[Federal Register Volume 67, Number 107 (Tuesday, June 4, 2002)]
[Rules and Regulations]
[Pages 38398-38403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13976]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-7222-5]
RIN 2060-AK07


Regulation of Fuels and Fuel Additives: Modifications to 
Reformulated Gasoline Covered Area Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In today's final action, EPA is making several minor 
modifications to its reformulated gasoline (RFG) regulations to reflect 
changes in the covered areas for the federal RFG program, and to delete 
obsolete language and clarify existing language in the provisions 
listing the federal RFG covered areas. These changes include: Deleting 
the seven southern counties in Maine from the RFG covered areas list, 
reflecting their opt-out of the RFG program as of March 10, 1999; 
adding the Sacramento Metro and San Joaquin Valley nonattainment areas 
to the list of RFG covered areas, reflecting the Sacramento Metro 
Area's inclusion in the RFG program as of June 1, 1996 and the San 
Joaquin Valley Area's inclusion in the RFG program on December 10, 
2002; and deleting the text which extended the RFG opt-in provisions to 
all ozone nonattainment areas including previously designated ozone 
nonattainment areas, reflecting a court decision in January, 2000, 
which invalidated this language. This direct final action also makes 
certain other minor changes in the provisions listing the RFG covered 
areas for purposes of clarification.

DATES: This direct final rule is effective on August 5, 2002, without 
further notice, unless EPA receives substantive adverse comments by 
July 5, 2002. If substantive adverse comments are received, EPA will 
publish a timely

[[Page 38399]]

withdrawal of the direct final rule in the Federal Register and inform 
the public that this direct final rule will not take effect.

ADDRESSES: Comments should be mailed (in duplicate if possible) to John 
Brophy, Office of Transportation and Air Quality (mail code 6406J), 
U.S. Environmental Protection Agency, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW., Washington, DC, 20460, and to the following 
docket address: Docket A-2001-32, Air Docket Section, Mail Code 6102, 
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460, in room M-1500 Waterside Mall. Materials relevant to today's 
rulemaking have been placed in the Docket A-2001-32 at the docket 
address \saves\rules.xmllisted above, and may be inspected on business 
days from 8 a.m. to 5:30 p.m. A reasonable fee may be charged for 
copying docket material.
    Materials relevant to today's rulemaking regarding the removal of 
the seven Maine counties from the federal RFG program are also 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA-New England, One Congress Street, 11th floor, 
Boston, MA and the Bureau of Air Quality Control, Department of 
Environmental Protection, 71 Hospital Street, Augusta, ME 04333. For 
further information, contact Robert C. Judge at (617) 918-1045.
    Materials relevant to today's rulemaking regarding the self-
executing change in status of the Sacramento Metro and San Joaquin 
Valley nonattainment areas are also available for inspection during 
normal business hours in the Air Docket, EPA Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105. This rule and the Technical Support 
Documents for the proposed actions are also available in the air 
programs section of EPA Region 9's website, http://www.epa.gov/region09/air. Interested persons may make an appointment with Ms. 
Virginia Peterson at (415) 744-1265, to inspect the docket between 9 
a.m. and 4 p.m. A reasonable fee may be charged for copying docket 
material.
    There are several other dockets that may also contain related 
materials of interest to the public:
    Materials relevant to EPA's approval of a State Implementation Plan 
(SIP) revision submitted by the State of Maine are available for public 
inspection during normal business hours, by appointment at the Office 
of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, 11th floor, Boston, MA; 
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room M-1500, 401 M Street, (Mail Code 6102), SW., 
Washington, DC; and the Bureau of Air Quality Control, Department of 
Environmental Protection, 71 Hospital Street, Augusta, ME 04333. For 
further information, contact Robert C. Judge at (617) 918-1045.
    Materials regarding the reclassification of the Sacramento Metro 
Area as a ``Severe'' ozone nonattainment area are in Docket A-94-09. 
The docket is located at the Air Docket Section, Mail Code 6102, U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460, in room M-1500 Waterside Mall. Documents may be inspected on 
business days from 8 a.m. to 5:30 p.m. A reasonable fee may be charged 
for copying docket material.
    Materials regarding the reclassification of the San Joaquin Valley 
Area as a ``Severe'' ozone nonattainment area are available for 
inspection during normal business hours in the Air Docket, EPA Region 
IX, 75 Hawthorne Street, San Francisco, CA 94105. This rule and the 
Technical Support Documents for the proposed actions are also available 
in the air programs section of EPA Region 9's website, http://www.epa.gov/region09/air. Interested persons may make an appointment 
with Ms. Virginia Peterson at (415) 744-1265, to inspect the docket 
between 9 a.m. and 4 p.m. A reasonable fee may be charged for copying 
docket material.
    Materials regarding the extension of the RFG opt-in provisions to 
all ozone nonattainment areas including previously designated ozone 
nonattainment areas, and the January, 2000, court decision, are in 
Docket A-96-30. The docket is located at the Air Docket Section, Mail 
Code 6102, U.S. Environmental Protection Agency, 401 M Street, SW., 
Washington, DC 20460, in room M-1500 Waterside Mall. Documents may be 
inspected on business days from 8 a.m. to 5:30 p.m. A reasonable fee 
may be charged for copying docket material.
    Materials relevant to the removal of the Phoenix area from the 
federal RFG program are in Docket A-98-23. The docket is located at the 
Air Docket Section, Mail Code 6102, U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460, in room M-1500 
Waterside Mall. Documents may be inspected on business days from 8 a.m. 
to 5:30 p.m. A reasonable fee may be charged for copying docket 
material.

