[Federal Register Volume 84, Number 26 (Thursday, February 7, 2019)]
[Rules and Regulations]
[Pages 2453-2456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01320]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2018-0114; FRL-9988-86-OAR]
RIN 2060-AU32


Regulation of Fuels and Fuel Additives: Removal of the 
Reformulated Gasoline Program From the Northern Kentucky Portion of the 
Cincinnati-Hamilton Ozone Maintenance Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: In this final action, EPA is amending its reformulated 
gasoline regulations to reflect that Boone, Campbell, and Kenton 
counties in Kentucky (the Northern Kentucky Area), which are part of 
the Cincinnati-Hamilton, Ohio-Kentucky-Indiana ozone area, are no 
longer federal reformulated gasoline (RFG) covered areas as of July 1, 
2018. As described in a separate document published on May 16, 2018, 
pursuant to EPA's regulations, EPA approved an April 18, 2017 petition 
from the state of Kentucky to opt-out of the federal RFG program and 
removed the requirement to sell federal RFG in the Northern Kentucky 
Area as of July 1, 2018. This effective date applies to retailers, 
wholesale purchaser-consumers, refiners, importers, and distributors. 
This rulemaking merely conforms the list of RFG covered areas in the 
regulations to reflect the effective date of the opt-out for the 
Northern Kentucky Area.

DATES: This final rule is effective on February 7, 2019.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of 
Transportation and Air Quality, U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue, Washington, DC 20460; telephone number: (202) 
343-9256; email address: [email protected] or Rudy Kapichak, 
Office of Transportation and Air Quality, U.S. Environmental Protection 
Agency, 2000 Traverwood, Ann Arbor, MI 48105; telephone number: 734-
214-4574; email address: [email protected].

SUPPLEMENTARY INFORMATION: 
    The contents of this preamble are listed in the following outline:

I. General Information
II. Background
III. Action
IV. Public Participation
V. Statutory and Executive Order Reviews
VI. Legal Authority and Statutory Provisions

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this final action are fuel 
producers and distributors who do business in the Northern Kentucky 
Area.

------------------------------------------------------------------------
                                                                NAICS 1
          Examples of potentially regulated entities             codes
------------------------------------------------------------------------
Petroleum refineries.........................................     324110
                                                                  424710
Gasoline Marketers and Distributors..........................     424720
Gasoline Retail Stations.....................................     447110
Gasoline Transporters........................................     484220
                                                                  484230
------------------------------------------------------------------------
\1\ North American Industry Classification System.

    The above table is not intended to be exhaustive, but rather 
provides a guide for readers regarding entities likely to be regulated 
by this action. The table lists the types of entities of which EPA is 
aware that potentially could be affected by this final action. Other 
types of entities not listed on the table could also be affected. To 
determine whether your organization could be affected by this final 
action, you should carefully examine the regulations in 40 CFR part 80, 
subpart D--Reformulated Gasoline. If you have questions regarding the 
applicability of this action to a particular entity, see the FOR 
FURTHER INFORMATION CONTACT section of this preamble.

B. How can I get copies of this document and other related information?

    EPA has established a docket for this action under Docket ID No. 
EPA-HQ-OAR-2018-0114. All documents in the docket are listed on the 
www.regulations.gov website. Although listed in the index, some 
information may not be publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available 
electronically through www.regulations.gov.

II. Background

A. RFG Opt-Out Procedures

    The reformulated gasoline (RFG) opt-out regulations (40 CFR 80.72--
Procedures for opting out of the covered areas) provide the process and 
criteria for a reasonable transition out of the federal RFG program if 
a state decides to opt-out.\2\ These opt-out regulations provide that 
the governor of the state must submit a petition to the Administrator 
requesting to opt-out of the federal RFG program. The petition must 
include specific information on how, if at all, the state has relied on 
RFG in a proposed or approved state implementation plan (SIP) or plan 
revision and, if RFG is relied upon, how the SIP will be revised to 
reflect the state's opt-out from RFG. The opt-out regulations also 
provide that EPA will notify the state in writing of the Agency's 
action on the petition and the date the opt-out becomes effective 
(i.e., the date RFG is no longer required in the affected area) when 
the petition is approved. The opt-out regulations also provide that EPA 
will publish a Federal Register document announcing the approval of any 
opt-out petition and the effective date of such opt-out. If a SIP 
revision is required, the effective date of EPA's approval of the opt-
out can be no less than 90 days from the effective date of EPA's 
approval of the revision to the SIP that removes RFG as a control 
measure. See 40 CFR 80.72(c)(7).
---------------------------------------------------------------------------

