[Federal Register Volume 65, Number 172 (Tuesday, September 5, 2000)]
[Rules and Regulations]
[Pages 53595-53599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22514]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-116-1-7437a; FRL-6862-5]


Approval and Promulgation of Implementation Plans; Texas; Control 
of Air Pollution From Volatile Organic Compounds, Transfer Operations, 
Loading and Unloading of Volatile Organic Compounds

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action on revisions to the 
Texas State Implementation Plan (SIP). These revisions concern Control 
of Air Pollution from Volatile Organic Compounds (VOC) Transfer 
Operations, specifically, the loading and unloading of VOCs from 
gasoline terminals and bulk plants in the ozone nonattainment areas and 
in the eastern half of Texas. The EPA is approving these revisions to 
regulate emissions of VOCs in accordance with the requirements of the 
Federal Clean Air Act (the Act).

DATES: This rule is effective on November 6, 2000 without further 
notice, unless EPA receives adverse comment by October 5, 2000. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 
6 Office listed below. Copies of documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations. Anyone wanting to examine these documents should 
make an appointment with the appropriate office at least two working 
days in advance.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
    Texas Natural Resource Conservation Commission, Office of Air 
Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, P.E., Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-6691.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What action is EPA taking?
2. What action are we not taking in this document?
3. Why do we regulate VOCs?
4. Where can I find EPA guidelines on gasoline transfer operations?
5. Where else can I find EPA guidelines on gasoline related 
operations?
6. What are the gasoline bulk transfer rule changes?
7. Will these changes relax the SIP?
8. Why do these changes not relax the SIP?
9. What is a nonattainment area?
10. What is a Reasonably Available Control Technology (RACT)?
11. What is a State Implementation Plan?
12. What is the Federal approval process for a SIP?
13. What does Federal approval of a SIP mean to me?
14. What areas in Texas will these rules affect?

    Throughout this document ``we,'' ``us,'' and ``our'' means EPA.

1. What Action Is EPA Taking?

    On August 9, 1999, the Governor of Texas submitted the Chapter 115, 
``Control of Air Pollution From Volatile Organic Compounds,'' as a 
revision to the SIP. The August 9, 1999, SIP submittal concerned 
loading and unloading of VOCs.
    On November 29, 1999, the Governor of Texas submitted the Chapter 
115, ``Control of Air Pollution From Volatile Organic Compounds,'' as a 
revision to the SIP. The November 29, 1999, SIP submittal concerned 
loading and unloading of gasoline at gasoline terminals and gasoline 
bulk plants.
    In this rule making we are taking two separate actions: (1) We are 
specifically approving revisions to sections 115.211 -115.217 and 
section 115.219; and (2) We are specifically approving revisions to 
section 115.211 concerning emission specifications, section 115.212 
concerning control requirements, and section 115.219 concerning 
counties and compliance schedules. We are approving revisions to the 
Texas SIP concerning control of VOC emissions from loading and 
unloading of gasoline at gasoline terminals and gasoline bulk plants in 
the Houston/Galveston (H/G), Beaumont/Port Arthur (B/PA), Dallas/Fort 
Worth (D/FW), and El Paso (EP) ozone nonattainment areas, and in 95 
counties in the eastern half of Texas. The approval of these rules 
means that we agree Texas is implementing RACT on these source 
categories as required by section 182(b)(2)(A) and (C), and section 183 
of the Act. For more information on the SIP revision and EPA's 
evaluation, please refer to our Technical Support Document (TSD) dated 
May 2000.

2. What Action Are We Not Taking in This Document?

    In this document we are not acting on revisions to sections 
115.221-115.227 and section 115.229 concerning filling of gasoline 
storage vessels (Stage I) for motor vehicle fuel dispensing facilities.
    In this document we are not acting on revisions to sections 
115.234-115.237 and section 115.239 concerning control of VOC leaks 
from transport vessels.

3. Why Do We Regulate VOCs?

    Oxygen in the atmosphere reacts with VOCs and Oxides of Nitrogen to 
form ozone, a key component of urban smog. Inhaling even low levels of 
ozone can trigger a variety of health problems including chest pains, 
coughing, nausea, throat irritation, and congestion. It also can worsen 
bronchitis and asthma. Exposure to ozone can also reduce lung capacity 
in healthy adults.

