1994 NESHAP 
for the gasoline distribution source category.
    In the technology review, we concluded that additional controls at 
existing sources would achieve, at best, minimal emission and risk 
reductions at a very high cost. Additionally, we did not identify any 
significant developments in practices, processes, or control 
technologies since promulgation of the original standards in 1994 which 
represent the best controls. Thus, we proposed no additional controls 
under the technology review under CAA section 112(d)6).
    We conclude in this rulemaking, as proposed, that there is not a 
need to revise the Gasoline Distribution NESHAP under the provisions of 
CAA section 112(f) or 112(d)(6).

III. Summary of Comments and Responses

    The proposal provided a 60-day comment period ending October 11, 
2005. We received comments from eight commenters. Commenters included 
one State agency, one State and local agency association, three 
industry trade associations, one industrial consultant, and two 
individual commenters. We

[[Page 17354]]

have considered the public comments as discussed below and did not find 
that the comments changed any results of our risk or technology reviews 
or analyses, or any of our determinations.

1. General Approach

    Comment: We received comments both in favor of and objecting to the 
consideration of facilitywide emissions in the risk analyses; objecting 
to what was perceived as an implication within the proposal that we 
must conduct mandatory facilitywide risk determinations in future CAA 
section 112(f) rulemakings; and concerns with emissions from other 
source categories at the facility providing an overly conservative 
analysis not consistent with the CAA.
    Response: In our ample margin of safety analysis, we calculated 
residual risk from facilitywide emissions of the nine HAP found in 
gasoline. However, we did not have sufficiently detailed information to 
analyze the emissions from various specific sources within a facility 
but outside the gasoline distribution source category. Because the 
facilities in this source category also frequently handle other, non-
gasoline, petroleum products, we could not always associate the 
reported emissions to a particular source category. As a result, we 
could not evaluate the existing levels of control or the potential for 
applying additional controls at the facilities where HAP emissions from 
non-gasoline distribution sources contributed to the risk. Therefore, 
as stated in the August 2005 proposal, we did not use the residual risk 
calculated from facilitywide emissions in our decision to require no 
additional controls because we did not have the control cost and 
feasibility data necessary to do so.
    Our position on the potential consideration of both source 
category-only emissions and facilitywide emissions is fully discussed 
in the final Coke Oven Batteries NESHAP (70 FR 19996-19998, April 15, 
2005).
    Comment: Comments were received objecting to the need to perform a 
separate technology review for the source category.
    Response: As discussed in the proposal, we performed a separate 
technology review for the gasoline distribution source category under 
section 112(d)(6), but recommended no changes to the NESHAP. It is 
possible that future advances in control technologies for this source 
category could allow for further emission reductions (possibly reducing 
risk to below 1 in 1 million) at a reasonable cost. We continue to 
believe that the technology review required under section 112(d)(6) is 
applicable to this source category.