    \2\ Pursuant to authority under CAA sections 211(c) and (k) and 
301(a), EPA promulgated regulations at 40 CFR 80.72 to provide 
criteria and general procedures for states to opt-out of the RFG 
program where the state had previously voluntarily opted into the 
program. The regulations were initially adopted on July 8, 1996 (61 
FR 35673) (the RFG ``Opt-out Rule''); and were revised on October 
20, 1997 (62 FR 54552).
---------------------------------------------------------------------------

B. Kentucky Opt-In and Opt-Out of RFG for the Northern Kentucky Area

    In 1995, Kentucky voluntarily opted Boone, Campbell, and Kenton 
Counties (the Northern Kentucky Area), into the federal RFG program. 
Kentucky also opted its portion of the Louisville ozone area (Jefferson 
County and parts of Bullitt and Oldham Counties) into the federal RFG 
program; however, this action does not affect the use of RFG in the 
Kentucky portion of the Louisville ozone area. A current listing of the 
RFG covered areas and a summary of RFG requirements can be found at 40 
CFR 80.70 and on EPA's website at: https://www.epa.gov/gasoline-standards/reformulated-gasoline.
    On April 18, 2017, Kentucky submitted a petition to the EPA 
Administrator requesting to opt-out from the federal RFG program for 
the Northern Kentucky Area.\3\ In order to

[[Page 2454]]

fulfill the requirements of the RFG opt-out regulations and to support 
its initial request, on September 13, 2017, Kentucky submitted a 
revision to its maintenance plan for the Northern Kentucky Area to 
remove the emissions reductions associated with the use of RFG in this 
area and to demonstrate that the RFG opt-out would not interfere with 
the area's ability to attain or maintain the 2008 ozone National 
Ambient Air Quality Standard (NAAQS) and any other NAAQS as required by 
Clean Air Act (CAA) section 110(l). (See 40 CFR 80.72(b)). EPA 
published a proposed approval of the SIP revision on February 14, 2018 
(83 FR 6496) and a final approval of the SIP revision on April 2, 2018 
(83 FR 13872). The final approval of the maintenance plan revision was 
effective upon publication, on April 2, 2018.
---------------------------------------------------------------------------

    \3\ The Secretary of Kentucky's Energy and Environment Cabinet 
submitted the opt-out petition on behalf of the Commonwealth of 
Kentucky. A copy of the opt-out petition is included in the docket.
---------------------------------------------------------------------------

    By letter dated April 30, 2018, EPA informed Kentucky of the grant 
of its petition as required by the RFG Opt-Out Rule. EPA also indicated 
that the effective date of the RFG opt-out for the Northern Kentucky 
Area would be July 1, 2018, which is 90 days after the effective date 
of EPA's approval of the maintenance plan revision and CAA section 
110(l) analysis, as required by 40 CFR 80.72(c)(7). On May 16, 2018, 
EPA published the Federal Register document required by the RFG Opt-Out 
Rule that informed the public of the July 1, 2018 effective date and 
indicated that EPA would publish a final rule later to remove the 
Northern Kentucky Area from the list of RFG covered areas in 40 CFR 
80.70 after the effective date of the opt-out (83 FR 22595). The July 
1, 2018 opt-out effective date is the date for the removal of the 
prohibition on the sale of conventional gasoline in the Northern 
Kentucky Area and applies to retailers, wholesale purchasers-consumers, 
refiners, importers, and distributors of gasoline.

III. Action

    In this rule, EPA is amending 40 CFR 80.70(j) to reflect that the 
Northern Kentucky Area (Boone, Campbell, and Kenton counties) is no 
longer a federal RFG covered area. This final rule merely conforms the 
applicable regulations with EPA's prior approval of the Kentucky 
petition.

