[Federal Register Volume 67, Number 106 (Monday, June 3, 2002)]
[Rules and Regulations]
[Pages 38338-38340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13807]



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Part IV





Environmental Protection Agency





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40 CFR Part 80



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

  Federal Register / Vol. 67, No. 106 / Monday, June 3, 2002 / Rules 
and Regulations  

[[Page 38338]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[AMS-FRL-7221-5]
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: Final rule.

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SUMMARY: Due to adverse comments, EPA is removing one amendment 
included in the direct final rule published in the Federal Register on 
April 13, 2001, related to the Tier 2/Gasoline Sulfur program, 
hereinafter referred to as the Tier 2 rule (February 10, 2000). EPA 
published both the direct final rule and a concurrent notice of 
proposed rulemaking to correct, amend, and revise certain provisions of 
the Tier 2 rule for purposes of assisting regulated entities with 
program implementation and compliance. The only amendment removed by 
today's action is the revision to the provision concerning the 
definition of ``small refiner'' for those refiners that acquire and/or 
reactivate a refinery that was shutdown or was non-operational between 
January 1, 1998, and January 1, 1999. The language regarding this 
provision contained in the Tier 2 rule is reinstated. EPA plans no 
further action on the concurrent notice of proposed rulemaking.

EFFECTIVE DATE: July 12, 2001.

ADDRESSES: Materials relevant to this rulemaking are contained in 
Public Docket No. A-97-10 at the following address and are available 
for review from 8 a.m. to 5:30 p.m., Monday through Friday, except on 
government holidays: U.S. Environmental Protection Agency (EPA), Air 
Docket (6102), Room M-1500, 401 M Street, SW., Washington, DC 20460. 
You can contact 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: On April 13, 2001, we issued a direct final 
rule (66 FR 19296) which included 27 amendments to correct, amend, and 
revise certain provisions of the Tier 2 rule (February 10, 2000, 65 FR 
6698) for purposes of assisting regulated entities with program 
implementation and compliance. In that direct final rule, we stated, 
``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 comments. We will address all public 
comments in a subsequent final rule based on the proposed rule.'' We 
also issued a notice of proposed rulemaking (66 FR 19311), in which the 
Agency proposed and solicited public comment on the same 27 amendments. 
We received adverse comments on one amendment in this rulemaking: the 
amendment to 40 CFR 80.225(d) ([sect] 80.225(d)).
    As a result of these adverse comments, we are removing the 
amendment regarding [sect] 80.225(d) from the direct final rule. The 
language contained in [sect] 80.225(d) of the prior rule, published on 
February 10, 2000, is reinstated as it existed prior to the April 13, 
2001 direct final rule. In addition, as explained below, we are taking 
no further action regarding the concurrent notice of proposed 
rulemaking published on April 13, 2001. The other 26 amendments that 
did not receive adverse comment became effective on July 12, 2001, as 
provided in the April 13, 2001 direct final rule.
    The revision of [sect] 80.225(d) was included in the direct final 
rule to clarify that the employee/crude oil capacity criteria for small 
refiner status applies to parties seeking small refiner status under 
[sect] 80.225(d). See 66 FR 19296. Although we believe these criteria 
did apply under the small refiner provisions of the Tier 2 rule as 
published on February 10, 2000 (pre-existing provisions), application 
of the employee/crude oil capacity criteria to refiners applying for 
small refiner status under [sect] 80.225(d) was not explicitly 
expressed in the pre-existing provision of [sect] 80.225(d). As a 
result, we added language to [sect] 80.225(d) to make this 
clarification. However, in amending [sect] 80.225(d) to add this 
clarifying language, we also reworded the pre-existing language of a 
separate sentence of this paragraph which resulted in an unintended 
substantive change to the provisions of [sect] 80.225(d). Specifically, 
the amendment would have unintentionally limited the scope of 
eligibility for small refiners applying under [sect] 80.225(d) only to 
refineries that were shutdown or non-operational between January 1, 
1998 and January 1, 1999, rather than also to refineries that were 
acquired after January 1, 1999. The adverse comments we received on the 
amendment to [sect] 80.225(d) relate only to this unintended 
substantive change.
    As stated above, the pre-existing language in [sect] 80.225(d) 
regarding the reactivation of refineries that were shutdown or non-
operational between January 1, 1998 and January 1, 1999, and refineries 
that were acquired after January 1, 1999, is the regulatory language we 
are reinstating at this time. We are removing the revision to [sect] 
80.225(d) without providing prior notice and comment because we find 
good cause within the meaning of 5 U.S.C. 553(b). Notice and comment 
would be impracticable, as we need to remove this revision quickly 
because it went into effect July 12, 2001.

