Air pollution control; new motor vehicles and engines: Tier 2/gasoline sulphur regulations,
[Federal Register: June 12, 2002 (Volume 67, Number 113)]
[Proposed Rules]
[Page 40256-40260]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jn02-27]
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
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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 manners.mary@epa.gov.
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 aSIC Codes
entities
b--------------------------------------------- Industry...................................... 324110
2911 Petroleum Refiners. Industry...................................... 422710
5171 Gasoline Marketers and Distributors. 422720
5172 Industry...................................... 484220
4212 Gasoline Carriers. 484230
4213
aNorth American Industry Classification System (NAICS). bStandard 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
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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
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this proposed rule is not a ``significant regulatory action.''
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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(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. 02-13803Filed6-11-02; 8:45 am]
BILLING CODE 6560-50-P
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