FOR FURTHER INFORMATION CONTACT: John Brophy, U.S. Environmental 
Protection Agency, Office of Air and Radiation, 1200 Pennsylvania Ave., 
NW (Mail Code 6406J), Washington, DC 20460, (202) 564-9068, e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

Availability on the Internet

    Copies of this final rule are available electronically from the EPA 
Internet Web site. This service is free of charge, except for your 
existing cost of Internet connectivity. An electronic version is made 
available on the day of publication on the primary Internet site listed 
below. The EPA Office of Transportation and Air Quality will also 
publish this final rule on the secondary Web site listed below.

http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select desired date 
or use Search feature),
http://www.epa.gov/otaq/ (look in What's New or under the specific 
rulemaking topic).

    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.

Regulated Entities

    Entities potentially regulated by this action are those which 
produce, import, supply or distribute gasoline. Regulated categories 
and entities include:

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            Category                  Examples of regulated entities
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Industry........................  Refiners, importers, oxygenate
                                   blenders, terminal operators,
                                   distributors, retail gasoline
                                   stations.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your business would have been regulated by this action, you should 
carefully examine the list of areas covered by the reformulated 
gasoline program in Sec. 80.70 of Title 40 of the Code of Federal 
Regulations (CFR). If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

[[Page 38400]]

I. Opt-Out of Maine Nonattainment Areas

    EPA's reformulated gasoline (RFG) regulations include a list of 
geographic areas that are covered areas for purposes of the RFG 
program. 40 CFR 80.70. Section 80.70(j) identifies the nonattainment 
areas that opted into the RFG program at the beginning of the program. 
Seven Maine counties opted into the RFG program at that time and are 
listed in Sec. 80.70(j)(5). Section 80.70(l) provides that, upon the 
effective date for removal under Sec. 80.72(a), a geographic area that 
has opted out of the RFG program shall no longer be considered a 
covered area.
    On March 5, 1999, EPA approved an opt-out petition submitted by the 
Governor of Maine, and the seven Maine counties of Androscoggin; 
Cumberland; Kennebec; Knox; Lincoln; Sagadahoc; and York were removed 
from the RFG program effective March 10, 1999.\1\ With today's direct 
final rule, EPA is amending Sec. 80.70(j)(5) of EPA's RFG regulations 
by removing the seven listed Maine counties to reflect that they are no 
longer covered areas in the federal RFG program.
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    \1\ Published elsewhere in the Notice section of today's Federal 
Register EPA announces and describes its approval of Maine's opt-out 
petition according to the procedures set forth in 40 CFR 80.72. 
These regulatory provisions were established pursuant to authority 
under sections 211(c) and (k) and 301(a) of the Clean Air Act to 
provide criteria and general procedures for a state to opt-out of 
the RFG program where the state had previously voluntarily opted 
into the program. See 61 FR 35673 (July 8, 1996); 62 FR 54552 
(October 20, 1997).
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II. Inclusion of Sacramento and San Joaquin Valley as Covered Areas

