[Federal Register Volume 69, Number 21 (Monday, February 2, 2004)]
[Proposed Rules]
[Pages 4903-4908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2067]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ R01-OAR-2004-NH-0001; A-1-FRL-7616-9]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Control of Gasoline Fuel Parameters; Removal of the 
Reformulated Gasoline Program From Four Counties in New Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of New Hampshire on October 31, 2002 
and October 3, 2003, establishing fuel emissions performance 
requirements for gasoline distributed in southern New Hampshire which 
includes Hillsborough, Merrimack, Rockingham, and Strafford Counties. 
New Hampshire has developed these fuel requirements to reduce emissions 
of nitrogen oxides (NOX) and volatile organic compounds 
(VOC) in accordance with the requirements of the Clean Air Act (CAA). 
EPA is proposing to approve New Hampshire's fuel requirements into the 
New Hampshire SIP because EPA has found that the requirements are 
necessary for southern New Hampshire to achieve the national ambient 
air quality standard (NAAQS) for ozone. The intended effect of this 
action is to propose approval of New Hampshire's request to control 
fuel emissions performance requirements in these four southern 
counties. In addition, should EPA approve this action, reformulated 
gasoline (RFG) will no longer be required in this area 90 days after 
final approval in accordance with the procedures set forth in 40 CFR 
Section 80.72. This action is being taken under section 110 of the 
Clean Air Act.

DATES: Written comments must be received on or before March 3, 2004.

ADDRESSES: Comments may be mailed to David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, EPA-New England, One Congress Street, 
Suite 1100, Boston, MA 02114-2023. Comments may also be submitted 
electronically, or through hand delivery/courier, please follow the 
detailed instructions described in Part (I)(B)(1)(i) through (iv) of 
the Supplementary Information section.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, Air Quality Unit, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, (617) 
918-1045, [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under Regional Material EDocket Number R01-OAR-2004-NH-0001. The 
official public file consists of the documents specifically referenced 
in this action, any public comments received, and other information 
related to this action. Although a part of the official docket, the 
public rulemaking file does not include Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. The official public rulemaking file is the collection of 
materials that is available for public viewing at the Office of 
Ecosystem Protection, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, Suite 1100, Boston, MA. 
EPA requests that if at all possible, you contact the contact 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.
    2. Electronic Access. An electronic version of the public docket is 
available through EPA's Regional Material EDocket (RME) system, a part 
of EPA's electronic docket and comment system. You may access RME at 
http://docket.epa.gov/rmepub/index.jsp to review associated documents 
and submit comments. Once in the system, select ``quick search,'' then 
key in the appropriate RME Docket identification number.
    You may also access this Federal Register document electronically 
through the Regulations.gov web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

[[Page 4904]]

    3. Copies of the State submittal and EPA's technical support 
document are also available for public inspection during normal 
business hours, by appointment at the State Air Agency. Air Resources 
Division, Department of Environmental Services, 6 Hazen Drive, P.O. Box 
95, Concord, NH 03302-0095.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking R01-OAR-2004-NH-0001'' in the 
subject line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in Regional Material EDocket. 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.
    i. Regional Material EDocket (RME). Your use of EPA's Regional 
Material EDocket to submit comments to EPA electronically is EPA's 
preferred method for receiving comments. Go directly to RME at http://docket.epa.gov/rmepub/index.jsp, and follow the online instructions for 
submitting comments. Once in the RME system, select ``quick search,'' 
and then key in RME Docket ID Number R01-OAR-2004-NH-0001. The system 
is an ``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], please include the text ``Public comment on 
proposed rulemaking R01-OAR-2004-NH-0001'' in the subject line. EPA's 
e-mail system is not an ``anonymous access'' system. If you send an e-
mail comment directly without going through Regulations.gov, EPA's e-
mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket.
    iii. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then click on the button 
``TO SEARCH FOR REGULATIONS CLICK HERE'', and select Environmental 
Protection Agency as Agency name to search on. The list of current EPA 
actions available for comment will be listed. Please follow the online 
instructions for submitting comments. The system is an ``anonymous 
access'' system, which means EPA will not know your identity, e-mail 
address, or other contact information unless you provide it in the body 
of your comment.
    iv. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, EPA New England Regional Office, One 
Congress Street, Suite 1100, Boston, MA 02114-2023. Please include the 
text ``Public comment on proposed rulemaking R01-OAR-2004-NH-0001'' in 
the subject line on the first page of your comment
    3. By Hand Delivery or Courier. Deliver your comments to: David 
Conroy, Unit Manager, Air Quality Planning, Office of 
EcosystemProtection, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, 11th floor, (CAQ), 
Boston, MA 02114-2023. 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..

