[Federal Register Volume 67, Number 106 (Monday, June 3, 2002)]
[Rules and Regulations]
[Pages 38338-38340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13807]
[[Page 38337]]
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Part IV
Environmental Protection Agency
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40 CFR Part 80
Control of Air Pollution From New Motor Vehicles; Amendment to the Tier
2/Gasoline Sulfur Regulations; Final Rule
Federal Register / Vol. 67, No. 106 / Monday, June 3, 2002 / Rules
and Regulations
[[Page 38338]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[AMS-FRL-7221-5]
RIN 2060-AI69
Control of Air Pollution From New Motor Vehicles; Amendment to
the Tier 2/Gasoline Sulfur Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Due to adverse comments, EPA is removing one amendment
included in the direct final rule published in the Federal Register on
April 13, 2001, related to the Tier 2/Gasoline Sulfur program,
hereinafter referred to as the Tier 2 rule (February 10, 2000). EPA
published both the direct final rule and a concurrent notice of
proposed rulemaking to correct, amend, and revise certain provisions of
the Tier 2 rule for purposes of assisting regulated entities with
program implementation and compliance. The only amendment removed by
today's action is the revision to the provision concerning the
definition of ``small refiner'' for those refiners that acquire and/or
reactivate a refinery that was shutdown or was non-operational between
January 1, 1998, and January 1, 1999. The language regarding this
provision contained in the Tier 2 rule is reinstated. EPA plans no
further action on the concurrent notice of proposed rulemaking.
EFFECTIVE DATE: July 12, 2001.
ADDRESSES: Materials relevant to this rulemaking are contained in
Public Docket No. A-97-10 at the following address and are available
for review from 8 a.m. to 5:30 p.m., Monday through Friday, except on
government holidays: U.S. Environmental Protection Agency (EPA), Air
Docket (6102), Room M-1500, 401 M Street, SW., Washington, DC 20460.
You can contact 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: On April 13, 2001, we issued a direct final
rule (66 FR 19296) which included 27 amendments to correct, amend, and
revise certain provisions of the Tier 2 rule (February 10, 2000, 65 FR
6698) for purposes of assisting regulated entities with program
implementation and compliance. In that direct final rule, we stated,
``If EPA receives 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 comments. We will address all public
comments in a subsequent final rule based on the proposed rule.'' We
also issued a notice of proposed rulemaking (66 FR 19311), in which the
Agency proposed and solicited public comment on the same 27 amendments.
We received adverse comments on one amendment in this rulemaking: the
amendment to 40 CFR 80.225(d) ([sect] 80.225(d)).
As a result of these adverse comments, we are removing the
amendment regarding [sect] 80.225(d) from the direct final rule. The
language contained in [sect] 80.225(d) of the prior rule, published on
February 10, 2000, is reinstated as it existed prior to the April 13,
2001 direct final rule. In addition, as explained below, we are taking
no further action regarding the concurrent notice of proposed
rulemaking published on April 13, 2001. The other 26 amendments that
did not receive adverse comment became effective on July 12, 2001, as
provided in the April 13, 2001 direct final rule.
The revision of [sect] 80.225(d) was included in the direct final
rule to clarify that the employee/crude oil capacity criteria for small
refiner status applies to parties seeking small refiner status under
[sect] 80.225(d). See 66 FR 19296. Although we believe these criteria
did apply under the small refiner provisions of the Tier 2 rule as
published on February 10, 2000 (pre-existing provisions), application
of the employee/crude oil capacity criteria to refiners applying for
small refiner status under [sect] 80.225(d) was not explicitly
expressed in the pre-existing provision of [sect] 80.225(d). As a
result, we added language to [sect] 80.225(d) to make this
clarification. However, in amending [sect] 80.225(d) to add this
clarifying language, we also reworded the pre-existing language of a
separate sentence of this paragraph which resulted in an unintended
substantive change to the provisions of [sect] 80.225(d). Specifically,
the amendment would have unintentionally limited the scope of
eligibility for small refiners applying under [sect] 80.225(d) only to
refineries that were shutdown or non-operational between January 1,
1998 and January 1, 1999, rather than also to refineries that were
acquired after January 1, 1999. The adverse comments we received on the
amendment to [sect] 80.225(d) relate only to this unintended
substantive change.
