[Federal Register Volume 66, Number 72 (Friday, April 13, 2001)]
[Proposed Rules]
[Pages 19312-19322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8928]



  Federal Register / Vol. 66, No. 72 / Friday, April 13, 2001 / 
Proposed Rules  

[[Page 19312]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 80 and 86

[AMS-FRL-6768-4]
RIN 2060-AI69


Control of Air Pollution From New Motor Vehicles; Amendment to 
the Tier 2/Gasoline Sulfur Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would correct, amend, and revise certain 
Tier 2/Gasoline Sulfur regulations to assist regulated entities with 
program implementation and compliance. First, it would make minor 
corrections to clarify the regulations governing compliance with the 
gasoline sulfur standards. Second, with respect to the low sulfur 
gasoline program, it would revise the boundaries of the Geographic 
Phase-in Area (GPA) to include counties and tribal lands in states 
adjacent to the eight original GPA states. The intention of this 
amendment is to ensure a smooth transition to low sulfur gasoline 
nationwide and to mitigate the potential for gasoline supply shortages. 
Third, it would amend certain provisions of the small refiner and 
Averaging, Banking, and Trading (ABT) programs to assist domestic and 
foreign refiners and importers in establishing gasoline sulfur 
baselines for credit and allotment generation purposes. Fourth, it 
would revise certain sampling and testing provisions for low sulfur 
gasoline to enable certain refiners to generate early credits and/or 
allotments under the ABT program. Finally, this proposal would make 
minor revisions to the regulations governing compliance with the 
vehicle standards. We plan to make other necessary corrections, 
amendments, and revisions to the Tier 2/Gasoline Sulfur regulations in 
a future rulemaking.

DATES: Comments or requests for a public hearing must be received by 
June 12, 2001.

ADDRESSES: Comments: All comments and materials relevant to today's 
action should be submitted to Public Docket No. A-97-10 at the 
following address: U.S. Environmental Protection Agency (EPA), Air 
Docket (6102), Room M-1500, 401 M Street, SW., Washington, DC 20460. 
Materials related to this rulemaking are available at EPA's Air Docket 
for review at the above address (on the ground floor in Waterside Mall) 
from 8:00 a.m. to 5:30 p.m., Monday through Friday, except on 
government holidays. You can reach the Air Docket by telephone at (202) 
260-7548 and by facsimile at (202) 260-4400. You may be charged a 
reasonable fee for photocopying docket materials, as provided in 40 CFR 
Part 2.

FOR FURTHER INFORMATION CONTACT: Mary Manners, U.S. EPA, National 
Vehicle and Fuels Emission Laboratory, Assessment and Standards 
Division, 2000 Traverwood, Ann Arbor MI 48105; telephone (734) 214-
4873, fax (734) 214-4051, e-mail [email protected].

SUPPLEMENTARY INFORMATION: EPA is proposing to approve corrections, 
amendments, and revisions to the Tier 2/Gasoline Sulfur regulations (65 
FR 6698, February 10, 2000). However, in the ``Rules and Regulations'' 
section of today's Federal Register publication, we are approving these 
corrections, amendments, and revisions as a direct final rule without 
prior proposal language because we view this as a noncontroversial rule 
and anticipate no adverse comment. For further information, including 
the regulatory text for this proposal, please refer to the direct final 
rule that is located in the ``Rules and Regulations'' section of this 
Federal Register publication. The direct final rule will be effective 
on July 12, 2001 without further notice unless we receive adverse 
comment or a request for a public hearing by June 12, 2001. If EPA 
receives adverse comment on one or more distinct amendments, 
paragraphs, or sections of this rulemaking, we will publish a timely 
withdrawal in the Federal Register indicating which provisions are 
being withdrawn due to adverse comment. We will address all public 
comments in a subsequent final rule based on this proposed rule. We 
will not institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Any distinct 
amendment, paragraph, or section of today's rulemaking for which we do 
not receive adverse comment will become effective on the date set out 
above, notwithstanding any adverse comment on any other distinct 
amendment, paragraph, or section of the direct final rule.

Regulated Entities

    Entities potentially regulated by this proposed action include 
those that manufacture new motor vehicles, alter individual imported 
motor vehicles to address U.S. regulation, or convert motor vehicles to 
use alternative fuels. It would also affect you if you produce, 
distribute, or sell gasoline.
    The table below gives some examples of entities that would have to 
comply with the proposed regulations if they are finalized. However, 
since these are only examples, you should carefully examine these and 
other existing regulations in 40 CFR parts 80 and 86. If you have any 
questions, please call the person listed in the for further information 
contact section above.

----------------------------------------------------------------------------------------------------------------
                                                                                     Examples of potentially
                   Category                      NAICS codes a    SIC codes b          regulated entities
----------------------------------------------------------------------------------------------------------------
Industry......................................          336111            3711  Motor Vehicle Manufacturers.
                                                        336112  ..............
                                                        336120  ..............
Industry......................................          336311            3592  Alternative Fuel Vehicle
                                                                                 Converters.
                                                        336312            3714
                                                        422720            5172
                                                        454312            5984
                                                        811198            7549
                                                        541514            8742
                                                        541690            8931
Industry......................................          811112            7533  Commercial Importers of Vehicles
                                                                                 and Vehicle Components.
                                                        811198            7549
                                                        541514            8742
Industry......................................          324110            2911  Petroleum Refiners.
Industry......................................          422710            5171  Gasoline Marketers and
                                                                                 Distributors.
                                                        422720            5172
Industry......................................          484220            4212  Gasoline Carriers.

[[Page 19313]]

 
                                                        484230           4213
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a North American Industry Classification System (NAICS).
b Standard Industrial Classification (SIC) system code.

Access to Rulemaking Documents Through the Internet

    Today's proposal is available electronically on the day of 
publication from the Office of the Federal Register Internet Web site 
listed below. Electronic copies of this preamble, regulatory language, 
and other documents associated with this proposal are available from 
the EPA Office of Transportation and Air Quality Web site listed below 
shortly after the rule is signed by the Administrator. This service is 
free of charge, except any cost that you already incur for connecting 
to the Internet.
    EPA Federal Register Web Site: 
http://www.epa.gov/docs/fedrgstr/epa-air/(Either select a desired date 
or use the Search feature.)
    Tier 2/Gasoline Sulfur home page: http://www.epa.gov/otaq/tr2home.htm.
    Please note that due to differences between the software used to 
develop the document and the software into which the document may be 
downloaded, changes in format, page length, etc., may occur.