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

[[Page 4905]]

II. Rulemaking Information

    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.
    The information in this section is organized as follows:

Description of the SIP Revision and EPA's Action

A. What Is the Background for This Action?
B. What Fuel Control Requirements Are Being Established?
C. What Are the Relevant EPA Requirements?
D. How Has the State Met the Test Under Section 211(c)(4)(C)?
E. What About Federal Reformulated Gasoline?
F. Why Is EPA Taking This Action?

Description of the SIP Revision and EPA's Action

A. What Is the Background for This Action?

    Under the Clean Air Act Amendments of 1990, southern New Hampshire 
was divided into three separate ozone nonattainment areas: the New 
Hampshire portion of the Boston area which is comprised of portions of 
Hillsborough and Rockingham counties; the Portsmouth-Dover-Rochester 
area which includes portions of Rockingham and all of Strafford county; 
and the Manchester area, which includes all of Merrimack and the 
remaining portions of Hillsborough and Rockingham counties. Each of 
these areas was designated nonattainment for ozone.
    To bring these areas into attainment, the State adopted and 
implemented a broad range of ozone control measures including stage II 
vapor recovery on gasoline retail facilities, numerous stationary and 
area source VOC controls, NOX controls on stationary 
sources, and a vehicle inspection and maintenance (I/M) program. In 
addition, the State participated in the federal RFG program in the four 
southern counties in New Hampshire since January 1, 1995. This strategy 
and other measures resulted in significant air quality improvements in 
southern New Hampshire. Nevertheless, in light of ongoing concerns 
regarding the oxygenate requirement in RFG, specifically the use of 
methyl tertiary butyl ether (MTBE), the Governor instructed the 
Department of Environmental Services (DES) to opt-out of the federal 
RFG program.
    New Hampshire had voluntarily chosen to participate in the 
reformulated gasoline program. Ultimately, EPA approved RFG as one of 
the control strategies that New Hampshire needs to attain the national 
ambient air quality standard (NAAQS) for ozone. As such, RFG is now 
approved as part of the State Implementation Plan (SIP). New Hampshire 
is now seeking to amend the SIP to replace RFG with oxygen flexible 
reformulated gasoline (OFRFG).
    By this rule, the OFRFG rule, New Hampshire is ensuring that it 
replaces the VOC and NOX benefits that RFG is required to 
achieve. These emission reductions are critical to New Hampshire's 
attainment of the 1-hour ozone standard, and are critical strategies 
that are part of the State's approved rate of progress plans.

B. What Fuel Control Requirements Are Being Established?

    New Hampshire has adopted a rule PART Env-A 1611 entitled ``Oxygen 
Flexible Reformulated Gasoline'' effective May 2, 2002. That rule was 
established to mimic the requirements of the federal RFG. It sets forth 
performance standards for NOX (3.0% reduction) and VOC 
(23.4% reduction) that each gallon of fuel sold in New Hampshire will 
be required to meet in the summertime. The rule also establishes other 
performance standards for wintertime NOX, air toxics, 
benzene and heavy metals but those portions of the rule were not 
submitted to EPA for approval. Importantly, this rule does not 
establish a minimum oxygen requirement for gasoline to contain in New 
Hampshire. New Hampshire has not set an oxygen minimum in order to 
encourage fuel with less oxygenates, most notably MTBE, to be sold in 
the State. Compliance with the requirements of this rule will be 
determined based on the phase II complex model in 40 CFR 80.45, just as 
is done with federal RFG. Gasoline certified as Phase II federal RFG 
will be considered a compliant fuel. Because NOX and VOC are 
necessary components in the production of ground level ozone in hot 
summer months, reduction of these pollutants will help areas achieve 
the NAAQS for ozone and thereby produce benefits for human health and 
the environment.

C. What Are the Relevant Clean Air Act Requirements?

    In determining the approvability of a SIP revision, EPA must 
evaluate the proposed revision for consistency with the requirements of 
the CAA and EPA regulations, as found in section 110 and part D of the 
CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and 
Submittal of Implementation Plans).
    For SIP revisions approving certain state fuel measures, an 
additional statutory requirement applies. CAA section 211(c)(4)(A) 
prohibits state regulations respecting a fuel characteristic or 
component for which EPA has adopted a control or prohibition under 
section 211(c)(1), unless the state control is identical to the federal 
control. Section 211(c)(4)(C) provides an exception to this preemption 
if EPA approves the state requirements in a SIP. Section 211(c)(4)(C) 
states that the Administrator may approve an otherwise preempted state 
fuel standards in a SIP:

    Only if [s]he finds that the State control or prohibition is 
necessary to achieve the national primary or secondary ambient air 
quality standard which the plan implements. The Administrator may find 
that a State control or prohibition is necessary to achieve that 
standard if no other measures that would bring about timely attainment 
exist, or if other measures exist and are technically possible to 
implement, but are unreasonable or impracticable.