IV. Public Participation

    EPA is issuing this final action without prior notice and comment. 
The rulemaking procedures provided in CAA section 307(d) do not apply 
when the Agency for good cause finds that notice-and-comment procedures 
are impracticable, unnecessary, or contrary to the public interest 
pursuant to section 553(b)(B) of the Administrative Procedure Act, 5 
U.S.C. 553(b)(B). This is a ministerial action that amends 40 CFR 80.70 
to reflect the prior EPA approval of Kentucky's opt-out petition, which 
was based on criteria in EPA regulations for opting out of the federal 
RFG program. In the RFG opt-out regulations, EPA established a petition 
process that would address, on a case-by-case basis, future individual 
state requests to opt-out of the RFG program. The regulations 
established clear and objective criteria for EPA to apply that include 
criteria for when a state's petition is complete and the appropriate 
transition time for opt-out of the RFG program. Further, at the time of 
promulgation of those regulations, EPA had explained that the 
application of these regulatory criteria on a case-by-case basis to 
individual opt-out requests would not require notice-and-comment 
rulemaking, either under CAA section 307(d) or the Administrative 
Procedure Act.
    Here, and as explained in the approval action, EPA is simply 
revising the list of RFG covered areas in 40 CFR 80.70 to conform with 
EPA's prior approval of Kentucky's request, which was effective on July 
1, 2018 (83 FR 22595). That approval was a separate action, which was 
based on criteria in EPA's regulations for opting out of the federal 
RFG program and is not the subject of this rule. For these reasons, EPA 
finds that notice-and-comment procedures under CAA section 307(d)(1) 
are unnecessary.
    This final rule is effective immediately upon publication. Section 
553(d)(1) of the Administrative Procedure Act, 5 U.S.C. 553(d)(1), 
provides that final rules shall not become effective until 30 days 
after publication in the Federal Register ``except . . . a substantive 
rule which grants or recognizes an exemption or relieves a 
restriction.'' The purpose of this provision is to ``give affected 
parties a reasonable time to adjust their behavior before the final 
rule takes effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 
620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 
F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, 
when the agency finalizes an exemption or relieves a restriction, 
affected parties do not need a reasonable time to adjust because the 
affect is not adverse. EPA has determined that the finalized rule does 
not change any regulatory obligations and merely revises the list of 
covered areas in 40 CFR 80.70 to reflect EPA's prior action on May 16, 
2018 which relieved a restriction (the requirement of the federal RFG 
program) in the Northern Kentucky Area. For these reasons, this rule 
will be effective immediately upon publication.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order

13563: Improving Regulation and Regulatory Review
    This action is not a significant regulatory action and therefore 
was not submitted to the Office of Management and Budget (OMB) for 
review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. This final rule and EPA's earlier approval of Kentucky's 
request to opt the three counties in the Northern Kentucky Area out of 
the federal RFG program provide meaningful burden reduction because it 
removes the requirements of the federal RFG program for gasoline sold 
in the Northern Kentucky Area and, as a result, fuel suppliers will no 
longer be required to sell gasoline that meets the federal RFG 
standards. Removing the federal RFG requirements will also be 
beneficial because this action can improve the fungibility of gasoline 
sold in the State of Kentucky by allowing gasoline sold in the Northern 
Kentucky Area to be identical to fuel sold in most of Kentucky.

C. Paperwork Reduction Act (PRA)

    This action does not impose any information collection burden under 
the PRA, because it does not contain any information collection 
activities.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. The small entities subject to the 
requirements of this action are refiners, importers or blenders of 
gasoline that choose to produce or import gasoline that meets the 
federal RFG program requirements

