[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Rules and Regulations]
[Pages 75236-75238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23608]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0479; FRL-11425-02-R9]


Determination To Defer Sanctions; California; California Air 
Resources Board

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: The Environmental Protection Agency (EPA) is making an interim 
final determination that the California Air Resources Board (CARB) has 
submitted a rule and other materials that correct deficiencies in its 
Clean Air Act (CAA or ``Act'') state implementation plan (SIP) 
provisions concerning emissions of volatile organic compounds (VOCs) 
from vapor recovery systems of gasoline cargo tanks. This determination 
is based on a proposed approval, published elsewhere in this Federal 
Register, of CARB's California Code of Regulations, Title 17, Division 
3, Chapter 1, Subchapter 8, Article 1, Section 94014 (``Section 
94014'') which regulates this source category. The effect of this 
interim final determination is that the imposition of sanctions that 
were triggered by a previous limited disapproval by the EPA in 2022 is 
now deferred. If the EPA finalizes its approval of CARB's submission, 
relief from these sanctions will become permanent.

DATES: This interim final determination is effective November 2, 2023. 
However, comments will be accepted on or before December 4, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0479 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI)

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or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a language other than English or if 
you are a person with disabilities who needs a reasonable accommodation 
at no cost to you, please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: La Kenya Evans-Hopper, EPA Region IX, 
75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 942-3245 or 
by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to the EPA.

Table of Contents

I. Background
II. The EPA's Evaluation and Action
III. Statutory and Executive Order Reviews

I. Background

    On April 5, 2022 (87 FR 19631), the EPA issued a final limited 
approval and limited disapproval action for the CARB rule listed in 
Table 1 that was submitted to the EPA for inclusion into the California 
SIP. The action addressed the procedures CARB uses to certify vapor 
recovery systems on cargo tank trucks used to transport gasoline from 
bulk terminals to gasoline dispensing facilities.

                                   Table 1--CARB Rule With Previous EPA Action
----------------------------------------------------------------------------------------------------------------
                                   Regulation title
     Regulation or provision          or subject            Amended            Submitted      EPA action in 2022
----------------------------------------------------------------------------------------------------------------
California Code of Regulations,   Certification of    07/25/2013........  08/22/2018........  Limited Approval
 Title 17, Division 3, Chapter     Vapor Recovery                                              and Limited
 1, Subchapter 8, Article 1,       Systems for Cargo                                           Disapproval.
 Section 94014.                    Tanks.
----------------------------------------------------------------------------------------------------------------

    In the April 5, 2022 final rule, we determined that although the 
CARB regulation strengthened the SIP and was largely consistent with 
the requirements of the CAA, the submitted rule included a deficiency 
that precluded our full approval of the rule into the SIP. CARB's 
previously submitted Section 94014 incorporated by reference 
Certification Procedure CP-204 (``CP-204'') that allowed for CARB's 
Executive Officer to approve alternate test procedures without EPA 
approval. The EPA found that this provision was an instance of 
unbounded director's discretion. Pursuant to section 179 of the CAA and 
our regulations at 40 CFR 52, the disapproval action on CP-204 under 
title I, part D started a sanctions clock for imposition of offset 
sanctions 18 months after the action's effective date of November 5, 
2023, and highway sanctions 6 months later.
    On July 12, 2023, the CARB revised Section 94014 and CP-204, and on 
September 13, 2023, submitted it to the EPA for approval into the 
California SIP as shown in Table 2 below.

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          Regulation or provision             Regulation title or subject        Amended           Submitted
----------------------------------------------------------------------------------------------------------------
California Code of Regulations, Title 17,    Certification of Vapor              \1\ 07/12/23           09/13/23
 Division 3, Chapter 1, Subchapter 8,         Recovery Systems for Cargo
 Article 1, Section 94014, excluding sub-     Tanks.
 sections (a)-(d).
Certification Procedure CP-204.............  Certification Procedure for             07/12/23           09/13/23
                                              Vapor Recovery Systems of
                                              Cargo Tanks.
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\1\ The California Air Resources Board amended the introductory paragraph of 17 California Code of Regulations
  Section 94014 on July 12, 2023, and the changed was filed with Thomson Reuters Westlaw on August 29, 2023.
  Therefore, the amendment for Section 94014 will be recorded as July 12, 2023.

    On September 25, 2023, the Submittal was determined to meet the 
completeness criteria in 40 CFR part 51 Appendix V, which must be met 
before formal EPA review.
    The revised CARB section 94014 and CP-204 in Table 2 is intended to 
address the disapproval issues in our April 5, 2022 final rule. Based 
on this proposed action approving Section 94014 and CP-204 into the 
California SIP, we are also making this interim final determination, 
effective on publication, to defer imposition of the offset sanctions 
and highway sanctions that were triggered by our final action on April 
5, 2022, because we believe that the submittal corrects the 
deficiencies that triggered such sanctions.
    The EPA is providing the public with an opportunity to comment on 
this deferral of sanctions. If comments are submitted that change our 
assessment described in this interim final determination and the 
proposed approval of CARB Section 94014 and CP-204, we would take final 
action to lift this deferral of sanctions under 40 CFR 52.31. If no 
comments are submitted that change our assessment, then all sanctions 
and any sanction clocks triggered by our final action on April 5, 2022, 
would be permanently terminated on the effective date of our final 
approval of Section 94014 and CP-204.

II. The EPA's Evaluation and Action

    We are making an interim final determination to defer CAA section 
179 sanctions associated with our limited disapproval action on April 
5, 2022, of CARB's section 94014 with respect to the requirements of 
part D of title I of the CAA. This determination is based on our 
concurrent proposal to fully approve CARB Section 94014 which resolves 
the deficiencies that triggered sanctions under section 179 of the CAA.
    Because the EPA has preliminarily determined that CARB Section 
94014 and CP-204, amended on July 12, 2023, address the limited 
disapproval issues under part D of title I of the CAA identified in our 
2022 final action and

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the amended rule is now fully approvable, relief from sanctions should 
be provided as quickly as possible. Therefore, the EPA is invoking the 
good cause exception under the Administrative Procedure Act (APA) in 
not providing an opportunity for comment before this action takes 
effect (5 U.S.C. 553(b)(3)). However, by this action, the EPA is 
providing the public with a chance to comment on the EPA's 
determination after the effective date, and the EPA will consider any 
comments received in determining whether to reverse such action.
    The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. The EPA has reviewed the State's submittal and, 
through its proposed action, is indicating that it is more likely than 
not that the State has submitted a revision to the SIP that corrects 
deficiencies under part D of the Act that were the basis for the action 
that started the sanctions clocks. Therefore, it is not in the public 
interest to impose sanctions. The EPA believes that it is necessary to 
use the interim final rulemaking process to defer sanctions while the 
EPA completes its rulemaking process on the approvability of the 
State's submittal. Moreover, with respect to the effective date of this 
action, the EPA is invoking the good cause exception to the 30-day 
notice requirement of the APA because the purpose of this notice is to 
relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on Tribal Governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The State did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. The EPA 
did not perform an EJ analysis and did not consider EJ in this action. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goal of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.
    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 2, 2024. Filing a petition for 
reconsideration by the EPA Administrator of this final rule does not 
affect the finality of this rule for the purpose of judicial review nor 
does it extend the time within which 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 CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: October 19, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-23608 Filed 11-1-23; 8:45 am]
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