[Federal Register Volume 87, Number 165 (Friday, August 26, 2022)]
[Rules and Regulations]
[Pages 52482-52484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18320]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 1090

[EPA-HQ-OAR-2022-0398; FRL 9847-01-OAR]
RIN 2060-AV75


Removal of the Reformulated Gasoline Program From the Southern 
Maine Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this final action, the Environmental Protection Agency 
(EPA) is amending its reformulated gasoline (RFG) regulations to 
reflect that York, Cumberland, Androscoggin, Sagadahoc, Kennebec, Knox 
and Lincoln counties in Maine (the Southern Maine Area) are no longer 
Federal RFG covered areas as of September 30, 2021. EPA previously 
approved a petition from Maine to opt out of the Federal RFG program 
and removed the requirement to sell Federal RFG in the Southern Maine 
Area as of September 30, 2021. This effective date applied to 
retailers, wholesale purchaser-consumers, refiners, importers, and 
distributors. This rule merely updates the list of RFG-covered areas in 
the Federal regulations to reflect the effective date of the opt-out 
for the Southern Maine Area.

DATES: This final rule is effective August 26, 2022.

FOR FURTHER INFORMATION CONTACT: Mark Coryell, Office of Transportation 
and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood, 
Ann Arbor, MI 48105; email address: [email protected] or Rudy 
Kapichak, Office of Transportation and Air Quality, U.S. Environmental 
Protection Agency, 2000 Traverwood, Ann Arbor, MI 48105; email address: 
[email protected].

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

I. General Information
II. Action
III. Background
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 Southern Maine Area.
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    \1\ North American Industry Classification System.

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                                                             NAICS \1\
       Examples of potentially  regulated entities             codes
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Petroleum refineries....................................          324110
                                                                  424710
Gasoline Marketers and Distributors.....................          424720
Gasoline Retail Stations................................          447110
Gasoline Transporters...................................          484220
                                                                  484230
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    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 
1090. 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-2022-0398. 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. Action

    In this rule, EPA is amending 40 CFR 1090.285(d) to reflect that 
the Southern Maine Area (York, Cumberland, Androscoggin, Sagadahoc, 
Kennebec, Knox and Lincoln counties) \2\ is no longer a Federal RFG 
covered area. This final rule merely conforms the applicable 
regulations with EPA's prior approval of the Maine petition.
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    \2\ The Southern Maine Area is part of the Portland and Midcoast 
ozone maintenance areas for the 1997 ozone national ambient air 
quality standard (NAAQS).
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III. Background

    On July 23, 2013, the Governor of Maine requested that EPA approve 
a request to voluntarily opt York, Cumberland, Androscoggin, Sagadahoc, 
Kennebec, Knox and Lincoln counties (the Southern Maine Area) into the 
Federal RFG program with an effective date of May 1, 2014. EPA approved 
that request on February 6, 2015 (80 FR 6658) with a commencement date 
for the RFG program of May 1, 2015.
    On August 20, 2020, Maine submitted a petition to the EPA 
Administrator requesting to opt-out from the Federal RFG program for 
the Southern Maine Area.\3\ In order to fulfill the requirements of the 
RFG opt-out regulations \4\ and to support its initial request, on 
August 20, 2020, Maine submitted revisions to its maintenance plans for 
the Portland and Midcoast ozone maintenance areas for the 1997 ozone 
national ambient air quality standard (NAAQS). The revisions to the 
maintenance plans removed the emissions reductions associated with the 
use of RFG in these areas and demonstrated that the RFG opt-out would 
not interfere with the areas' ability to attain or maintain the 1997, 
2008 and 2015 ozone NAAQS and any other NAAQS as required by CAA 
section 110(l). (See 40 CFR 1090.290(d)(1).) EPA published a proposed 
approval of the SIP revision on March 25, 2021 (86 FR 15844) and a 
final approval of the SIP revision on June 2, 2021 (86 FR 29520), with 
an effective date of July 2, 2021.
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    \3\ The Commissioner of Maine's Department of Environmental 
Protection submitted the opt-out petition on behalf of the State of 
Maine. A copy of the petition is included in the docket.
    \4\ The RFG opt-out regulations (40 CFR 1090.290(b) and (d)--
Opting out of RFG and Procedure for opting out of RFG, respectively) 
provide the process and criteria for a reasonable transition out of 
the Federal RFG program if a state decides to opt-out. Pursuant to 
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). On December 4, 
2020, these regulations were redrafted into 40 CFR 1090.290 as a 
part of EPA's Fuels Streamlining Rule (85 FR 78412).
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    By letter dated July 12, 2021, EPA informed Maine of the grant of 
its petition as required by the RFG opt-out regulations. (See 40 CFR 
1090.290(d)(2)(ii).) EPA also indicated that the effective date of the 
RFG opt-out for the Southern Maine Area would be September 30, 2021, 
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 1090(d)(2)(ii). The September 30, 2021, opt-out effective 
date is the date for the removal of the prohibition on the sale of 
conventional gasoline in the Southern Maine Area and applied to 
retailers, wholesale purchasers-

