[Federal Register Volume 67, Number 107 (Tuesday, June 4, 2002)]
[Proposed Rules]
[Pages 38453-38456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13977]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-7222-6]
RIN 2060-AK07


Regulation of Fuels and Fuel Additives: Modifications to 
Reformulated Gasoline Covered Area Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to make several minor modifications to its 
reformulated gasoline (RFG) regulations to reflect changes in the 
covered areas for the federal RFG program, and to delete obsolete 
language and clarify existing language in the provisions listing the 
federal RFG covered areas. These changes include: Deleting the seven 
southern counties in Maine from the RFG covered areas list, reflecting 
their opt-out of the RFG program as of March 10, 1999; adding the 
Sacramento Metro and San Joaquin Valley nonattainment areas to the list 
of RFG covered areas, reflecting the Sacramento Metro Area's inclusion 
in the RFG program as of June 1, 1996 and the San Joaquin Valley Area's 
inclusion in the RFG program on December 10, 2002; and deleting the 
text which extended the RFG opt-in provisions to all ozone 
nonattainment areas including previously designated ozone nonattainment 
areas, reflecting a court decision in January, 2000, which invalidated 
this language. This proposal also makes certain other minor changes in 
the provisions listing the RFG covered areas for purposes of 
clarification. In the Final Rules section of this Federal Register, EPA 
is approving these modifications as a direct final rule without prior 
proposal because the Agency views this as a noncontroversial submittal 
and anticipates no adverse comments. A detailed rationale for these 
modifications is set forth in the direct final rule. If no adverse 
comments are received in response to this action, no further activity 
is contemplated. If EPA receives adverse comments, the direct final 
rule will be withdrawn and all public comments received will be 
addressed in a subsequent final rule based on this proposed rule. EPA 
will not institute a second comment period. Any parties interested in 
commenting on this action should do so at this time.

DATES: Written comments must be received on or before July 5, 2002.

ADDRESSES: Comments should be mailed (in duplicate if possible) to John 
Brophy, Office of Transportation and Air Quality (mail code 6406J), 
U.S. Environmental Protection Agency, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW, Washington, DC, 20460, and to the following 
docket address: Docket A-2001-32, Air Docket Section, Mail Code 6102, 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460, in room M-1500 Waterside Mall. Materials relevant to today's 
rulemaking have been placed in the Docket A-2001-32 at the docket 
address listed above, and may be inspected on business days from 8:00

[[Page 38454]]