2. Risk Analysis Assumptions

    Comment: One commenter stated that the methodology used in the 
gasoline distribution risk assessment sets a poor precedent for future 
residual risk determinations that must be carried out for other source 
categories, recommending that, because there is no mechanism to revisit 
the section 112(f) assessments, the risk assessment be corrected to 
account for reasonably foreseeable changes that could result in 
increased risk.
    Response: We disagree with the commenter's assertions that there is 
no mechanism to revisit risks from the source category and that the 
risk assessment must include consideration of foreseeable changes that 
may occur in the future. We have the authority to revisit (and revise, 
if necessary) any rulemaking if there is sufficient evidence that 
changes within the affected industry or significant improvements to 
science suggests the public is exposed to significant increases in risk 
as compared to the risk assessment prepared for the rulemaking (e.g., 
CAA section 301).
    Comment: One commenter stated that the use of a number of overly 
conservative assumptions make the modeling results more conservative 
than necessary and do not accurately reflect reality. Another commenter 
also pointed out these same conservative assumptions and stated that 
``the conservative level of analysis determined that the risk was 
acceptable, and thus, there was no need to go further with the 
analysis.''
    Response: We agree with the second commenter. Several assumptions 
mentioned by the commenters as conservative are used in the risk 
assessment because the specific intent of that risk assessment is to 
perform an initial screening analysis. If this initial conservative 
risk assessment predicts negligible levels of risk, then no further 
analysis or action would be required. However, if it showed 
unacceptable risk, then additional data would be collected and 
incorporated into a refined analysis so that the results would more 
accurately reflect the true risks posed by the source category. Our 
position is that this type of screening approach is valuable because it 
allows us to focus resources on source categories that potentially pose 
unacceptable risks versus those that pose clearly negligible risks.
    Other assumptions mentioned by commenters as being overly 
conservative include the use of the 24 hours a day, 7 days a week, 70-
year exposure duration for determining maximum individual risk (MIR) 
and the use of a Hazard Index threshold of 1.0. In the final Coke Oven 
Batteries NESHAP, we stated that we are currently working on additional 
revisions to refine the residual risk analysis. A more realistic 
assessment of population mobility is part of this effort (70 FR 20004, 
April 15, 2005). Our rationale for the use of both the exposure 
duration and the Hazard Index threshold that were used in this 
assessment is fully addressed in the final Coke Oven Batteries NESHAP 
(70 FR 19999-20000, April 15, 2005).
    Comment: Two commenters recommended that the impacts be 
recalculated based on concentrations at the property line and beyond, 
rather than at the centroid of the most highly-exposed census block; 
because census blocks can be large geographically, the maximum point of 
impact can be far from the centroid and, thus, the use of the census 
block centroid does not take into account the maximum exposed 
individual who may live adjacent to the fence-line.
    Response: In a national-scale assessment of lifetime inhalation 
exposures and health risks from a category of facilities, it is 
appropriate to identify exposure locations where an individual may 
reasonably be expected to spend a majority of his or her lifetime. 
Further, it is appropriate to use census block information on where 
people actually reside, rather than points on a fence-line, to locate 
the estimation of exposures and risks to individuals living near such 
facilities. This is the approach that we took for this analysis to 
predict the MIR.
    Census blocks are the finest resolution available for the 
nationwide population data set (as developed by the United States 
Census Bureau); each is typically comprised of approximately 40 people 
or about 10 households. In our risk assessments, we use the geographic 
centroid of each census block containing at least one person to 
represent the location where all the people in that census block live. 
The census block centroid with the highest estimated exposure then 
becomes the location of maximum exposure, and the entire population of 
that census block experiences the MIR. In some cases, since actual 
residence locations may be closer to or farther from facility emission 
points, this may result in an overestimate or underestimate of the 
actual chronic risks. However, given the relatively small dimensions of 
census blocks in densely-populated areas and