    EPA interprets the reference to ``other measures'' that must be 
evaluated as generally not encompassing other state fuel measures. The 
Agency believes that the Act does not call for a comparison between 
state fuels measures to determine which measures are unreasonable or 
impracticable, but rather section 211(c)(4) is intended to ensure that 
a state resorts to a fuel measure only if there are no available 
practicable and reasonable nonfuels measures. Thus, in demonstrating 
that other measures are unreasonable or impracticable, a state need not 
address the reasonableness or practicability of other state fuel 
measures.
    EPA's August, 1997 ``Guidance on Use of Opt-in to RFG and Low RVP 
Requirements in Ozone SIPS'' gives further guidance on what EPA is 
likely to consider in making a finding of necessity. Specifically, the 
guidance recommends breaking down the necessity demonstration into four 
steps: identify the quantity of reductions needed to reach attainment; 
identify other possible control measures and the quantity of reductions 
each measure would achieve; explain in detail which of those identified 
control measures are considered unreasonable or impracticable; and show 
that even with the implementation of all reasonable and practicable 
measures, that the state would need additional emission reductions for 
timely attainment, and that the state fuel measure would supply some or 
all of such additional reductions.
    EPA has evaluated the submitted SIP revision and has determined 
that it is

[[Page 4906]]

consistent with the requirements of the CAA, EPA regulations, and 
conforms to EPA's completeness criteria in 40 CFR part 51, Appendix V. 
Further, EPA has looked at New Hampshire's demonstration that this fuel 
control program is necessary in accordance with 211(c)(4)(C) and agrees 
with the State's conclusion that a fuel measure is needed to achieve 
the ozone NAAQS.
    The SIP submittal contains: (1) New Hampshire rule, PART Env-A 1611 
entitled ``Oxygen Flexible Reformulated Gasoline'' effective May 2, 
2002; (2) documentation of the public notice dated January 14, 2002, 
and evidence of the public hearing regarding the OFRFG which occurred 
on February 20, 2002; (3) evidence of State legal authority; and (4) an 
application for waiver of federal preemption initially dated December 
7, 2001 and updated October 3, 2003. Information regarding prohibitions 
on the sale of non-conforming gasoline, test procedures and sampling 
for the SIP revision can be found in PART Env-A 1611 of the New 
Hampshire Department of Environmental Services regulations, and New 
Hampshire statutes on enforcement and penalties can be found at New 
Hampshire Revised Statutes Annotated (R.S.A.) Chapter 125-C:6 and 
Chapter 125-C:15. Based on this and a detailed enforcement strategy in 
the October 31, 2002 submittal, EPA has concluded that these provisions 
confer on the State the requisite authority to enforce compliance with 
the NOX and VOC control requirements in their OFRFG rule.

