[Federal Register Volume 67, Number 113 (Wednesday, June 12, 2002)]
[Proposed Rules]
[Pages 40256-40260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13803]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[AMS-FRL-7222-1]
RIN 2060-AJ71


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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

SUMMARY: EPA is proposing to clarify, correct, amend, and revise 
certain provisions of the Tier 2/Gasoline Sulfur regulations (February 
10, 2000), hereinafter referred to as the Tier 2 rule. First, today's 
action would correct typographical errors and would make other minor 
revisions to clarify the regulations governing compliance with the Tier 
2 rule. Second, it would modify the effective date of the regulatory 
butane test method for determining the sulfur content of butane, a 
gasoline blendstock. Third, today's rule would modify the Geographic 
Phase-in Area (GPA) program by replacing the variable standard for GPA 
gasoline with a flat average standard of 150 ppm sulfur. Fourth, it 
would allow an approved small refiner, under limited

[[Page 40257]]

circumstances, to seek a temporary adjustment to its interim small 
refiner per-gallon cap standard. Finally, it would amend certain 
provisions of the small refiner and Averaging, Banking, and Trading 
(ABT) programs as well as compliance and enforcement provisions to 
assist regulated entities with program implementation and compliance.

DATES: Written comments or requests for a public hearing must be 
received by July 12, 2002.

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.
    Docket: 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 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 rule (65 FR 6698, February 10, 
2000). However, in the ``Rules and Regulations'' section of today's 
Federal Register, we are approving these corrections, amendments, and 
revisions as a direct final rule without a prior proposal because we 
view this as a noncontroversial action and anticipate no adverse 
comment. We have explained our reasons for this approval in the 
preamble to the direct final rule. This proposal incorporates by 
reference all of the reasoning, explanation, and regulatory text from 
the direct final rule. 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 September 10, 2002, unless we receive adverse comment or a request 
for a public hearing by July 12, 2002. If we receive no adverse 
comment, we will not take further action on this proposed rule. If we 
receive 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 may address all adverse 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

    This proposal could affect you if you produce, distribute, or sell 
gasoline.
    The table below gives some examples of entities that may have to 
comply with the regulations. However, since these are only examples, 
you should carefully examine these and other existing regulations in 40 
CFR part 80. If you have any questions, please call the person listed 
in the FOR FURTHER INFORMATION CONTACT section above.

----------------------------------------------------------------------------------------------------------------
                                                   NAICS                     Examples of potentially regulated
                   Category                       Codes a     SIC  Codes                 entities
------------------------------------------------------------------b---------------------------------------------
Industry......................................       324110         2911  Petroleum Refiners.
Industry......................................       422710         5171  Gasoline Marketers and Distributors.
                                                     422720         5172
Industry......................................       484220         4212  Gasoline Carriers.
                                                     484230        4213
----------------------------------------------------------------------------------------------------------------
a North American Industry Classification System (NAICS).
b Standard Industrial Classification (SIC) system code.

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 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.

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:
     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

[[Page 40258]]

this proposed rule is not a ``significant regulatory action.''

B. 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 proposed rule on 
small entities, small entity is defined as: (1) A small business 
refiner that had no more than 1500 employees corporate-wide, based on 
the average number of employees for all pay periods from January 1, 
1998 to January 1, 1999; and a corporate crude capacity less than or 
equal to 155,000 barrels per calendar day for 1999 \1\; (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.
---------------------------------------------------------------------------

    \1\ This definition of a small business refiner was established 
under the Tier 2 Rule. See Sec. 80.225.
---------------------------------------------------------------------------

    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. This 
proposed rule will not have any adverse economic impact on small 
entities. Today's rule corrects, amends, and revises certain provisions 
of the Tier 2 rule (65 FR 6698, February 10, 2000), regulated entities 
will find it easier to comply with the requirements of the Tier 2 rule. 
More specifically, today's action corrects typographical errors and 
makes other minor revisions to clarify the regulations governing 
compliance with the Tier 2 rule. Second, it modifies the effective date 
of the regulatory butane test method for determining the sulfur content 
of butane, a gasoline blendstock. Third, today's rule modifies the GPA 
program by replacing the variable standard for GPA gasoline with a flat 
average standard of 150 ppm sulfur. Fourth, it allows an approved small 
refiner, under limited circumstances, to seek a temporary adjustment to 
its interim small refiner per-gallon cap standard. Finally, it amends 
certain provisions of the small refiner and ABT programs as well as 
compliance and enforcement provisions to assist regulated entities with 
program implementation and compliance. We continue to be interested in 
the potential impacts of the proposed rule on small entities and 
welcome comments on issues related to such impacts.

C. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 2073.01) and a copy may be obtained from Sandy Farmer, 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460 or by calling 
(202) 260-2740. The information requirements are not effective until 
OMB approves them.
    Certain small refiners may provide this requested information in 
order to for EPA to consider granting specific relief relating to the 
gasoline sulfur requirements. This relief would be in the form of an 
adjustment to one of the gasoline sulfur standards that apply to small 
refiners, the per-gallon cap sulfur standard. The information will 
allow EPA to assess the need for such relief and to grant the 
appropriate relief based on the small refiner's situation. This 
information will be provided voluntarily by letter and will be treated 
by EPA as Confidential Business Information.
    EPA estimates that between one and five small refiners may request 
an adjustment in their per-gallon cap sulfur standards, and that a one-
time effort of about two hours will be required to prepare the 
application letter. We estimate the total industry-wide burden to be 
less than $1000. 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 
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.

D. 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 proposed rule contains no federal mandates for state, local, 
or tribal governments as defined by the provisions of Title II of the 
UMRA. The proposed rule imposes no enforceable duties on any of these 
governmental entities. Nothing in the proposal will significantly or 
uniquely affect small governments.

[[Page 40259]]

    We have determined that this proposed 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 correcting, amending, and revising certain provisions 
of the Tier 2 rule. Therefore, the requirements of the UMRA do not 
apply to this action.

E. 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 proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's rule would not uniquely affect the communities of American 
Indian tribal governments since the motor vehicle fuel and other 
related requirements for private businesses in today's rule have 
national applicability. Furthermore, today's proposed rule does 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 rule for tribes under the original 
provisions of the GPA program; under today's action, gasoline sold in 
certain tribal lands would be subject to a flat average standard of 150 
ppm sulfur. Thus, Executive Order 13175 does not apply to this proposed 
rule.

F. 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 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 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 clarifies and 
corrects certain provisions of an earlier rule that adopted national 
standards to control gasoline sulfur. 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.

G. 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 Fed. Reg. 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

H. 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 proposed rule references technical standards adopted by us 
through previous rulemakings. No new technical standards are 
established in today's proposed rule. The standards referenced in 
today's proposed rule 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.

I. 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 Executive 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 proposed 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 proposed rule does not concern 
an environmental health or safety risk that we have reason to believe 
may have a disproportionate effect on children.

Statutory Provisions and Legal Authority

    Statutory authority for the fuel controls set in today's proposed 
rule comes from section 211(c) of the CAA

[[Page 40260]]

(42 U.S.C. 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 proposed rule, including the record keeping requirements, comes 
from sections 114(a) and 301(a) of the CAA.

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. 02-13803 Filed 6-11-02; 8:45 am]
BILLING CODE 6560-50-P