As stated above, the pre-existing language in [sect] 80.225(d)
regarding the reactivation of refineries that were shutdown or non-
operational between January 1, 1998 and January 1, 1999, and refineries
that were acquired after January 1, 1999, is the regulatory language we
are reinstating at this time. We are removing the revision to [sect]
80.225(d) without providing prior notice and comment because we find
good cause within the meaning of 5 U.S.C. 553(b). Notice and comment
would be impracticable, as we need to remove this revision quickly
because it went into effect July 12, 2001.
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 final rule 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.
I. 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:
[sbull] Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the
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economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities;
[sbull] Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
[sbull] Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or,
[sbull] 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 this final rule is not a ``significant regulatory action.''
B. Regulatory Flexibility
Today's final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. This rule
is not subject to notice and comment requirements under the APA or any
other statute because we find good cause within the meaning of 5 U.S.C.
553(b).
Although this final rule is not subject to the RFA, we nonetheless
have assessed the potential of this rule to adversely impact small
entities subject to the rule. This rule will have no adverse impact on
any small entities subject to the rule. As stated above, today's action
removes the amendment to [sect] 80.225(d) concerning the definition of
``small refiner'' for those refiners that acquire and/or reactivate a
refinery that was shutdown or was non-operational between January 1,
1998, and January 1, 1999. Specifically, the amendment to [sect]
80.225(d) would have unintentionally limited the scope of eligibility
for small refiners applying under [sect] 80.225(d) only to refineries
that were shutdown or non-operational between January 1, 1998 and
January 1, 1999, rather than also to refineries that were acquired
after January 1, 1999. The language regarding this provision that was
contained in the Tier 2 rule published on February 10, 2000 (65 FR
6698) is reinstated.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq., and
implementing regulations, 5 CFR part 1320, do not apply to this action
as it does not involve the collection of information as defined
therein.
D. Intergovernmental Relations
1. 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 rule contains no federal mandates for state, local, or tribal
governments as defined by the provisions of Title II of the UMRA. The
rule imposes no enforceable duties on any of these governmental
entities. Nothing in the rule will significantly or uniquely affect
small governments.
We have determined that this 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 removing the amendment regarding 40 CFR 80.225(d) from
the direct final rule published on April 13, 2001 and reinstating the
language contained in 40 CFR 80.225(d) of the prior rule, published on
February 10, 2000 (65 FR 6698). Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
2. 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 final rule does not have
tribal implications, as specified in Executive Order 13175. This final
rule removes one amendment included in the direct final rule published
in the Federal Register on April 13, 2001, related to the Tier 2/
Gasoline Sulfur program and reinstates the language contained in 40 CFR
80.225(d) of the prior rule, published on February 10, 2000 (65 FR
6698). Thus, Executive Order 13175 does not apply to this rule.
3. 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
consults 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
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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 final 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. 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. Although section 6 of Executive Order 13132 does not apply
to this rule, we did consult with State and local officials in
developing this rule.
E. 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 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
F. 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 rule references technical standards adopted by us through
previous rulemakings. No new technical standards are established in
today's rule.
G. 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 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 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 rule does not concern an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children.
H. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 808 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 public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefor, and established an effective date of July 12, 2001.
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(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.
For the reasons set forth in the preamble, 40 CFR part 80 is
amended as follows:
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
1. The authority citation for part 80 continues to read as follows:
Authority: 42 U.S.C. 7414, 7545, and 7601(a).
2. 40 CFR 80.225(d) is revised to read as follows:
[sect] 80.225 What is the definition of a small refiner?
* * * * *
(d) Notwithstanding the definition in paragraph (a) of this
section, refiners who acquire a refinery after January 1, 1999, or
reactivate a refinery that was shutdown or was non-operational between
January 1, 1998, and January 1, 1999, may apply for small refiner
status in accordance with the provisions of [sect] 80.235.
[FR Doc. 02-13807 Filed 5-31-02; 8:45 am]
BILLING CODE 6560-50-P