Outline of This Preamble

I. Proposed Clarifications and Other Minor Corrections
II. Geographic Phase-in Area
    A. Application Deadline for GPA Standards
    B. How Did We Establish the Geographic Phase-in Area?
    C. How Do We Propose to Establish the GPA in the Adjoining 
States?
    D. What Are the Results of the GPA Counties Process?
III. Small Refiners
    A. Documentation of Crude Oil Capacity by Foreign Refiners
    B. Oxygenates Included in Baseline
IV. Credits and Allotments
    A. Baseline Calculations
    B. Refineries That Were Non-operational in 1997-98
    C. Foreign Refiners With Approved 1990 Baselines Who Did Not 
Submit Anti-dumping Compliance Reports to EPA in 1997-1998
V. Sampling and Testing
    A. Obtaining Test Results Before Gasoline Leaves the Refinery
    1. Before January 1, 2004
    2. January 1, 2004 and Beyond
    B. Sample Retention
    1. Limitation on Length of Time to Retain Samples
    2. Composited Samples
    3. Sample Retention for Reformulated Blendstocks for Oxygenate 
Blending
VI. Changes to Vehicle Compliance Regulations
VII. Administrative Requirements
    A. Administrative Designation and Regulatory Analysis
    B. Regulatory Flexibility
    C. Paperwork Reduction Act
    D. Intergovernmental Relations
    1. Unfunded Mandates Reform Act
    2. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    3. Executive Order 13132 (Federalism)
    E. National Technology Transfer and Advancement Act
    F. Executive Order 13045: Children's Health Protection
VIII. Statutory Provisions and Legal Authority

I. Proposed Clarifications and Other Minor Corrections

------------------------------------------------------------------------
                                                       Description of
                      Section                         clarification or
                                                         correction
------------------------------------------------------------------------
Sec.  80.216(a)(1)(i) and (a)(2)..................  Revise to clarify
                                                     that the refinery
                                                     annual average
                                                     standard for GPA
                                                     gasoline is 150.00
                                                     ppm instead of 150
                                                     ppm, in accordance
                                                     with the annual
                                                     average refinery
                                                     standards under
                                                     Sec.  80.195(a)(1)
                                                     and Sec.  80.240(a)
                                                     which are expressed
                                                     to two decimals.
Sec.  80.230(a)(1)................................  Revise to change
                                                     ``of'' to ``with''
                                                     for clarity.
Sec.  80.225(d)...................................  Revise to clarify
                                                     that the employee/
                                                     crude oil criteria
                                                     applies to parties
                                                     seeking small
                                                     refiner status
                                                     under Sec.
                                                     80.225(d).
Sec.  80.235(g)(1)................................  Revise to change the
                                                     phrase ``baseline
                                                     standard and
                                                     volume, and per-
                                                     gallon cap'' to
                                                     ``annual average
                                                     sulfur standard,
                                                     baseline volume and
                                                     per-gallon cap
                                                     standard,'' and to
                                                     add the words ``for
                                                     the 2004-2007
                                                     averaging periods''
                                                     for clarity.
Sec.  80.245(a)(3)................................  Revise to conform
                                                     language to other
                                                     provisions relating
                                                     to requirements for
                                                     establishing a
                                                     sulfur baseline.
                                                     This revision does
                                                     not change the
                                                     substance of the
                                                     baseline provisions
                                                     under Sec.  80.245.
Sec.  80.250(a)(1) and (a)(2).....................  Revise to clarify
                                                     that foreign
                                                     refiners must
                                                     include only
                                                     gasoline imported
                                                     into the U.S. in
                                                     calculating a small
                                                     refinery's baseline
                                                     and baseline
                                                     volume. Also Revise
                                                     to reference
                                                     requirements under
                                                     Sec.  80.245(a)(3).
Sec.  80.285(a)(1)(i).............................  Revise to add the
                                                     words ``for a
                                                     refinery'' for
                                                     clarity.
Sec.  80.285(a)(1)(ii)............................  Revise to add the
                                                     words ``for
                                                     refineries'' and
                                                     ``refineries'' for
                                                     clarity.
Sec.  80.285(a)(1)(iii)...........................  Revise to add the
                                                     words ``for that
                                                     refinery'' for
                                                     clarity.
Sec.  80.285(b)(1)(i).............................  Revise to add the
                                                     words ``for any
                                                     refinery'' for
                                                     clarity.
Sec.  80.285(b)(1)(ii)............................  Revise to clarify
                                                     that, for refiners
                                                     of GPA gasoline,
                                                     credits generated
                                                     beginning in 2004
                                                     are based on the
                                                     refinery's annual
                                                     average sulfur
                                                     standard for GPA
                                                     gasoline
                                                     established under
                                                     Sec.  80.216(a).
Sec.  80.285(b)(2)................................  Revise to add
                                                     ``under Sec.
                                                     80.310'' for
                                                     clarity.
Sec.  80.295(a)...................................  Revise to clarify
                                                     that foreign
                                                     refiners must
                                                     include only
                                                     gasoline imported
                                                     into the U.S. in
                                                     calculating a
                                                     sulfur baseline
                                                     under Sec.  80.295.
Sec.  80.295(b)...................................  Revise to change an
                                                     incorrect reference
                                                     to Sec.  80.65. The
                                                     correct reference
                                                     is Sec.  80.69.
                                                     Also Revise to add
                                                     the words ``for a
                                                     refinery'' and
                                                     ``for that
                                                     refinery'' for
                                                     clarity.
Sec.  80.305(a)...................................  Revise to clarify in
                                                     the definition of
                                                     the term Va that
                                                     foreign refiners
                                                     must include only
                                                     gasoline imported
                                                     into the U.S. in
                                                     calculating early
                                                     credits under Sec.
                                                     80.305, and to
                                                     clarify in the
                                                     definition of the
                                                     term Sa that the
                                                     annual average
                                                     sulfur level used
                                                     in the equation in
                                                     this section is
                                                     calculated in
                                                     accordance with
                                                     Sec.  80.205.
Sec.  80.305(d)...................................  Revise to add ``for
                                                     a refinery'' and
                                                     ``at that
                                                     refinery'' and to
                                                     change
                                                     ``refiner's'' to
                                                     ``refinery's'' for
                                                     clarity.
Sec.  80.310(b)...................................  Revise to clarify in
                                                     the definition of
                                                     the term Sstd that
                                                     the standard for
                                                     GPA gasoline is the
                                                     standard
                                                     established for GPA
                                                     gasoline for the
                                                     refinery under Sec.
                                                      80.216(a), and to
                                                     clarify in the
                                                     definition of the
                                                     term Sa that the
                                                     annual average
                                                     sulfur level used
                                                     in the equation in
                                                     this section is
                                                     calculated in
                                                     accordance with
                                                     Sec.  80.205.