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the relatively large number of sources being assessed for any given 
source category, these uncertainties are small and do not bias our 
estimates of MIR for a source category.
    Comment: Two commenters recommended that the risk assessment be 
based on potential emissions rather than on only actual reported 
emissions, stating that facility emissions could increase over time and 
that determining risk based on actual emissions does not address the 
potential risk to the public. One commenter stated that major source 
HAP thresholds are based on maximum potential to emit and that air 
agencies issue permits based on potential emissions, further stating 
that limiting the scope of the risk evaluation to actual emissions is 
inconsistent with the CAA section 112 rules.
    Response: Our position on the use of both allowable and actual 
emissions is fully discussed in the final Coke Oven Batteries NESHAP 
(70 FR 19998-19999, April 15, 2005). We used reported emissions (from 
the National Emissions Inventory database) for the gasoline 
distribution risk analysis. The reported emissions are a mix of actual, 
allowable, and potential emissions, but we do not have the necessary 
information to distinguish between the types of data reported. While we 
generally recognize that most facilities overcomply with the MACT 
requirements (thus, actual emissions are lower than allowable), we do 
not have data to determine the degree of overcompliance that facilities 
are achieving or reporting. However, the possible inclusion of actual 
emissions in our analysis is not significant enough to change the 
results even if we could more accurately account for it. For example, 
if the modeled emissions doubled because of our use of some reported 
actual emissions, the regulatory decision would be the same as 
proposed.
    Comment: One commenter recommended that the effects of building 
downwash be included in the risk assessment. The commenter stated that 
downwind concentrations from a point source vary and that the 
concentrations are skewed highest close to a source when it is affected 
by building downwash.
    Response: While the effects of building downwash are not 
specifically accounted for in the model (Human Exposure Model--Screen) 
used, these effects generally occur only very close to the buildings or 
structures from which emissions emanate, and in most cases, only occur 
on the property of the facility. Further, for this source category, 
emissions are from low-level structures (i.e., storage tanks and tank 
truck loading racks), and this minimizes the impacts of downwash. In 
determining the MIR for this source category, we note that the 
locations of the census block centroids where the risks are maximum are 
well beyond the zone of influence of any building downwash effects.
    Comment: One commenter stated that the cost-effectiveness analysis 
should have been performed in terms of dollars per cancer incidence 
reduced (rather than dollars per ton of emissions reduced) because it 
takes into account toxicity and exposure.
    Response: Our residual risk decisions are based on the approach in 
the 1989 benzene decision framework.\1\ In that decision, we stated 
that the level of the MIR, distribution of risk in exposed population, 
incidence, science policy assumptions, and uncertainties associated 
with risk measures, and weight of evidence that a pollutant is harmful 
to health are all important factors which may be considered in the 
acceptability judgment (first step). In the second step, we again 
consider all of the health risk and other health information considered 
in the first step. Beyond that information, additional factors relating 
to the appropriate level of control will also be considered, including 
costs and economic impacts of controls, technological feasibility, 
uncertainties, and any other relevant factors.
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    \1\ Our decisions regarding residual risk in the gasoline 
distribution and other source categories follows the two-step 
framework established in the Benzene NESHAP (54 FR 38044, September 
14, 1989, National Emission Standards for Hazardous Air Pollutants 
(NESHAP): Benzene Emissions from Maleic Anhydride Plants, 
Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene 
Equipment Leaks, and Coke By Product Recovery Plants). In the 
Benzene NESHAP, we interpreted and applied the two-step test drawn 
from the D.C. Circuit Court's Vinyl Chloride opinion.
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    For the Gasoline Distribution NESHAP ample margin of safety 
analysis, we developed cost data for a hypothetical model terminal to 
apply additional controls because we do not have data on the actual 
control levels being achieved at real terminals. Thus, we do not have 
data on the actual emission reductions that could be achieved or on the 
control costs that real terminals would incur. We examined the 
hypothetical emission reductions (at best, a 30 percent reduction) that 
could be achieved through the application of additional controls and 
the estimated costs of these additional controls.
    We found the 30 percent reduction would reduce the highest 
calculated MIR cancer risk from this source category from about 5 in 1 
million to about 3 in 1 million. Given these relatively low risk 
reductions and lack of data concerning actual controls at real 
terminals, we did not further consider incidence or change in 
distribution of risks. The costs and emission reductions of these 
additional controls were compared to the controls required by the MACT 
standards and we found the additional costs to be very high compared to 
the emission reduction of the MACT standards and considering the 
limited risk reduction these controls would achieve. Thus, our model 
terminal analysis led us to conclude in our ample margin of safety 
decision that ``additional control requirements would achieve minimal 
risk reduction at a very high cost'' (70 FR 46456, August 10, 2005). 
Thus, while we did not calculate cost effectiveness, we did account for 
toxicity, exposure, and control costs in our decision, as the commenter 
recommended.

3. Conclusions

    Comment: One commenter does not believe the current standards for 
gas distribution facilities protect children and recommended that we 
consult a children's environmental health toxicologist due to recent 
research on the risks posed by these facilities.
    Response: The commenter did not provide or reference a particular 
research study. Our most recent assessment activity on cancer effects 
due to early-life exposure is reflected in the ``Supplemental Guidance 
for Assessing Susceptibility from Early-Life Exposure to Carcinogens'' 
(EPA/630/R-03/003F, March 2005). The Supplemental Guidance addresses a 
number of issues pertaining to cancer risks associated with early-life 
exposures generally, but provides specific guidance on potency 
adjustments only for carcinogens that have been determined to cause 
cancer through a mutagenic mode of action. While some recent articles 
have suggested an association between gasoline vapors and childhood 
leukemia, the carcinogenic HAP commonly found in gasoline (benzene and 
naphthalene) have not yet been determined by us to act through a 
mutagenic mode of action. If we determine in the future that these 
pollutants do cause cancer by a mutagenic mode of action, and assuming 
early life exposure, the approximately 60 percent increase in estimated 
lifetime cancer risk would still result in a risk well below the 
generally considered acceptable level of 100 in 1 million. In addition, 
regarding effects other than cancer, EPA Reference Concentration values 
are designed to be protective of sensitive populations, including 
children.