a.m. to 5:30 p.m. A reasonable fee may be charged for copying docket 
material.
    Materials relevant to today's rulemaking regarding the removal of 
the seven Maine counties from the federal RFG program are also 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA-New England, One Congress Street, 11th floor, 
Boston, MA and the Bureau of Air Quality Control, Department of 
Environmental Protection, 71 Hospital Street, Augusta, ME 04333. For 
further information, contact Robert C. Judge at (617) 918-1045.
    Materials relevant to today's rulemaking regarding the self-
executing change in status of the Sacramento Metro and San Joaquin 
Valley nonattainment areas are also available for inspection during 
normal business hours in the Air Docket, EPA Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105. This rule and the Technical Support 
Documents for the proposed actions are also available in the air 
programs section of EPA Region 9's website, http://www.epa.gov/region09/air. Interested persons may make an appointment with Ms. 
Virginia Peterson at (415) 744-1265, to inspect the docket between 9:00 
a.m. and 4:00 p.m. A reasonable fee may be charged for copying docket 
material.
    There are several other dockets that may also contain related 
materials of interest to the public:
    Materials relevant to EPA's approval of a State Implementation Plan 
(SIP) revision submitted by the State of Maine are available for public 
inspection during normal business hours, by appointment at the Office 
of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, 11th floor, Boston, MA; 
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room M-1500, 401 M Street, (Mail Code 6102), SW., 
Washington, DC; and the Bureau of Air Quality Control, Department of 
Environmental Protection, 71 Hospital Street, Augusta, ME 04333. For 
further information, contact Robert C. Judge at (617) 918-1045.
    Materials regarding the reclassification of the Sacramento Metro 
Area as a ``Severe'' ozone nonattainment area are in Docket A-94-09. 
The docket is located at the Air Docket Section, Mail Code 6102, U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460, in room M-1500 Waterside Mall. Documents may be inspected on 
business days from 8:00 a.m. to 5:30 p.m. A reasonable fee may be 
charged for copying docket material.
    Materials regarding the reclassification of the San Joaquin Valley 
Area as a ``Severe'' ozone nonattainment area are available for 
inspection during normal business hours in the Air Docket, EPA Region 
IX, 75 Hawthorne Street, San Francisco, CA 94105. This rule and the 
Technical Support Documents for the proposed actions are also available 
in the air programs section of EPA Region 9's website, http://www.epa.gov/region09/air. Interested persons may make an appointment 
with Ms. Virginia Peterson at (415) 744-1265, to inspect the docket 
between 9:00 a.m. and 4:00 p.m. A reasonable fee may be charged for 
copying docket material.
    Materials regarding the extension of the RFG opt-in provisions to 
all ozone nonattainment areas including previously designated ozone 
nonattainment areas, and the January, 2000, court decision, are in 
Docket A-96-30. The docket is located at the Air Docket Section, Mail 
Code 6102, U.S. Environmental Protection Agency, 401 M Street, SW, 
Washington, DC 20460, in room M-1500 Waterside Mall. Documents may be 
inspected on business days from 8:00 a.m. to 5:30 p.m. A reasonable fee 
may be charged for copying docket material.
    Materials relevant to the removal of the Phoenix area from the 
federal RFG program are in Docket A-98-23. The docket is located at the 
Air Docket Section, Mail Code 6102, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460, in room M-1500 
Waterside Mall. Documents may be inspected on business days from 8:00 
a.m. to 5:30 p.m. A reasonable fee may be charged for copying docket 
material.

FOR FURTHER INFORMATION CONTACT: John Brophy, U.S. Environmental 
Protection Agency, Office of Air and Radiation, 1200 Pennsylvania Ave., 
NW (Mail Code 6406J), Washington, DC 20460, (202) 564-9068, e-mail 
address: [email protected]

SUPPLEMENTARY INFORMATION: For additional information, see the direct 
final rule which is located in the Rules section of this Federal 
Register.

I. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (Oct. 4, 1993), the Agency 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) 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;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is therefore not subject to OMB review.

B. Paperwork Reduction Act

    This proposed action does not impose any new information collection 
burden. Today's proposed rule merely amends EPA's regulations to 
reflect the current status of covered areas within the RFG program. 
These various changes in status are not dependant on today's proposed 
rulemaking, but have occurred (or will occur) as the result of separate 
agency action and self-executing statutory provisions. However, the 
Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing [RFG] 
regulations [CFR citation--40 CFR part 80, subparts D, E and F,] under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and has assigned OMB control number 2060-0277 (EPA ICR No. 1591.13).
    Copies of the ICR document(s) may be obtained from Sandy Farmer, by 
mail at the Office of Environmental Information, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822); 1200 
Pennsylvania Ave., NW, Washington, DC 20460, by e-mail at 
[email protected], or by calling (202) 260-2740. A copy may also be 
downloaded off the internet at http://www.epa.gov/icr. Include the ICR 
and / or OMB number in any correspondence.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of

[[Page 38455]]

collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. 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, EPA 
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 in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA 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 EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying affected small governments, enabling officials of 
affected small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. Today's proposed rule, therefore, is 
not subject to the requirements of sections 202 and 205 of the UMRA.

D. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, Apr. 23, 1997) applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, Aug. 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed 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. This proposed rule simply makes 
several minor modifications in the regulations to reflect changes in 
the covered areas for the federal RFG program, and to delete obsolete 
language and clarify existing language in the provisions listing the 
federal RFG covered areas. Thus, Executive Order 13132 does not apply 
to this proposed rule.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so 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) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed action does not involve technical standards. This 
proposed rule simply makes several minor modifications in the 
regulations to reflect changes in the covered areas for the federal RFG 
program, and to delete obsolete language and clarify existing language 
in the provisions listing the federal RFG covered areas. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

G. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A firm having no more than 
1,500 employees and no more than 75,000 barrels per day capacity of 
petroleum-based inputs, including

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crude oil or bona fide feedstocks;.\1\ according to Small Business 
Administration (SBA) size standards established under the North 
American Industry Classification System (NAICS); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
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    \1\ Capacity includes owned or leased facilities as well as 
facilities under a processing agreement or an agreement such as an 
exchange agreement or a throughput. The total product to be 
delivered under the contract must be at least 90 percent refined by 
the successful bidder from either crude oil or bona fide feedstocks.
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    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Today's rule 
revises the introductory text of Sec. 80.70(j) to distinguish the 
nonattainment areas that have opted into the RFG program from those 
that are required to be in the program under the Clean Air Act. In 
addition, today's rule revises the text of sections 80.70(l) and (n) to 
make these provisions clearer. These minor revisions are strictly 
organizational and do not change the substance or intent of these 
provisions in any way. Today's rule also removes the current provisions 
of Sec. 80.70(m) relating to Phoenix as an opt-in covered area, since 
the Phoenix area is no longer a covered area as of June 10, 1998. 
Published on August 11, 1998, in the Federal Register (at 63 FR 43044) 
is a public announcement of EPA's approval of the Arizona Governor's 
petition and the effective date of the Phoenix opt-out. The opt-out 
effective date for the Phoenix area was June 10, 1998. The provisions 
for the Sacramento and San Joaquin Valley covered areas, described 
above, are included in a new Sec. 80.70(m).
    Today's amendments to the CFR reflect changes that have occurred in 
separate actions in accordance with EPA's regulations and the CAA. This 
rule is not itself an approval of Maine's or Arizona's opt-out request-
-Agency action approving those petitions occurred earlier in separate 
administrative proceedings. Similarly, neither the reclassification of 
the Sacramento and San Joaquin Valley nonattainment areas, nor the 
self-executing change in status of these areas to RFG ``covered 
areas,'' are dependent on today's action. EPA is simply modifying the 
list of covered areas in the RFG regulations, 40 CFR 80.70, so the list 
will reflect EPA's earlier approval of the Maine and Arizona opt-out 
requests, and the self-executing change in the status of the Sacramento 
and San Joaquin Valley nonattainment areas. Thus, the various elements 
of today's direct final rule involve little or no exercise of agency 
discretion. Rather today's actions essentially are ministerial 
regulatory amendments.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, Nov. 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.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    Today's proposed rule does not have tribal implications and will 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This proposed rule simply makes several minor modifications in the 
regulations to reflect changes in the covered areas for the federal RFG 
program, and to delete obsolete language and clarify existing language 
in the provisions listing the federal RFG covered areas. Thus, 
Executive Order 13175 does not apply to this proposed rule.

I. Executive Order 13211 (Energy Effects)

    This proposed 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.

II. Statutory Authority

    The Statutory authority for the proposed action today is granted to 
EPA by sections 211(c) and (k), 301, and 307 of the Clean Air Act, as 
amended; 42 U.S.C. 7545(c) and (k), 7601, 7607; and 5 U.S.C. 553(b).

III. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this proposed action must be filed in the United 
States Court of Appeals for the appropriate circuit by August 5, 2002. 
Filing a petition for reconsideration by the Administrator of this 
proposed rule does not affect the finality of this rule for the 
purposes of judicial review nor does it extend the time within which a 
petition for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 80

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

    Dated: May 23, 2002.
Christine Todd Whitman,
Administrator.
[FR Doc. 02-13977 Filed 6-3-02; 8:45 am]
BILLING CODE 6560-50-P