[[Page 19314]]

 
Sec.  80.410(f)(2)(ii)............................  Revise to change an
                                                     incorrect reference
                                                     to paragraph
                                                     (c)(3)(i). The
                                                     correct reference
                                                     is paragraph
                                                     (c)(3)(ii).
Sec.  80.410(s)...................................  Revise to change an
                                                     incorrect reference
                                                     to paragraph (r).
                                                     The correct
                                                     reference is
                                                     paragraph (p).
Sec.  86.1810-01(l)(1)............................  Correct an
                                                     inadvertent
                                                     limitation of
                                                     applicability by
                                                     removing the model
                                                     year designations
                                                     in the referenced
                                                     section numbers.
Sec.  86.1810-01(m)(1)............................  Correct an
                                                     inadvertent
                                                     limitation of
                                                     applicability by
                                                     removing the model
                                                     year designations
                                                     in the referenced
                                                     section numbers.
Sec.  86.1811-04(c)(3)(i) and (ii)................  Revise to clarify
                                                     the applicability
                                                     of the NMOG -
                                                     standard to flex,
                                                     bi- or dual-fueled
                                                     vehicles on the
                                                     gasoline or diesel
                                                     portion of
                                                     certification only.
Sec.  86.1811-04(e)...............................  Revise to delete an
                                                     erroneous statement
                                                     about the
                                                     applicability of
                                                     the spitback
                                                     standard to newly
                                                     assembled vehicles.
Sec.  86.1811-04(f)(2)(i).........................  Revise to clarify an
                                                     incorrect rounding
                                                     procedure.
Sec.  86.1829-01(2)(i)............................  Revise to add a
                                                     waiver provision
                                                     for evaporative/
                                                     refueling testing
                                                     of CNG or LPG
                                                     vehicles,
                                                     inadvertently
                                                     omitted.
Sec.  86.1835-01(d)...............................  Correct an incorrect
                                                     reference to
                                                     paragraph (b) to
                                                     paragraph (a).
Sec.  86.1841-01(e)...............................  Revise to clarify
                                                     that RAFS may be
                                                     applied only to
                                                     NLEV vehicles.
Sec.  86.1845-04(f)(1)............................  Revise to change an
                                                     incorrect reference
                                                     to NMOG to NMHC.
Sec.  86.1846-01(a)(3)............................  Revise to add the
                                                     word ``passenger''
                                                     to ``medium-duty
                                                     passenger
                                                     vehicles'' for
                                                     clarity.
Sec.  86.1860-04(g)(2)(ii)........................  Revise to correct a
                                                     rounding procedure.
Sec.  86.1860-04(h)...............................  Revise to clarify
                                                     that the
                                                     multipliers for
                                                     fleet average NOX
                                                     specified in (h)(1)
                                                     apply to the
                                                     denominator in the
                                                     equation in
                                                     paragraph (f)(2) of
                                                     that section.
                                                     Provide optional
                                                     formula necessary
                                                     to address
                                                     mathematical
                                                     problems caused by
                                                     the value of zero
                                                     associated with Bin
                                                     1.
Sec.  86.1861-04(a)(5)............................  Revise to correct an
                                                     inconsistency with
                                                     small volume
                                                     hardship provisions
                                                     by changing the
                                                     requirement for
                                                     100% compliance in
                                                     a specific model
                                                     year to one model
                                                     year before a
                                                     deficit can be
                                                     carried forward.
Sec.  86.1861-04(b)(1)............................  Revise formula to
                                                     replace erroneous +
                                                     symbol with  x .
------------------------------------------------------------------------

II. Geographic Phase-in Area

A. Application Deadline for GPA Standards

    Due to the timing of today's action, we are proposing to extend the 
application deadline for GPA standards from December 31, 2000 to May 1, 
2001. To apply for the GPA standards under Sec. 80.216 (What standards 
apply to gasoline produced or imported for use in the GPA?), a refiner 
or importer would have to submit an application in accordance with the 
provisions of Sec. 80.290 (How does a refiner apply for a sulfur 
baseline?).

B. How Did We Establish the Geographic Phase-in Area?

    In the Tier 2/Gasoline Sulfur final rule (65 FR 6698, February 10, 
2000), we established a geographic area in which the low sulfur 
gasoline program will be phased-in differently than the national 
program. This program, referred to as the Geographic Phase-In Area 
(GPA) program, covers seven states in the Rocky Mountains and Upper 
Great Plains, as well as Alaska. The gasoline sulfur standards and 
phase-in schedule for the GPA program can be found at Secs. 80.216, 
80.219, and 80.220. Gasoline produced by any refiner and/or importer 
can be sold in the GPA provided that the refiner and/or importer 
registers with us (see Sec. 80.217) and sells gasoline within the GPA 
consistent with the requirements summarized in the regulations.
    As discussed in the Tier 2 final rulemaking (FRM), the GPA program 
was established to help enable a smooth transition to low sulfur 
gasoline nationwide. The need for such a program was based on the 
competition for engineering and construction resources and the time 
needed for installation of desulfurization equipment. (See 65 FR 6755-
6756)
    As described in the preamble to the Tier 2 FRM, states in the GPA 
were determined based on two criteria: environmental need and gasoline 
supply. First, we evaluated states based on the environmental need 
criterion. In defining the GPA, we identified those states that have a 
somewhat less urgent environmental need in the near term (relative to 
the 1-hour ozone standard) for ozone precursor reductions \1\ and whose 
emissions are less important with respect to ozone transport. (Tier 2 
vehicles operating on higher sulfur gasoline have increased emission 
rates compared with those operated on 30 ppm, but this effect is 
partially reversible.) Second, we considered the issue of sufficient 
gasoline supply, specifically, the relative difficulty of producing or 
obtaining through product transport (via pipeline, truck, rail or 
barge) adequate supplies of gasoline which would meet the requirements 
of the national low sulfur gasoline program. Upon evaluation of these 
criteria, we identified eight states for the GPA program: Alaska, 
Colorado, Idaho, Montana, New Mexico, North Dakota, Utah, and Wyoming.
---------------------------------------------------------------------------

    \1\ Primarily oxides of nitrogen ( NOX) and volatile 
organic compounds (VOCs).
---------------------------------------------------------------------------

    In this same assessment we also acknowledged that there may be 
counties in other states adjoining these eight states which are solely 
or predominantly dependent on gasoline produced by the refineries that 
supply these eight states and which meet the same basic environmental 
and gasoline supply criteria. As part of the Tier 2 final rule, we 
committed to conducting additional assessments to identify which 
counties in these adjoining states should be considered for inclusion 
in the GPA program.

C. How Do We Propose to Establish the GPA in the Adjoining States?

    As part of the Tier 2/Gasoline Sulfur final rule, we included 
criteria that should be considered in establishing which counties in 
adjoining states should be included in the GPA program. We designed 
these criteria to include those counties in adjacent states which 
receive a majority of their gasoline from the refineries located in the 
eight states covered by the GPA program. Not including these counties 
within the GPA program could potentially undermine the basic intent of 
the GPA program by pressuring refineries in the eight states to supply 
their markets in the adjoining states with national gasoline, in spite 
of the existence of the GPA program. It could also have the affect of 
creating spot gasoline supply shortages and put upward pressure on 
prices in these counties.