4. Where Can I Find EPA Guidelines on Gasoline Transfer Operations?

    You can find our guidelines on gasoline bulk plants in the document 
number EPA-450/2-77-035, ``Control of Volatile Organic Emissions from 
Bulk Gasoline Plants,'' December 1977.

5. Where Else Can I Find EPA Guidelines on Gasoline Related 
Operations?

    You can also find additional guidelines on gasoline related

[[Page 53596]]

operations in the following EPA documents:
    (1) ``Control of Hydrocarbons from Tank Truck Gasoline Loading 
Terminals,'' EPA-450/2-77-026,
    (2) ``Hydrocarbon Control Strategies for Gasoline Marketing 
Operations,'' EPA-450/3-78-017, and
    (3) ``Control of Volatile Organic Compounds from Storage of 
Petroleum Liquids in Fixed Roof Tanks,'' EPA-450/2-77-036.

6. What Are the Gasoline Bulk Transfer Rule Changes?

    The revisions to Chapter 115 will modify the gasoline loading and 
unloading rule by: (1) adding the requirements in the urban ozone 
nonattainment areas to 95 counties in the eastern half of Texas; (2) 
deleting the concentration based emission specification (milligram per 
liter) for gasoline bulk plants in the H/G, D/FW, and EP ozone 
nonattainment areas, and in 95 counties in the eastern half of Texas; 
and (3) revising the ``loading lockout'' requirements for gasoline 
terminals in the H/G, D/FW, and EP ozone nonattainment areas.
    For detailed evaluation of the specific provisions of the gasoline 
bulk transfer rule changes, please see page 2 of our TSD dated May 
2000.

7. Will These Changes Relax the SIP?

    No, these changes will not relax the SIP. These rule changes will 
make it: (1) easier to quantify emissions, (2) enforce a limitation 
that is more practical, and (3) simpler for the operator to relate to. 
We prefer having a regulation that incorporates operating parameters 
instead of a regulation that uses a concentration based emission limit.
    Our Regional office developed a Federal Implementation Plan (FIP) 
(40 CFR 52.2285 and 52.2286) for Bexar County, and certain counties in 
east Texas, in the mid 1970s. The FIP applied to sources with storage 
capacities greater than 1000 gallons. These Texas state rules that we 
are approving as a revision to the Texas SIP set exemption levels based 
on throughput. We are of the opinion that the emission reductions 
resulting from implementation of these rules are at least equivalent to 
the current FIP requirements. Upon the effective date of our approval 
of section 115.219, as a part of the Texas SIP, affected sources will 
only need to comply with the state's SIP-approved VOC rules and not our 
FIP VOC rule. The affected sources are large stationary vessels and 
transfer facilities (Gasoline Bulk Plants with a throughput greater 
than or equal to 4000 gallons per day, or Land based loading/unloading 
operations with a throughput greater than or equal to 20,000 gallons 
per day).
    The FIP requirements will remain in place for gasoline transfer 
facilities, bulk plants and smaller sources (storage capacity greater 
than or equal to 1000 gallons and: (a) Gasoline Bulk Plants with a 
throughput less than 4000 gallons per day, or (b) Land based loading/
unloading operations with a throughput less than 20,000 gallons per 
day).

8. Why Do These Changes Not Relax the SIP?

    These changes will not relax the SIP for the following reasons: (1) 
section 115.212(a)(5)(A) will still require using a vapor balance 
system to recycle gasoline vapors back to the storage tank or using a 
90 percent efficient add-on control device for such facilities, (2) 
section 115.212(a)(5)(A) will continue to satisfy our RACT requirement, 
(3) we do not consider the ``loading lockout'' as RACT, and (4) Texas 
had not taken any emission reduction credits for adoption of the 
``loading lockout'' requirements in its 15% Rate-of-Progress (ROP) 
SIPs, post 1996-ROP SIPs, and attainment demonstration SIPs for the 
four ozone nonattainment areas.
    Texas' experience shows that the ``loading lockout'' 
instrumentation does not work well in practice. For example, they found 
out that the ``loading lockout'' instrumentation could allow loading of 
gasoline to continue even if the hose is damaged or improperly 
connected. A damaged hose or improper connections can cause more VOC 
emissions into the air. Therefore, this instrumentation is not worth 
the expense.
    For reasons stated above, these changes do not relax the SIP. We 
are agreeing with Texas on these rule changes, and are approving the 
rule changes.