    Under Clean Air Act section 211(k)(10)(D), any ozone nonattainment 
area that is reclassified as a Severe ozone nonattainment area becomes 
an RFG covered area effective one year after its reclassification. 42 
U.S.C. 7545(k)(10)(D).
    Effective June 1, 1995, the Sacramento, California, ozone 
nonattainment area was reclassified from a Serious to a Severe ozone 
nonattainment area. 60 FR 20237 (April 25, 1995). The Sacramento ozone 
nonattainment area, therefore, became an RFG covered area as of June 1, 
1996.
    Effective December 10, 2001, the San Joaquin Valley, California, 
ozone nonattainment area was reclassified from a Serious to a Severe 
ozone nonattainment area.\2\ The San Joaquin Valley ozone nonattainment 
area, therefore, will become an RFG covered area as of December 10, 
2002.
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    \2\ In a final rulemaking, EPA took action to change the 
boundary for the San Joaquin Valley serious ozone nonattainment area 
by separating out the eastern portion of Kern County into its own 
nonattainment area. See 66 FR 56483 (November 8, 2001). EPA extended 
the attainment deadline for the new East Kern County serious ozone 
nonattainment area from November 15, 1999 to November 15, 2001.
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    In today's direct final rule, EPA is amending Sec. 80.70 to reflect 
that the Sacramento nonattainment area became a covered area in the 
federal RFG program by operation of law on June 1, 1996 and that the 
San Joaquin Valley nonattainment area will become a covered area in the 
federal RFG program by operation of law on December 10, 2002.\3\ These 
amendments, in combination with the amendment described in Section I 
above, will bring the regulations into conformity with the existing 
status of ``covered areas'' in the RFG program.
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    \3\ In a Notice of Proposed Rulemaking published on July 11, 
1997, EPA proposed to update the list of RFG covered areas in 
Sec. 80.70 to include the Sacramento nonattainment area. See 62 FR 
37338. In that notice EPA proposed regulatory text describing the 
Sacramento covered area by its geographic boundaries, however, in 
today's final rule we are instead describing the Sacramento covered 
area by reference to the geographic description of its nonattainment 
area boundaries as specified in 40 CFR part 81, subpart C. We note 
also that the Sacramento and San Joaquin Valley areas currently 
receive gasoline that complies with California's State reformulated 
gasoline (CaRFG) program, and that such gasoline is generally 
covered by EPA enforcement exemptions. See 64 FR 49992 (Sept. 15, 
1999); 40 CFR 80.81.
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III. Deletion of Opt-In Language

    Section 80.70(k) of the RFG rule as originally promulgated provided 
that any area classified as a Marginal, Moderate, Serious, or Severe 
ozone nonattainment area may be included as an RFG covered area (i.e, 
``opt-in'') upon petition of the governor of the state in which the 
area is located.\4\ EPA subsequently modified this language to provide 
that any area ``currently or previously designated as a nonattainment 
area for ozone'' may be included as an RFG covered area. 63 FR 52094 
(September 29, 1998). This modification was subsequently challenged in 
the United States Court of Appeals for the District of Columbia 
Circuit, which found that EPA lacked authority to promulgate this 
modification. American Petroleum Institute v. EPA., 198 F.3d 275 (D.C. 
Cir. 2000). Therefore, with today's direct final rule, EPA is amending 
Sec. 80.70 to remove the text which extended the opt-in provisions and 
reinstate the language of this section as originally promulgated.
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    \4\ 59 FR. 7716 (February 16, 1994).
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IV. Additional Changes to Sec. 80.70