[[Page 19315]]

    EPA's current gasoline sulfur regulations provide that additional 
counties or tribal lands in states adjacent to the eight states listed 
above will be included in the GPA, and gasoline sold there will thus be 
subject to the GPA standards, if one of the following conditions is met 
for the area in 1999: (1) Approximately 50 percent or more of the total 
volume of gasoline, as measured at the terminals and bulk stations, was 
received from refineries located in the eight GPA states, (2) 
approximately 50 percent or more of the total volume of gasoline 
dispensed was received from refineries in the GPA states, or (3) 
approximately 50 percent or more of the total commercial and private 
dispensing outlets were supplied by gasoline produced by refineries 
located in the eight GPA states. See 40 CFR 80.215(a)(2).
    To identify additional areas for inclusion in the GPA under these 
regulations, we worked with interested parties such as petroleum 
marketers and state governments to obtain information regarding 
gasoline distribution practices. We identified pipeline and terminal 
locations and, in several cases, information on GPA and total gasoline 
dispensed in given states and counties. Using the various types of 
information provided as a foundation, we then developed a basic 
methodology to identify counties which rely on GPA refineries for a 
majority of their gasoline. This methodology involved the following 
steps:
     Prepare a list of the states adjoining the eight GPA 
states (10 in total).
     Identify and locate the GPA refineries (those in the eight 
core GPA states that are not expected to qualify as small businesses 
under the low sulfur gasoline program).
     Identify the pipelines used by these GPA refineries to 
transport product to the terminals which supply gasoline to the 
adjoining states, and
     Identify all other refineries/terminals which service the 
adjoining states.
    Using this methodology, we developed an initial list of counties in 
the adjacent states which receive gasoline from the refineries in the 
eight GPA states. We then identified counties which receive the 
majority of their gasoline from a given source. To accomplish this 
task, we mapped counties that fell within a distance range of 100-150 
miles from refinery racks and pipeline terminals used by GPA refineries 
since essentially all gasoline is delivered to private and retail 
outlets by tanker truck. We used this distance range because our 
analysis of the information provided to us by the states and petroleum 
marketers suggested this was a good indicator of a county's primary 
source of gasoline. We then adjusted this initial list of counties 
based on two inputs. First, in some cases, county-specific data on the 
percent of gasoline dispensed that was produced at refineries in the 
eight GPA states was available. We used these data to include or 
exclude specific counties from the program. Second, we excluded a 
county if our analysis indicated that low sulfur gasoline would be 
available from nearby refineries and terminals which are not linked to 
the refineries in the eight core GPA states. In places where refineries 
and terminals are located nearby, we expect that, for economic reasons, 
retail outlets will obtain the majority of their gasoline at those 
locations rather than obtaining gasoline that has been transported a 
much greater distance from a terminal supplied by a refinery in a GPA 
state.
    In summary, under Sec. 80.215(a)(2) of the low sulfur gasoline 
program regulations, we propose to expand the boundaries of the GPA to 
include additional counties and tribal lands in states adjacent to the 
eight GPA states established under Sec. 80.215(a)(1) of the Tier 2 
final rule. To accomplish this, we identified the counties in which we 
reasonably concluded that approximately 50 percent or more of the 
gasoline volume dispensed is produced by refineries in the eight GPA 
states. Specifically, we (1) determined the location of terminals that 
receive such gasoline, and (2) identified retail outlets in the 
adjacent states that receive most of their gasoline from these 
terminals. Next, we excluded certain counties based on specific data 
which showed that more than half of the gasoline dispensed came from 
refineries outside the eight GPA states. We then included some 
additional counties based on specific data which showed that more than 
half of the gasoline dispensed came from refineries within the eight 
GPA states. Finally, we excluded some counties identified in our 
initial analysis based on the identification of nearby terminals that 
provided an economical source of gasoline from refineries outside the 
eight GPA states. We have included materials in the docket for today's 
action that describe in more detail the relevant information regarding 
the location of terminals and retail outlets for each county.

D. What Are the Results of the GPA Counties Process?

    Using the approach described above, we have identified 74 counties 
in six states that adjoin the GPA which we propose to include in the 
GPA. These counties are shown in Figure 1 below and are listed in the 
regulatory text in a new Sec. 80.215.

BILLING CODE 6560-50-P

[[Page 19316]]

[GRAPHIC] [TIFF OMITTED] TP13AP01.024

BILLING CODE 6560-50-C

    GPA gasoline sold in these counties would be subject to the 
requirements in Secs. 80.215-80.220, in addition to other applicable 
requirements in part 80. In our analysis, we concluded that no counties 
in Minnesota, Texas, Oklahoma, or Kansas need to be included in the 
GPA. No county in these states meets the criteria in the regulation and 
with the exception of Minnesota, these four states receive little or no 
gasoline from the refineries in the eight states now in the GPA 
program.
    The eight core GPA states contain a number of American Indian 
reservations. We propose to fully include these reservations in the GPA 
under today's action. The adjacent counties discussed above also 
contain 25 American Indian reservations. If a reservation is only 
partly within a GPA state or adjacent county, it would be considered 
fully in the area for purposes of the GPA program. This is consistent 
with the inclusion of entire states or counties in the program.
    Overall, the gasoline sold in these adjacent counties and American 
Indian reservations represents about one percent of U.S. gasoline 
consumption, which would bring the total gasoline consumption covered 
by the GPA program to 5.7 percent. Even though we are proposing to 
revise the GPA program to include these additional counties, the 
overall emission benefits of the early years of the Tier 2/Gasoline 
Sulfur program would not be reduced over those described in the final 
rule. The air quality analysis of the final Tier 2 program was based on 
the premise that all gasoline produced or used in the eight GPA states 
would be covered by the GPA program. Thus, GPA gasoline produced at 
refineries located in the eight GPA states was included in the air 
quality analysis.
    We believe that including the states, counties, and tribal lands 
described above would allow the objectives of the GPA program to be 
achieved.

III. Small Refiners

A. Documentation of Crude Oil Capacity by Foreign Refiners

    Section 80.235(c)(2) provides that a refiner's application for 
small refiner status must contain the total corporate crude oil 
capacity of each refinery as reported to the Energy Information 
Administration (EIA) of the U.S. Department of Energy. Because foreign 
refiners do not report their crude oil capacity to the EIA, today's 
action proposes to modify Sec. 80.235(c)(2) to provide that, in the 
case of a foreign refiner, the small refiner status application must 
contain the total crude oil capacity of each refinery as documented by 
a comparable reputable source, such as a professional publication or 
trade journal.
    Today's proposal would not change the definition of ``small 
refiner'' under Sec. 80.225(a), and we are not seeking

[[Page 19317]]

comment on any of the provisions of Sec. 80.225(a).