9. What Is a Nonattainment Area?

    A nonattainment area is a geographic area in which the level of a 
criteria air pollutant is higher than the level allowed by Federal 
standards. A single geographic area may have acceptable levels of one 
criteria air pollutant but unacceptable levels of one or more other 
criteria air pollutants. Thus, a geographic area can be attainment for 
one criteria pollutant and nonattainment for another criteria pollutant 
at the same time. It has been estimated that 60 percent of Americans 
live in nonattainment areas.

10. What Is a Reasonably Available Control Technology (RACT)?

    Section 172(c)(1) of the Act contains general requirements for 
States to implement RACT in areas that do not meet the NAAQS. Section 
182(b)(2) of the Act contains more specific requirements for moderate 
and above ozone nonattainment areas. A related requirement of the Act 
in 182(b)(2)(C)(3) calls for States to implement RACT on all gasoline 
dispensing facilities. Texas submitted its rules for control of VOCs 
from loading and unloading of gasoline at the gasoline bulk plants and 
terminals to us on June 8, 1992, and we approved them as RACT on March 
7, 1995 (60 FR 12438). We approved the July 12, 1995 revisions, the 
March 13, 1996 revisions, and the August 9, 1996 revisions to these 
rules on January 26, 1999 (64 FR 3841).
    Sections 3 and 4 of this action name the titles of EPA's documents 
for control of emissions from gasoline related operations.

11. What Is a State Implementation Plan?

    Section 110 of the Act requires States to develop air pollution 
regulations and control strategies to ensure that State air quality 
meets the NAAQS that EPA has established. Under section 109 of the Act, 
EPA established the NAAQS to protect public health. The NAAQS address 
six criteria pollutants. These criteria pollutants are: carbon 
monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur 
dioxide.
    Each State must submit these regulations and control strategies to 
us for approval and incorporation into the federally enforceable SIP. 
Each State has a SIP designed to protect air quality. These SIPs can be 
extensive, containing State regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

12. What Is the Federal Approval Process for a SIP?

    When a State wants to incorporate its regulations into the 
federally enforceable SIP, the State must formally adopt the 
regulations and control strategies consistent with State and Federal 
requirements. This process includes a public notice, a public hearing, 
a public comment period, and a formal adoption by a state-authorized 
rulemaking body.
    Once a State adopts a rule, regulation, or control strategy, the 
State may submit the adopted provisions to us and request

[[Page 53597]]

that we include these provisions in the federally enforceable SIP. We 
must then decide on an appropriate Federal action, provide public 
notice on this action, and seek additional public comment regarding 
this action. If we receive adverse comments, we must address them prior 
to a final action.
    Under section 110 of the Act, when we approve all State regulations 
and supporting information, those State regulations and supporting 
information become a part of the federally approved SIP. You can find 
records of these SIP actions in the Code of Federal Regulations at 
Title 40, part 52, entitled ``Approval and Promulgation of 
Implementation Plans.'' The actual State regulations that we approved 
are not reproduced in their entirety in the CFR but are ``incorporated 
by reference,'' which means that we have approved a given State 
regulation with a specific effective date.

13. What Does Federal Approval of a SIP Mean to Me?

    A State may enforce State regulations before and after we 
incorporate those regulations into a federally approved SIP. After we 
incorporate those regulations into a federally approved SIP, both EPA 
and the public may also take enforcement action against violators of 
these regulations.