[[Page 2455]]

for sale in the Northern Kentucky Area, and gasoline distributers and 
retail stations in the Northern Kentucky Area. EPA previously approved 
Kentucky's request to opt the three counties in the Northern Kentucky 
Area out of the federal RFG program remove the federal RFG requirements 
for gasoline sold in the Northern Kentucky Area as of July 1, 2018. 
This action merely amends the regulation at 40 CFR 80.70 to reflect the 
Northern Kentucky Area is no longer a covered area. This action does 
not impose any requirements or create impacts on small entities beyond 
those, if any, already required by or resulting from the CAA section 
211(k) federal RFG program. We have therefore concluded that this 
action will have no net regulatory burden for all directly regulated 
small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This final rule does not contain an unfunded mandate of $100 
million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. EPA previously 
approved Kentucky's request to opt the three counties in the Northern 
Kentucky Area out of the federal RFG program removed a requirement for 
the sale of federal RFG in the area as provided for in CAA section 
211(k) and EPA's regulations at 40 CFR 80.72. This action merely amends 
the regulation at 40 CFR 80.70 to reflect the Northern Kentucky Area is 
no longer a covered area.

F. Executive Order 13132: Federalism

    This action 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.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175. EPA's earlier approval of Kentucky's request to 
opt the three counties in the Northern Kentucky Area out of the federal 
RFG program affected only those refiners, importers or blenders of 
gasoline that chose to produce or import gasoline that met federal RFG 
program requirements for sale in the Northern Kentucky Area and 
gasoline distributers and retail stations in the Area. This action 
merely amends the regulation at 40 CFR 80.70 to reflect the Northern 
Kentucky Area is no longer a covered area. Thus, Executive Order 13175 
does not apply to this action.

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

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk. EPA has no reason to believe that this action will 
disproportionately affect children since Kentucky has provided evidence 
that opt-out from the federal RFG gasoline program will not interfere 
with its attainment of the ozone NAAQS, or any other applicable CAA 
requirement. By separate action, EPA has approved Kentucky's non-
interference demonstration regarding its maintenance plan for the 2008 
ozone NAAQS, and that Kentucky's opt-out from the federal RFG gasoline 
program in the Northern Kentucky Area will not interfere with any other 
NAAQS or CAA requirement.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations because it does not affect the applicable ozone 
NAAQS which establish the level of protection provided to human health 
or the environment. EPA previously approved Kentucky's request to opt 
the three counties in the Northern Kentucky Area out of the federal RFG 
program removes the federal RFG gasoline program requirements for the 
Northern Kentucky Area. EPA has concluded that the federal RFG opt-out 
will not cause a measurable increase in ozone concentrations that would 
result in a violation of any ozone NAAQS including the 2008 ozone NAAQS 
and the more stringent 2015 ozone NAAQS. Therefore, disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations are not an anticipated result. The results of 
this evaluation are contained in EPA's proposed and final rules for 
Kentucky's non-interference demonstration. A copy of Kentucky's April 
12, 2017 letter requesting that EPA relax the gasoline RVP standard, 
and Kentucky's September 13, 2017 letter that included additional 
technical analysis demonstrating that the opt-out from the federal RFG 
program would not interfere with continued maintenance of the 2008 
ozone NAAQS in the Northern Kentucky Area, or with any other applicable 
CAA requirement, has been placed in the public docket for this action. 
This action merely amends the regulation at 40 CFR 80.70 to reflect the 
Northern Kentucky Area is no longer a covered area.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller of the 
United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

VI. Legal Authority and Statutory Provisions

    The statutory authority for this action is granted to EPA by 
sections 211(k) and 301(a) of the Clean Air Act, as amended; 42 U.S.C. 
7545(h) and 7601(a).

List of Subjects in 40 CFR Part 80

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Fuel additives, Gasoline, Motor vehicle and 
motor vehicle engines, Motor vehicle pollution, Penalties, Reporting 
and recordkeeping requirements.

    Dated: December 21, 2018.
Andrew R. Wheeler,
Acting Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part 
80 as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

0
1. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).


[[Page 2456]]



0
2. Section 80.70 is amended by revising paragraph (j)(3) to read as 
follows:


Sec.  80.70  Covered areas.

* * * * *
    (j) * * *
    (3) Jefferson County, Kentucky;
* * * * *
[FR Doc. 2019-01320 Filed 2-6-19; 8:45 am]
BILLING CODE 6560-50-P