B. Oxygenates Included in Baseline

    Section 80.250 provides the equations to be used in determining 
small refiner sulfur baselines and baseline volumes. This section, 
however, does not address whether oxygenates added downstream from the 
small refinery are to be included in the calculations. The current low 
sulfur gasoline regulations at Sec. 80.295(b) provide that any refiner 
who, under the RFG and anti-dumping regulations, included oxygenates 
blended downstream in compliance calculations for 1997-1998, must 
include this oxygenate in the calculations for sulfur content under 
Sec. 80.295 for purposes of establishing a baseline for early credit 
generation. We intended the provisions of Sec. 80.250 under the small 
refiner program to be consistent with the provisions of Sec. 80.295, 
since both baselines are intended to reflect current sulfur levels at a 
refinery and are based on the same calculation. As a result, today's 
action proposes to modify Sec. 80.250 to require any small refiner who 
included oxygenates blended downstream in RFG/anti-dumping compliance 
calculations for 1997-1998, to include this oxygenate for purposes of 
establishing a sulfur baseline under Sec. 80.250.

IV. Credits and Allotments

A. Baseline Calculations

    The current low sulfur gasoline regulations at Sec. 80.205 require 
the annual refinery or importer average or corporate pool average 
calculations to be conducted to two decimal places. However, the 
provisions at Secs. 80.250 and 80.295 for calculating a sulfur baseline 
for purposes of determining small refinery standards and generating 
early credits and allotments currently do not contain a similar 
requirement. We intended the provisions for calculating a sulfur 
baseline to be consistent with the provisions for calculating the 
refinery or importer annual average sulfur level, including the 
requirement to conduct the calculations to two decimal places. As a 
result, today's action proposes to modify Secs. 80.250 and 80.295 to 
require the baseline calculations under these sections to be conducted 
to two decimal places.
    Note, however, that sulfur credits generated under the sulfur 
program are in units of ``ppm-gallons.'' See Sec. 80.305(c). We 
interpret Sec. 80.305(c) to require sulfur credits to be rounded to the 
nearest ppm-gallon. Therefore, in calculating sulfur credits using the 
equation in Sec. 80.305(a), the refiner should use the refinery's 
sulfur baseline value established under Sec. 80.250 or Sec. 80.295, 
conducted to two decimal places, and the refinery's actual annual 
average sulfur level calculated under Sec. 80.205, conducted to two 
decimal places. Once the sulfur credits are calculated, the refiner 
should round the credits to the nearest ppm-gallon.

B. Refineries That Were Non-Operational in 1997-98

    Section 80.290 requires a refiner to submit in its sulfur baseline 
application the annual average gasoline sulfur baseline for gasoline 
produced in 1997-1998 for each refinery for which the refiner is 
applying for a sulfur baseline. The regulations, however, do not 
address refineries that were shutdown or non-operational during 1997-
1998. Today's action proposes that, for such refineries, sulfur data 
for at least one annual averaging period would be required to establish 
a sulfur baseline for early credit generation. The refiner's baseline 
application would have to include the information required under 
Sec. 80.290(c) for the gasoline produced during each annual averaging 
period that the refinery was in operation after being reactivated. We 
will evaluate all of the data submitted by the refiner in determining 
the appropriate sulfur baseline for the refinery. Where we conclude 
that the data submitted reasonably reflects current sulfur levels, the 
refinery's baseline will be determined based on the annual average 
sulfur content for the most recent annual averaging period that the 
refinery was in operation. Today's rule would modify Secs. 80.290 and 
80.295 to clarify these requirements.

C. Foreign Refiners With Approved 1990 Baselines Who Did Not Submit 
Anti-dumping Compliance Reports to EPA in 1997-1998

    To establish a sulfur baseline for purposes of the small refinery 
standards or generating early sulfur credits, the regulations require 
refiners to submit to us sulfur baseline data for 1997-1998, including 
information on each batch of gasoline produced and the batch number 
assigned to the batch for purposes of compliance with the RFG/anti-
dumping regulations. See Secs. 80.245(a) and 80.290(c). We may then 
verify the data in the refiner's sulfur baseline submission by 
comparing it with the data submitted to us on the refiner's 1997-1998 
annual averaging reports. Foreign refiners who do not have an approved 
individual baseline under the RFG/anti-dumping regulations, and, 
therefore, did not submit batch reports to us in 1997-1998, are 
required to follow the procedures under Secs. 80.91 through 80.93 
(provisions for establishing an individual anti-dumping baseline) to 
establish the volume and sulfur content of gasoline that was produced 
at the foreign refinery and imported into the United States during 
1997-1998, for purposes of calculating a sulfur baseline under 
Sec. 80.250 or Sec. 80.295. See Secs. 80.250(b), 80.290(d) and 
80.410(b)(1). This is in addition to the other baseline establishment 
requirements under Sec. 80.245 or Sec. 80.290.
    The regulations, however, do not address the situation where a 
foreign refiner has received an approved individual anti-dumping 
baseline, but the baseline did not apply for purposes of compliance 
with the anti-dumping regulations until after the 1998 annual averaging 
period. Such a refiner would not have submitted any reports to us in 
1997-1998. In this situation, we believe it is appropriate for the 
foreign refinery's baseline to be based on the gasoline produced by the 
foreign refinery and imported to the United States during the period of 
time that the refinery was subject to its individual anti-dumping 
baseline. The sulfur baseline is intended to be a reasonable 
representation of a refinery's current sulfur level. See 65 FR 6761 
(February 10, 2000). We believe that a baseline based on the refinery's 
post-1998 sulfur data would provide a reasonable representation of the 
refinery's current sulfur level, and perhaps an even more accurate 
representation of the refinery's current sulfur level than 1997-1998 
data. As a result, today's proposal would require a foreign refiner who 
has an approved individual anti-dumping baseline that was not in effect 
in 1997-1998 to submit in its sulfur baseline application under 
Sec. 80.245 or Sec. 80.290 information and data for the gasoline 
produced by the refinery during each annual averaging period that the 
refinery was subject to its individual anti-dumping baseline. EPA would 
evaluate all of the data submitted by the foreign refiner in 
determining the appropriate sulfur baseline for the refinery. Where we 
conclude that the data they give us reasonably reflects current sulfur 
levels, the refinery's baseline would be determined based on the 
average sulfur content of gasoline produced by the refinery and 
imported to the United States during the most recent annual averaging 
period in which the refinery was subject to its individual anti-dumping 
baseline.