14. What Areas in Texas Will These Rules Affect?

    These rules will affect the H/G, B/PA, D/FW, and EP ozone 
nonattainment areas. The H/G area is classified as severe ozone 
nonattainment and includes the following counties: Brazoria, Chambers, 
Fort Bend, Harris, Galveston, Liberty, Montgomery, and Waller. The B/PA 
is classified as moderate ozone nonattainment area and includes the 
following counties: Hardin, Jefferson, and Orange. The D/FW area is 
classified as serious ozone nonattainment and includes the following 
counties: Collin, Dallas, Denton, and Tarrant. The El Paso is 
classified as serious ozone nonattainment and includes the following 
county: El Paso.
    These rules will also affect the 95 counties in the eastern half of 
Texas. These 95 counties in the eastern half of Texas are: Anderson, 
Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, 
Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, 
Colorado, Comal, Cooke, Coryell, De Witt, Delta, Ellis, Falls, Fannin, 
Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, 
Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, 
Hunt, Jackson, Jasper, Johnson, Karnes, Kaufman, Lamar, Lavaca, Lee, 
Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, 
Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Parker, Polk, 
Rains, Red River, Refugio, Robertson, Rockwall, Rusk, Sabine, San 
Jacinto, San Patricio, San Augustine, Shelby, Smith, Somervell, Titus, 
Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, 
Washington, Wharton, Williamson, Wilson, Wise, and Wood.
    If you are in one of these counties or one of these nonattainment 
areas, you need to refer to these rules to find out if and how these 
rules will affect you.

Final Action

    The EPA is publishing this rule without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the PROPOSED RULES section of today's Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if adverse comments 
are received. This rule will be effective on November 6, 2000 without 
further notice unless we receive adverse comment by October 5, 2000. If 
EPA receives adverse comments, we will publish a timely withdrawal in 
the Federal Register informing the public that the rule will not take 
effect. We will address all public comments in a subsequent final rule 
based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Executive 13132, entitled ``Federalism'' (64 FR 43255, August 10, 
1999) revokes and replaces Executive Order 12612, ``Federalism,'' and 
Executive Order 12875, ``Enhancing the Intergovernmental Partnership.'' 
Executive Order 13132 requires EPA to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. The EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that: (1) is determined to be ``economically 
significant'' as defined under 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, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This final rule is not subject 
to Executive Order 13045 because it approves a State program.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not

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required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the OMB, in a separately identified section 
of the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally 
requires an agency to conduct a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small not-for-profit enterprises, and small 
governmental jurisdictions. This final rule will not have a significant 
impact on a substantial number of small entities because SIP approvals 
under section 110 and subchapter I, part D of the Act do not create any 
new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
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. See 
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
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.
    The 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 preexisting requirements under State or local law, and imposes 
no new requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

G. Submission to Congress and the Comptroller General

    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. The 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. A major rule can 
not 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). This rule will be effective November 6, 2000.

H. 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 November 6, 2000. 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, Gasoline, 
Intergovernmental relations, Nonattainment, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: August 3, 2000.
Lynda F. Carroll,
Acting Regional Administrator, Region 6.

    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 SS--Texas

    2. Section 52.2270 is amended in paragraph (c) under Chapter 115, 
Subchapter C, by removing the entry for section 115.211 to 115.219 and 
adding entries for sections 115.211, 115.212, and 115.219 to read as 
follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *

[[Page 53599]]



                                                        EPA Approved Regulations in the Texas SIP
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        State citation                 Title/Subject                 State adoption date                 EPA approval date               Explanation
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                   *                  *                  *                  *                  *                  *                  *
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                                      Chapter 115 (Reg 5)--Control of Air Pollution from Volatile Organic Compounds
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                   *                  *                  *                  *                  *                  *                  *
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                                              Subchapter C--Volatile Organic Compounds Transfer Operations
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Section 115.211..............  Emission Specifications......  November 10, 1999................  September 5, 2000................  Ref 52.2299(c)(104).
Section 115.212..............  Control Requirements.........  November 10, 1999................  September 5, 2000................  Ref
                                                                                                                                     52.2299(c)(104),52.
                                                                                                                                     2270(105)(i)(K).
Section 115.219..............  Counties and Compliance......  November 10, 1999................  September 5, 2000................  Ref
                                                                                                                                     52.2299(c)(104),52.
                                                                                                                                     2270(105)(i)(K).
 
                   *                  *                  *                  *                  *                  *                  *
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[FR Doc. 00-22514 Filed 9-1-00; 8:45 am]
BILLING CODE 6560-50-P