Access to Rulemaking Documents Through the Internet

    Today's action is available electronically on the day of 
publication from EPA's Federal Register Internet Web site listed below. 
Electronic copies of this preamble, regulatory language, and other 
documents associated with today's final rule 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.

I. Administrative Requirements

A. Administrative Designation and Regulatory Analysis

    Under Executive Order 12866 (58 FR 51735, October 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 
regulatory action that is likely to result in a rule that may:
    [sbull] Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the

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economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities;
    [sbull] Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    [sbull] Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or,
    [sbull] 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 final rule is not a ``significant regulatory action.''

B. Regulatory Flexibility

    Today's final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice and comment requirements under the APA or any 
other statute because we find good cause within the meaning of 5 U.S.C. 
553(b).
    Although this final rule is not subject to the RFA, we nonetheless 
have assessed the potential of this rule to adversely impact small 
entities subject to the rule. This rule will have no adverse impact on 
any small entities subject to the rule. As stated above, today's action 
removes the amendment to [sect] 80.225(d) concerning the definition of 
``small refiner'' for those refiners that acquire and/or reactivate a 
refinery that was shutdown or was non-operational between January 1, 
1998, and January 1, 1999. Specifically, the amendment to [sect] 
80.225(d) would have unintentionally limited the scope of eligibility 
for small refiners applying under [sect] 80.225(d) only to refineries 
that were shutdown or non-operational between January 1, 1998 and 
January 1, 1999, rather than also to refineries that were acquired 
after January 1, 1999. The language regarding this provision that was 
contained in the Tier 2 rule published on February 10, 2000 (65 FR 
6698) is reinstated.

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 rule contains no federal mandates for state, local, or tribal 
governments as defined by the provisions of Title II of the UMRA. The 
rule imposes no enforceable duties on any of these governmental 
entities. Nothing in the rule will 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 has the 
net effect of removing the amendment regarding 40 CFR 80.225(d) from 
the direct final rule published on April 13, 2001 and reinstating the 
language contained in 40 CFR 80.225(d) of the prior rule, published on 
February 10, 2000 (65 FR 6698). Therefore, the requirements of the 
Unfunded Mandates Act do not apply to this action.
2. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. This final 
rule removes one amendment included in the direct final rule published 
in the Federal Register on April 13, 2001, related to the Tier 2/
Gasoline Sulfur program and reinstates the language contained in 40 CFR 
80.225(d) of the prior rule, published on February 10, 2000 (65 FR 
6698). Thus, Executive Order 13175 does not apply to this rule.
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 
consults 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

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rules that preempt State or local law, even if those rules do not have 
federalism implications (i.e., the rules will not have substantial 
direct effects on the States, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government). 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 final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The requirements of the rule 
will 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 rule.

E. Executive Order 13211: Energy Effects

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

F. 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 we decide not to use available and applicable 
voluntary consensus standards.
    This rule references technical standards adopted by us through 
previous rulemakings. No new technical standards are established in 
today's rule.

G. Executive Order 13045: Children's Health Protection

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that 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 rule is not subject to the Executive Order because it is not 
an economically significant regulatory action as defined by Executive 
Order 12866. Furthermore, this rule does not concern an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children.

H. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established an effective date of July 12, 2001. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 80

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

    Dated: May 23, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons set forth in the preamble, 40 CFR part 80 is 
amended as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

    1. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7545, and 7601(a).

    2. 40 CFR 80.225(d) is revised to read as follows:


[sect] 80.225  What is the definition of a small refiner?

* * * * *
    (d) Notwithstanding the definition in paragraph (a) of this 
section, refiners who acquire a refinery after January 1, 1999, or 
reactivate a refinery that was shutdown or was non-operational between 
January 1, 1998, and January 1, 1999, may apply for small refiner 
status in accordance with the provisions of [sect] 80.235.
[FR Doc. 02-13807 Filed 5-31-02; 8:45 am]
BILLING CODE 6560-50-P