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consumers, refiners, importers, and distributors of gasoline.
    On July 16, 2021, EPA published the Federal Register document 
required by 40 CFR 1090.290(d)(4) that informed the public of the 
September 30, 2021, effective date and indicated that EPA would publish 
a final rule later to remove the Southern Maine Area from the list of 
RFG covered areas in 40 CFR 1090.285 after the effective date of the 
opt-out.

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 
1090.285(d) to reflect the prior EPA approval of Maine's opt-out 
petition, which was based on criteria in EPA regulations for opting out 
of the Federal RFG program. EPA's RFG opt-out regulations provide a 
petition process that addresses, on a case-by-case basis, future 
individual state requests to opt out of the RFG program. (See 40 CFR 
1090.290(d)(1).). 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 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. (See 61 FR 35673, July 8, 
1996; and 62 FR 54552, October 20, 1997.)
    Here, EPA is simply revising the list of RFG covered areas in 40 
CFR 1090.285(d) to conform with EPA's prior approval of Maine's 
request, which was effective on September 30, 2021. 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 1090.285(d) to reflect EPA's prior action on 
July 16, 2021, which relieved a restriction (the requirement of the 
Federal RFG program) in the Southern Maine Area. For these reasons, 
this rule will be effective immediately upon publication.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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. 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.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule is not subject to notice and comment requirements because the 
Agency has invoked the APA ``good cause'' exemption under 5 U.S.C. 
553(b).

D. 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. This action and the 
earlier approval of Maine's request to opt the seven counties in the 
Southern Maine 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 1090.290(b) and (d).

E. 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.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175. This final rule and earlier approval of Maine's 
request to opt the seven counties in the Southern Maine Area out of the 
Federal RFG program affect 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 Southern Maine Area and 
gasoline distributers and retail stations in the Area. Thus, Executive 
Order 13175 does not apply to this action.

G. 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 Maine 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.

H. 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

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significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rule does not involve technical standards.

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

    EPA believes that this action does not have potential 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations and/or 
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, 
February 16, 1994), because it does not affect the applicable ozone 
NAAQS which establish the level of protection provided to human health 
or the environment. This rule and the earlier approval of Maine's 
request to opt the seven counties in the Southern Maine Area out of the 
Federal RFG program removes the Federal RFG gasoline program 
requirements for the Southern Maine 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 1997, 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 Maine's non-interference 
demonstration. A copy of EPA's approval on July 2, 2021, of Maine's SIP 
revision has been placed in the public docket for this action.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA 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 comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). The EPA has made a good cause finding for this rule as 
discussed in section IV, including the basis for that finding.

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 1090

    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.

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part 
1090 as follows:

PART 1090--REGULATION OF FUELS, FUEL ADDITIVES, AND REGULATED 
BLENDSTOCKS

0
1. The authority citation for part 1090 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7521, 7522-7525, 7541, 7542, 7543, 
7545, 7547, 7550, and 7601.

Subpart C--Gasoline Standards

0
2. Section 1090.285 is amended by revising paragraph (d) to read as 
follows:


Sec.  1090.285  RFG covered areas.

* * * * *
    (d) RFG covered areas located in the ozone transport region 
established by 42 U.S.C. 7511c(a) that a state has requested to opt 
into RFG under 42 U.S.C. 7545(k)(6)(B)(i)(I).

[FR Doc. 2022-18320 Filed 8-25-22; 8:45 am]
BILLING CODE 6560-50-P