[[Page 19318]]

V. Sampling and Testing

A. Obtaining Test Results Before Gasoline Leaves the Refinery

1. Before January 1, 2004
    The current low sulfur gasoline regulations at Sec. 80.330(a)(1) 
require a refiner to collect a representative sample from each batch of 
gasoline produced and then to test each sample to determine its sulfur 
content prior to the gasoline leaving the refinery. The requirements in 
Sec. 80.330(a)(1) apply beginning on January 1, 2004, or January 1 of 
the first year of credit or allotment generation, whichever is earlier. 
Sections 80.330(a)(3) and (a)(4) provide the following exceptions: (1) 
Parties who collect and test composited samples of conventional 
gasoline are allowed to continue that practice until January 1, 2004; 
and (2) parties who are unable to obtain test results prior to the 
gasoline leaving the refinery are exempt from that requirement if they 
have an approved in-line blending exemption under Sec. 80.65(f)(4). The 
current low sulfur gasoline rule, therefore, requires parties who 
currently test each batch of gasoline by testing a representative 
sample taken from the certification tank (i.e., who do not test 
composite samples) to obtain test results prior to the gasoline leaving 
the facility for purposes of generating early credits or allotments 
prior to January 1, 2004. The current low sulfur gasoline rule also 
requires a refiner who produces gasoline using in-line blending 
equipment to have an in-line blending exemption under Sec. 80.65(f)(4) 
in order to generate early credits or early allotments.
    Under the RFG regulations, refiners who produce RFG by in-line 
blending are required to obtain an exemption under Sec. 80.65(f)(4). 
However, refiners who produce conventional gasoline by in-line blending 
are not required to obtain an exemption under Sec. 80.65(f)(4) for 
purposes of anti-dumping compliance. The current low sulfur gasoline 
regulations require these conventional gasoline refiners to apply for 
and receive an exemption under Sec. 80.65(f)(4) to generate early 
credits or allotments.
    We did not intend for refiners who test every batch of conventional 
gasoline by testing samples from the certification tank to have more 
severe testing requirements for purposes of generating early credits or 
allotments prior to January 1, 2004, than refiners who test composite 
samples. In addition, we now believe that the requirement under 
Sec. 80.330(a)(4) to obtain an exemption under Sec. 80.65(f)(4) for in-
line blending operations, regarding both RFG and conventional gasoline, 
is unnecessary for purposes of generating early credits or allotments. 
The requirement to obtain test results prior to the gasoline leaving 
the refinery, and the exemption requirement for in-line blenders, were 
intended to ensure that the sulfur level of each batch produced was 
known at the time of shipment. However, since early credit or allotment 
generation is based on the refinery's annual average sulfur level, 
credits and allotments are not calculated until the end of the annual 
averaging period, after the test results for all batches produced 
during the averaging period are obtained. Therefore, we believe it is 
unnecessary for refiners to obtain test data prior to the gasoline 
leaving the refinery for purposes of early credit or allotment 
generation. Moreover, there are no per-gallon sulfur standards prior to 
January 1, 2004, which would necessitate knowing the sulfur content of 
the gasoline prior to its leaving the refinery. As a result, today's 
action proposes to modify Sec. 80.330 to provide that refiners, 
including those who produce gasoline using computer-controlled in-line 
blending equipment, and those who test every batch of conventional 
gasoline, are not required to obtain test results prior to the gasoline 
leaving the refinery to generate early credits in 2000-2003 or early 
allotments in 2003. However, refiners generating early credits or 
allotments would have to meet the requirements under Sec. 80.330 to 
obtain a representative sample of each batch of gasoline produced, and 
conform their sampling methods to the ASTM methodologies set forth in 
Secs. 80.330(b)(1) and (b)(2). Today's rule would also modify the 
provisions of Sec. 80.410 to allow foreign refiners who generate early 
sulfur credits in 2000-2003 to ship gasoline from the foreign refinery 
without having the sulfur content included in the product transfer 
documents.
2. January 1, 2004 and Beyond
    Beginning on January 1, 2004, refiners would have to obtain test 
results before the gasoline leaves the refinery or import facility. 
There is an exception to this requirement for refiners who use 
computerized in-line blending methods. In-line blenders typically route 
finished gasoline out of the refinery before an entire batch is 
completed so they are unable to comply with the requirement to test 
prior to shipment. An automatic sampler takes a large number of small 
volumes from a batch throughout production and does not have a 
representative sample until the blending is completed. The current low 
sulfur gasoline regulations address in-line blending by providing that 
refiners who use such in-line blending equipment may meet the 
requirement to test prior to shipment under the terms of an exemption 
under Sec. 80.65(f)(4) of the RFG regulations. The basis for this 
provision is that these exemption holders measure sulfur on-line and 
therefore know the sulfur concentration of each batch throughout the 
blending process and can thereby prevent non-complying batches from 
leaving the refinery.
    Currently, all exemption holders are producers of RFG and must meet 
a wide range of requirements, including the on-line measurement of 
several properties in addition to sulfur. See Sec. 80.65(f)(4). We do 
not believe it is practical for in-line blenders of conventional 
gasoline, with fewer requirements, to meet the requirements designed 
for RFG blenders, and there is no process under the current low sulfur 
gasoline regulations for granting a more specialized exemption. As a 
result, today's action proposes to revise Sec. 80.330(a)(4), which 
requires all in-line blenders to have an exemption granted under 
Sec. 80.65(f)(4), to distinguish between conventional gasoline and RFG 
in-line blenders.
    Today's action proposes to remove the requirement that in-line 
blenders of conventional gasoline obtain an exemption under 
Sec. 80.65(f)(4) to ship gasoline prior to testing. Instead, today's 
action would provide that any refiner who uses in-line blending 
equipment may be exempt from the requirement to obtain test results 
prior to releasing the gasoline from the refinery, provided that the 
refiner submits to us the information required for an in-line blending 
exemption under Sec. 80.65(f)(4)(i)(A) (requiring a detailed 
description of the in-line blending operation), or the refiner has an 
in-line blending exemption granted under Sec. 80.65(f)(4). Today's 
action also proposes to require the refiner to submit any additional 
information requested by us and to comply with any other requirements 
that we include in the exemption. For refiners that do not hold an 
exemption under Sec. 80.65(f)(4), in the absence of notification by us 
that the exemption has not been approved, or that additional 
information is required or other requirements have been included in the 
exemption, the in-line blending exemption would be effective 60 days 
from our receipt of the refiner's submission of information.
    We believe it is important to ensure that the on-line analyzer 
technology and the refiner's methodology and procedures are sufficient 
for the gasoline sulfur levels that the refinery