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IV. Correction to the December 19, 2003 Final Rule

    On August 18, 1983, we promulgated Standards of Performance for 
Bulk Gasoline Terminals (48 FR 37590) and on December 14, 1994, we 
promulgated National Emission Standards for Gasoline Distribution 
Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) (59 
FR 64318). On December 19, 2003, we promulgated final rule amendments 
in the Federal Register (68 FR 70960) for the 1983 standards of 
performance and 1994 national emission standards. An error was 
subsequently discovered in a cross-reference in the final rule 
amendments. Under 40 CFR 63.428, Reporting and Recordkeeping, paragraph 
(b)(1) refers to 40 CFR 63.425(k). The correct reference is to 40 CFR 
63.425(i). Today's final amendment corrects the reference error.
    This correction does not affect the substance of the above-noted 
regulatory action, nor does it change the rights or obligations of any 
party. Thus, it is proper to issue this notice of final rule 
corrections without notice and comment. Section 553 of the 
Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when 
an agency for good cause finds that notice and public procedure are 
impracticable, unnecessary, or contrary to the public interest, the 
agency may issue a rule without providing notice and an opportunity for 
public comment. We have determined that there is good cause for making 
today's action final without prior proposal and opportunity for comment 
because the change to the rule is a minor correction, is 
noncontroversial, and does not substantively change the agency actions 
taken in the final rule. Thus, notice and public procedure are 
unnecessary. We find that this constitutes good cause under 5 U.S.C. 
553(b)(B).

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and, 
therefore, subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Executive Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal government communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. We have submitted this action to 
OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
However, OMB has previously approved the information collection 
requirements for the national emissions standards under the provisions 
of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and has 
assigned OMB control number 2060-0325, EPA ICR number 1659. A copy of 
the OMB approved Information Collection Request (ICR) may be obtained 
from Susan Auby, Collection Strategies Division; U.S. Environmental 
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 
20460 or by calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
    We have established a public docket for this action, which includes 
the ICR, under Docket ID number EPA-HQ-OAR-2004-0019, which can be 
found in http://www.regulations.gov. Today's final decision will not 

change the burden estimates from those developed and approved in 1994 
for the national emission standards.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) a small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final decision on 
small entities, we have concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
We are taking no further action at this time to revise the national 
emission standards. Thus, the final decision will not impose any 
requirements on small entities. Today's final decision on the residual 
risk assessment and technology review for the national emission 
standards imposes no additional burden on facilities impacted by the 
national emission standards.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may

[[Page 17357]]

result in expenditures to State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any 1 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows us to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    We have determined that today's final decision does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
to State, local, and tribal governments in the aggregate, or to the 
private sector in any 1 year. Thus, today's final decision is not 
subject to the requirements of sections 202 and 205 of the UMRA. In 
addition, today's final decision does not significantly or uniquely 
affect small governments because it contains no requirements that apply 
to such governments or impose obligations upon them. Therefore, today's 
final decision is not subject to section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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.''
    Today's final decision does not have federalism implications. It 
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 Executive Order 13132. Thus, the 
requirements of the Executive Order do not apply to today's final 
decision.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal Government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes.''
    Today's final decision does not have tribal implications. It will 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to today's final decision.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 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, we 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.
    Today's final decision is not subject to the Executive Order 
because it is not economically significant as defined in Executive 
Order 12866, and because, as explained earlier, the Agency does not 
have reason to believe the environmental health or safety risk 
addressed by this action present a disproportionate risk to children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    Today's final decision is not an economically significant energy 
action as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) 
because it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy. Further, we have concluded that 
today's final decision is not likely to have any adverse energy 
impacts.

I. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113, all Federal 
agencies are required to use voluntary consensus standards (VCS) in 
their regulatory and procurement activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. VCS are 
technical standards (e.g., materials specifications, test methods, 
sampling procedures, business practices) developed or adopted by one or 
more voluntary consensus bodies. The NTTAA requires Federal agencies to 
provide Congress, through annual reports to OMB, with explanations when 
the agency does not use available and applicable VCS.
    Today's final decision does not involve technical standards. 
Therefore, the requirements of the NTTAA are not applicable.

J. Congressional Review Act

    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. We will submit a report containing this 
final decision and other required information to the United States 
Senate, the United States House of Representatives, and the Comptroller 
General of the United States prior to publication of the final decision 
in the Federal Register. A major rule cannot take effect until 60 days 
after it is published in the Federal Register. This

[[Page 17358]]

action is not a ``major rule'' as defined by 5 U.S.C. 804(2). The final 
decision becomes effective on April 6, 2006.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: March 31, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, part 63 
of the Code of Federal Regulations is amended as follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart R--[Amended]

0
2. Section 63.428 is amended by revising paragraph (b)(1) to read as 
follows:


Sec.  63.428  Reporting and recordkeeping.

* * * * *
    (b) * * *
    (1) Annual certification testing performed under Sec.  63.425(e) 
and railcar bubble leak testing performed under Sec.  63.425(i); and
* * * * *
[FR Doc. 06-3315 Filed 4-5-06; 8:45 am]

BILLING CODE 6560-50-P