D. How Has the State Met the Test Under Section 211(c)(4)(C)?

    CAA section 211(c)(4)(A) preempts certain state fuel regulations by 
prohibiting a state from prescribing or attempting to enforce any 
control or prohibition respecting any characteristic or component of a 
fuel or fuel additive for the purposes of motor vehicle emission 
control if the Administrator has prescribed under section 211(c)(1) a 
control or prohibition applicable to such characteristic or component 
of the fuel or fuel additive, unless the state prohibition is identical 
to the prohibition or control prescribed by the Administrator.
    EPA has adopted federal controls for RFG under section 211(k). 
These regulations are found in 40 CFR 80.40-80.130. The specific 
standards being approved here, summertime VOC and NOX 
controls, are identified in 40 CFR 80.41. Four counties in New 
Hampshire are presently required under the federal rule to use federal 
RFG. See 40 CFR 80.70(j)(8).
    A state may prescribe and enforce an otherwise preempted fuel 
control requirement only if the EPA approves the control into the 
state's SIP. In order to approve a preempted state fuel control into a 
SIP, EPA must find that the state control is necessary to achieve a 
NAAQS because no other reasonable or practicable measures exist to 
bring about timely attainment. Thus, to determine whether New 
Hampshire's OFRFG rule is necessary to meet the ozone NAAQS, EPA must 
consider whether there are other reasonable and practicable measures 
available to produce the emission reductions needed to achieve the 1-
hour ozone NAAQS. In addition, while EPA has not yet acted on the 
recommendation, in July 2003, the Governor of New Hampshire did make a 
recommendation that much of this area should be designated 
nonattainment of EPA's 8-hour ozone standard.
    With the State's decision to opt-out of the federal RFG program, 
the VOC and NOX reductions achieved by this program need to 
be replaced to ensure that the southern New Hampshire areas meet the 1-
hour ozone standard. New Hampshire nonattainment areas have measured 
air quality in recent years exceeding the 1-hour and 8-hour ozone 
standard. Given this situation, it is clear that the reductions 
provided by participation of the four counties of southern New 
Hampshire in the federal RFG program are critical to achievement of the 
ozone NAAQS.
    For purposes of demonstrating necessity, New Hampshire has 
determined the level of reductions achieved from the phase 2 RFG VOC 
and NOX reductions required in the various SIP submittals 
made by New Hampshire for its 15 percent rate of progress plan, its 
subsequent 9 percent rate of progress plan and its attainment 
demonstration as estimates of the emission reductions that are 
necessary for southern New Hampshire to achieve the ozone NAAQS. Based 
on MOBILE6, EPA's mobile sources emission estimation tool, New 
Hampshire believes that RFG is responsible for 5.5 tons per summer day 
of VOC reductions for the summer of 2004. New Hampshire's OFRFG rule, 
because it requires the same ``performance standards'' to be met, will 
achieve the same level of emission reductions of both VOC and 
NOX.
    With this estimate of the reductions necessary to achieve the ozone 
NAAQS, the State evaluated an extensive list of non-fuel alternative 
controls to determine if reasonable and practicable controls could be 
implemented to provide sufficient reductions in a timely manner. The 
State analyzed potential control measures by reviewing previously 
prepared emission inventories to determine if other non-fuel control 
measures could be adopted and used to replace the VOC reductions that 
RFG had achieved. The State reviewed all the source categories that 
comprised the emission inventory, and evaluated control measures on 
each source category. For a variety of reasons, most control measures 
were either already implemented, or were found to be unreasonable or 
impracticable for achieving reductions in a timely manner. (See October 
3, 2003 submittal from the State of New Hampshire.) In addition, New 
Hampshire recognized that OFRFG would yield some additional 
NOX emission reductions which would replace the emission 
reductions that federal RFG was required to achieve.
    As one example, the State evaluated the possibility of further 
controlling gasoline refueling, or stage II, emissions. The State does 
have a stage II vapor recovery program for facilities with an annual 
throughput greater than 420,000 gallons per year, but requiring even 
smaller facilities (i.e., gas stations) to comply would yield 0.038 
tons per summer weekday (tpswd). The State concluded that a regulatory 
change would be necessary to further control emissions from this source 
category. In addition, such controls could not be adopted and 
implemented as quickly as the fuel control. Further, the actual 
installation of these controls would take additional time, which would 
not be reasonable or practicable because the State needed to replace 
the reductions as soon as possible. For these reasons and the small 
amount of available reductions, the State concluded that further stage 
II controls were not a practical measure for achieving VOC emission 
reductions. The State also considered the effect of further improving 
its vehicle inspection and maintenance program through the 
implementation of OBD2. This would yield an additional 0.64 tpswd. 
While this program may indeed be implemented by the summer of 2004, it 
will not replace the need for further controls. Other control measures 
were similarly evaluated, and determined to be either technically 
impossible or unreasonable and impracticable, or in a longer time frame 
from when the State needed to secure the replacement emission 
reductions. The State's analysis did not identify any non-fuel 
alternative controls that could conceivably be implemented by the 
summer of 2004--the earliest time frame

[[Page 4907]]

for EPA approval of OFRFG. (See October 3, 2003 State submittal.) 
Because they found no reasonable or practicable non-fuel control 
measures, additional reductions are necessary.
    New Hampshire's OFRFG rule will achieve approximately 5.5 tpd of 
VOC reductions and some NOX reductions beginning the first 
summer it is implemented, and is designed to replace the emission 
reductions required to be achieved by federal RFG. EPA believes these 
emission reductions are necessary to achieve the applicable ozone NAAQS 
in southern New Hampshire. EPA is basing today's action on the 
information available to the Agency at this time, which indicates that 
adequate reasonable and practicable non-fuel measures are not available 
to the State that would achieve these needed emission reductions, and 
protect New Hampshire's air quality in a timely manner. Hence, EPA is 
finding that these fuel standards are necessary for attainment of the 
applicable ozone NAAQS, and EPA is proposing to approve them as a 
revision to the New Hampshire SIP.