[[Page 19319]]

will have when the low sulfur gasoline rule is implemented, for both 
RFG and conventional gasoline. Generally, we will require the accuracy 
of the on-line sulfur measurement to be sufficient to identify product 
segments that violate the applicable per-gallon sulfur standards. The 
control of an in-line blending system must be sufficient to prevent 
non-complying gasoline from leaving the refinery. Recordkeeping must be 
sufficient to allow us to verify the sulfur compliance of each batch 
and the accuracy and control capability of the in-line blending system.
    Currently, on-line sulfur measurement technology is evolving and 
refiners are evaluating analyzers. In the preamble to the final rule, 
we indicated that we will be asking in-line blending refiners with 
exemptions under Sec. 80.65(f)(4) to submit additional information 
under the sulfur rule, including information on how sulfur is monitored 
and how streams of gasoline are distributed in the in-blending process. 
See 65 FR 6807. As indicated above, today's action proposes to include 
provisions which require in-line blender-refiners, both refiners of 
conventional gasoline and refiners of RFG under a Sec. 80.65(f)(4) 
exemption, to submit any additional information requested by us and to 
comply with other requirements that we include in the exemption. 
Today's action also proposes that we may modify the requirements of an 
exemption under Sec. 80.330(a)(4) if we determine that the in-line 
blending operation does not effectively or adequately control, monitor 
or document the sulfur content of the gasoline, or if we determine that 
other circumstances exist which merit modification of the requirements 
of an exemption, such as advancements in the state-of-the-art for in-
line blending measurement which allow for additional control or more 
accurate monitoring or documentation of sulfur content. Consistent with 
other provisions of the sulfur rule, today's action provides that a 
refiner's exemption will be void ab initio if we determine that the 
refiner provided false or inaccurate information in any submission 
required for an exemption under Sec. 80.330(a)(4).

B. Sample Retention

1. Limitation on Length of Time to Retain Samples
    Section 80.335(a)(2) requires refiners to retain sample portions 
for the most recent 20 samples collected, or for each sample collected 
during the most recent 21 day period, whichever is greater. This 
section specifies the minimum number of batch samples from a refinery, 
which once created, must be retained. The regulation does not 
specifically address the maximum amount of time that any particular 
sample must be retained. At the time the sulfur rule was promulgated, 
it was assumed that refineries and importers produce or import a 
substantial number of batches each year, and, therefore, would accrue 
the 20 batch minimum in a relatively short time period and be able to 
dispose of any additional, older samples quickly. We now understand, 
however, that at least one refiner or importer handles less than a 
handful of batches each year. Under the current low sulfur gasoline 
rule, such a refiner or importer may be required to retain batch 
samples for as long as 10 to 20 years. We did not intend for refiners 
to be required to retain sulfur samples for that length of time. As a 
result, today's action proposes to modify Sec. 80.335(a)(2) to place a 
limit of 90 days on the length of time that any one sample must be 
retained.
    We believe that placing a 90 day maximum on sample retention would 
provide a reasonable balance between our need to have samples available 
for enforcement purposes and burden on the industry. Ideally, we would 
require all samples to be available for at least 90 days. However, we 
understand that retaining a large number of samples could create an 
undue burden on parties. Under today's action only parties who produce 
relatively few batches of gasoline would be required to keep any 
samples for as long as 90 days. We do not believe this would unduly 
burden such parties, since they would only need to retain a few 
samples. Parties who produce a substantial number of batches, for whom 
sample retention is potentially a greater burden, would be able to 
discard samples in less than 90 days.
2. Composited Samples
    Section 80.335(a) provides that beginning on January 1, 2004, or 
January 1 of the first year of allotment or credit generation, 
whichever is earlier, a refiner or importer must retain representative 
samples of the gasoline batch samples analyzed under the requirements 
of Sec. 80.330. Under 80.330(a)(3), composited samples are treated as 
single batches of gasoline and are allowed for sulfur testing purposes 
prior to January 1, 2004. Today's action proposes to modify Sec. 80.335 
to clarify that, prior to January 1, 2004, refiners who analyze 
composited samples would be required to retain portions of the 
composited samples, and not portions of samples of each batch 
comprising the composited samples.
3. Sample Retention for Reformulated Blendstocks for Oxygenate Blending
    Section 80.335 describes the sample retention requirements for 
refiners or importers. However, this section does not address how 
reformulated blendstock for oxygenate blending (RBOB) samples should be 
considered. Section 80.69(a)(2) of the RFG regulations requires 
refiners to conduct testing on RBOB by adding the specified type and 
amount of oxygenate to a representative sample of the RBOB, and 
determining the properties and characteristics of the resulting 
gasoline (i.e., a ``handblend''). Section 80.335(a) requires refiners 
to collect a representative portion of each sample analyzed and retain 
such sample portions as specified in Sec. 80.335(a)(2). We interpret 
Sec. 80.335(a) to require refiners to retain samples of the RBOB 
batches and samples of the ethanol used to conduct the handblend 
testing, rather than samples of the actual handblend. Refiners, 
therefore, would not be required to create additional volumes of the 
handblend samples for purposes of fulfilling the sample retention 
requirements of Sec. 80.335. Having the RBOB and accompanying ethanol 
samples available to us would allow us to combine samples of the actual 
RBOB and ethanol used in the handblend. This would enable us to 
determine whether the refiner blended the handblend with proper amounts 
of the components and properly conducted the testing. Today's action 
proposes to clarify Sec. 80.335 with regard to the sample retention 
requirement for RBOB.

VI. Changes to Vehicle Compliance Regulations

    The table in Section I, above, lists minor changes which we propose 
to make to Subpart S of 40 CFR Part 86 which contains the certification 
compliance regulations for new motor vehicles. The changes would 
correct some errors and inconsistencies and add some clarification. We 
believe these changes are minor and technical in nature, and would be 
made as a direct final rule.

VII. Administrative Requirements

A. Administrative Designation and Regulatory Analysis

    Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency 
is required to determine whether this regulatory action would be 
``significant'' and therefore subject to review by the Office of 
Management and Budget (OMB) and the requirements of the Executive 
Order. The order defines a ``significant regulatory action'' as any

[[Page 19320]]

regulatory action that is likely to result in a rule that may:
     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 governments or 
communities;
     Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
     Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or,
     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, we have determined 
that this proposed rule would not be a ``significant regulatory 
action.''

B. Regulatory Flexibility

    We have determined that this proposal would not have a significant 
impact on a substantial number of small entities, and that it is 
therefore not necessary to prepare a regulatory flexibility analysis in 
conjunction with this direct final rule. Because today's rule would 
correct, amend, and revise certain provisions of the December 1999 
regulations for the control of air pollution from new motor vehicles 
and for low sulfur gasoline, regulated entities would find it easier to 
comply with the requirements of the Tier 2/Gasoline sulfur program. 
Today's rule also identifies counties for inclusion in the GPA, which 
would result in additional flexibility for refiners providing gasoline 
to those areas.

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq., and 
implementing regulations, 5 CFR Part 1320, do not apply to this action 
as it does not involve the collection of information as defined 
therein.

D. Intergovernmental Relations

1. 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, We 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more for 
any single year. Before promulgating a rule for which a written 
statement is needed, section 205 of the UMRA generally requires us 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 that is 
not the least costly, most cost-effective, or least burdensome 
alternative if we provide an explanation in the final rule of why such 
an alternative was adopted.
    Before we establish any regulatory requirement that may 
significantly or uniquely affect small governments, including tribal 
governments, we must develop a small government plan pursuant to 
section 203 of the UMRA. Such a plan must provide for notifying 
potentially affected small governments, and enabling officials of 
affected small governments to have meaningful and timely input in the 
development of our regulatory proposals with significant federal 
intergovernmental mandates. The plan must also provide for informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    This proposal contains no federal mandates for state, local, or 
tribal governments as defined by the provisions of Title II of the 
UMRA. The rule would not impose any enforceable duties on any of these 
governmental entities. Nothing in the rule would significantly or 
uniquely affect small governments.
    We have determined that this rule does not contain a federal 
mandate that may result in estimated expenditures of more than $100 
million to the private sector in any single year. This action would 
have the net effect of correcting, amending, and revising certain 
provisions of the Tier 2/Gasoline Sulfur program, and identifying 
counties for inclusion in the GPA. Therefore, the requirements of the 
Unfunded Mandates Act do not apply to this action.
2. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments
    On January 1, 2001, Executive Order 13084 was superseded by 
Executive Order 13175. However, this proposed rule was developed during 
the period when Executive Order 13084 was still in force, and so tribal 
considerations were addressed under Executive Order 13084. If EPA 
receives adverse comment on one or more distinct amendments, 
paragraphs, or sections of this proposal, we will publish a timely 
withdrawal in the Federal Register indicating which provisions of the 
direct final rule are being withdrawn due to adverse comment.
    Under Executive Order 13084, we may not issue a regulation that is 
not 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 we consult with those 
governments. If we comply by consulting, Executive Order 13084 requires 
us to provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of our 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 us 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 would not uniquely affect the communities of American 
Indian tribal governments since the motor vehicle emissions, motor 
vehicle fuel, and other related requirements for private businesses in 
today's rule will have national applicability. Furthermore, today's 
rule would not impose any direct compliance costs on these communities 
and no circumstances specific to such communities exist that will cause 
an impact on these communities beyond those discussed in the other 
sections of today's document. The effect of today's rule is no more 
significant than the Tier 2/Gasoline Sulfur program for tribes within 
the original GPA; under today's action, gasoline sold in certain tribal 
lands will be subject to the GPA standards rather than the otherwise 
applicable gasoline sulfur standards until 2007. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule. Thus, our conclusions regarding the impacts from the 
implementation of today's rule discussed in the other sections of this 
preamble are equally applicable to the

[[Page 19321]]

communities of American Indian tribal governments.
    As described elsewhere in this proposal, the overall emission 
benefits of the early years of the Tier 2/Gasoline Sulfur program are 
not reduced over those described in the final rule. The air quality 
analysis of the final Tier 2 program was based on the premise that all 
gasoline produced or used in the eight GPA states would be covered by 
the GPA program. Thus, GPA gasoline produced at refineries located in 
the eight GPA states was included in the air quality analysis.
3. Executive Order 13132 (Federalism)
    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires us 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 section 6 of Executive Order 13132, we 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 we consult 
with State and local officials early in the process of developing the 
proposed regulation. We 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.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt State or local law, even if those rules do not 
have federalism implications (i.e., the rules would 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). Those 
requirements include providing all affected State and local officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, we also must consult, to the 
extent practicable, with appropriate State and local officials 
regarding the conflict between State law and Federally protected 
interests within the agency's area of regulatory responsibility.
    This proposal does not have federalism implications. It would 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. This proposal would correct, 
amend, and revise certain provisions of an earlier rule that adopted 
national emissions standards for certain categories of motor vehicles 
and national standards to control gasoline sulfur, and proposes 
additional areas to be subject to the GPA program for low sulfur 
gasoline. The requirements of the rule would be enforced by the federal 
government at the national level. Thus, the requirements of section 6 
of the Executive Order do not apply to this rule. Although section 6 of 
Executive Order 13132 does not apply to this rule, we did consult with 
State and local officials in developing this proposal.

E. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to 
use voluntary consensus standards in our regulatory activities unless 
it would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) developed or adopted by voluntary consensus standards 
bodies. The NTTAA directs us to provide Congress, through OMB, 
explanations when the we decide not to use available and applicable 
voluntary consensus standards.
    This proposal references technical standards adopted by us through 
previous rulemakings. No new technical standards would be established 
under today's proposal. The standards referenced in today's proposal 
involve the measurement of gasoline fuel parameters and motor vehicle 
emissions. The measurement standards for gasoline fuel parameters 
referenced in today's proposal are all voluntary consensus standards. 
The motor vehicle emissions measurement standards referenced in today's 
proposal are government-unique standards that were developed by us 
through previous rulemakings. These standards have served our emissions 
control goals well since their implementation and have been well 
accepted by industry. We are not aware of any voluntary consensus 
standards for the measurement of motor vehicle emissions. Therefore, we 
are using the existing EPA-developed standards found in 40 CFR Part 86 
for the measurement of motor vehicle emissions.

F. Executive Order 13045: Children's Health Protection

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 F.R. 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 we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, section 5-501 of the Order directs us to 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 us.
    This proposal is not subject to the Executive Order because it is 
not an economically significant regulatory action as defined by 
Executive Order 12866. Furthermore, this proposal does not concern an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children.

[[Page 19322]]

VIII. Statutory Provisions and Legal Authority

    Statutory authority for the vehicle controls set in today's 
proposal can be found in sections 202, 206, 207, 208, and 301 of the 
Clean Air Act (CAA), as amended, 42 U.S.C. sections 7521, 7525, 7541, 
7542 and 7601.
    Statutory authority for the fuel controls set in today's proposal 
comes from section 211(c) of the CAA (42 U.S.C., section 7545(c)), 
which allows us to regulate fuels that either contribute to air 
pollution which endangers public health or welfare or which impair 
emission control equipment. Additional support for the procedural and 
enforcement-related aspects of the fuel's controls in today's proposal, 
including the record keeping requirements, comes from sections 114(a) 
and 301(a) of the CAA.

List of Subjects

40 CFR Part 80

    Environmental protection, Fuel additives, Gasoline, Imports, 
Labeling, Motor vehicle pollution, Penalties, Reporting and 
recordkeeping requirements.

40 CFR Part 86

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Labeling, Motor vehicle pollution, 
Penalties, Reporting and recordkeeping requirements.

    Dated: January 19, 2001.
Carol M. Browner,
Administrator.
[FR Doc. 01-8928 Filed 4-12-01; 8:45 am]
BILLING CODE 6560-50-P