E. What About Federal Reformulated Gasoline?

    As discussed earlier, New Hampshire has adopted OFRFG to replace 
the emission reductions from federal RFG-from which the State has 
petitioned to withdraw. EPA's decision to grant or deny an opt-out 
request, based on whether or not a state has satisfied the substantive 
opt-out requirements under 40 CFR 80.72, need not be made through 
notice and comment rulemaking. See 61 FR 35673 at 35675 (July 8, 1996). 
EPA established a petition process to allow case-by-case consideration 
of individual state requests to opt-out of the federal RFG program.\1\ 
The Opt-out Rule establishes specific requirements regarding what 
information a State must submit in connection with an opt-out petition. 
These regulatory provisions also address when a state's petition is 
complete and the appropriate transition time for opting out. EPA has 
applied these criteria. If EPA approves this SIP revision as a final 
action, EPA intends to also approve New Hampshire's petition for 
withdrawal from the RFG program. Consistent with EPA's Opt-out Rule 
(see 40 CFR 80.72(c)(5)), the opt-out would become effective 90 days 
from the effective date of the final rulemaking for this SIP revision. 
The Opt-out Rule also directs EPA to publish a notice in the Federal 
Register announcing the approval of any opt-out petition and the 
effective date for removal of the state from the RFG program.
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    \1\ Pursuant to authority under sections 211(c) and (k) and 
301(a) of the Clean Air Act, EPA promulgated regulations to provide 
criteria and general procedures for states to opt-out of the RFG 
program where the state had previously voluntarily opted into the 
program. The regulations were initially adopted on July 8, 1996 (61 
FR 35673); and were revised on October 20, 1997 (62 FR 54552).
---------------------------------------------------------------------------

    New Hampshire had participated voluntarily in the federal RFG 
program since it began in January 1995. By letter dated April 16, 2001, 
the Governor of New Hampshire announced the state's intent to opt-out, 
and indicated that the addition information and material necessary by 
EPA's rule would be forthcoming in future submittals from the State. 
The final information needed by EPA in order to proceed with this 
rulemaking was submitted by New Hampshire DES on October 3, 2003.

F. Why Is EPA Taking This Action?

    EPA is proposing to approve a SIP revision at the request of the 
New Hampshire DES. This rule was adopted by the State effective May 2, 
2002. To ensure that it secures the needed approval under section 
211(c)(4)(C) of the Clean Air Act, New Hampshire submitted this action 
for EPA approval, to make it part of the SIP, and to complete the 
submission of material needed for opt-out of the RFG program.

III. Proposed Action

    EPA is proposing to approve a SIP revision submitted by the State 
of New Hampshire on October 31, 2002 and October 3, 2003, establishing 
fuel emission control requirements for gasoline distributed in southern 
New Hampshire which includes Hillsborough, Merrimack, Rockingham and 
Strafford Counties. New Hampshire has a adopted a rule PART Env-A 1611 
entitled ``Oxygen Flexible Reformulated Gasoline'' effective May 2, 
2002. That rule was established to mimic the requirements of the 
federal RFG. It sets forth performance standards for NOX 
(3.0% reduction) and VOC (23.4% reduction) that each gallon of fuel 
sold in New Hampshire will be required to meet in the summertime. The 
rule also establishes other performance standards for wintertime 
NOX, air toxics, benzene and heavy metals but those portions 
of the rule were not submitted to EPA for approval. EPA is proposing to 
approve New Hampshire's fuel requirements into the SIP because EPA has 
found that the requirements are necessary for southern New Hampshire to 
achieve the national ambient air quality standard for ozone.

IV. What Are the Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus

[[Page 4908]]

standards (VCS), EPA has no authority to disapprove a SIP submission 
for failure to use VCS. It would thus be inconsistent with applicable 
law for EPA, when it reviews a SIP submission, to use VCS in place of a 
SIP submission that otherwise satisfies the provisions of the Clean Air 
Act. Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, and Reporting and 
recordkeeping requirements.

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

    Dated: January 22, 2004.
Robert W. Varney,
Regional Administrator, EPA-New England.
[FR Doc. 04-2067 Filed 1-30-04; 8:45 am]
BILLING CODE 6560-50-P