    Today's rule revises the introductory text of Sec. 80.70(j) to 
distinguish the nonattainment areas that have opted into the RFG 
program from those that are required to be in the program under the 
Clean Air Act. In addition, today's rule revises the text of sections 
80.70(l) and (n) to make these provisions clearer. These minor 
revisions are strictly organizational and do not change the substance 
or intent of these provisions in any way. Today's rule also removes the 
current provisions of Sec. 80.70(m) relating to Phoenix as an opt-in 
covered area, since the Phoenix area is no longer a covered area as of 
June 10, 1998.\5\ The provisions for the Sacramento and San Joaquin 
Valley covered areas, described above, are included in a new 
Sec. 80.70(m).
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    \5\ Published on August 11, 1998, in the Federal Register (at 63 
FR 43044) is a public announcement of EPA's approval of the Arizona 
Governor's petition and the effective date of the Phoenix opt-out. 
The opt-out effective date for the Phoenix area was June 10, 1998.
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V. Public Participation

    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This rule will be effective August 5, 2002, without 
further notice unless the Agency receives adverse comments by July 5, 
2002. If EPA receives substantive adverse comments on this action, we 
will publish in the Federal Register a timely withdrawal of the direct 
final rule informing the public that this direct final rule will not 
take effect. EPA considers each element of today's direct final rule to 
be independent and severable, therefore, if we receive adverse comment 
we will withdraw only those elements (an amendment, section or 
paragraph) of this action that are addressed by such comments.
    EPA is publishing separately, in the ``Proposed Rules'' section of 
today's Federal Register, a notice of proposed rulemaking that 
incorporates each of the regulatory amendments included in this direct 
final rule. In the event that EPA receives adverse comment on all or 
part of this direct final rule, we will proceed according to ordinary 
notice and comment rulemaking procedures. We will address all adverse 
public comments in a subsequent final rule based on the proposed rule. 
EPA will not institute a second comment period on this rule. Any 
parties interested in commenting on this rule should do so at this 
time.
    Today's amendments to the CFR reflect changes that have occurred in 
separate actions in accordance with EPA's regulations and the CAA. This 
rule is not itself an approval of Maine's or Arizona's opt-out request-
-Agency

[[Page 38401]]

action approving those petitions occurred earlier in separate 
administrative proceedings. Similarly, neither the reclassification of 
the Sacramento and San Joaquin Valley nonattainment areas, nor the 
self-executing change in status of these areas to RFG ``covered 
areas,'' are dependent on today's action. EPA is simply modifying the 
list of covered areas in the RFG regulations, 40 CFR 80.70, so the list 
will reflect EPA's earlier approval of the Maine and Arizona opt-out 
requests, and the self-executing change in the status of the Sacramento 
and San Joaquin Valley nonattainment areas. Thus, the various elements 
of today's direct final rule involve little or no exercise of agency 
discretion. Rather today's actions essentially are ministerial 
regulatory amendments.

VI. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (Oct. 4, 1993), the Agency 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) 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;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Today's rule merely amends EPA's regulations to reflect the current 
status of covered areas within the RFG program. These various changes 
in status are not dependant on today's rulemaking, but have occurred 
(or will occur) as the result of separate agency action and self-
executing statutory provisions. However, the Office of Management and 
Budget (OMB) has previously approved the information collection 
requirements contained in the existing [RFG] regulations [CFR citation-
-40 CFR part 80, Subparts D, E an F,] under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0277 (EPA ICR No. 1591.13).
    Copies of the ICR document(s) may be obtained from Sandy Farmer, by 
mail at the Office of Environmental Information, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822); 1200 
Pennsylvania Ave., NW, Washington, DC 20460, by e-mail at 
[email protected], or by calling (202) 260-2740. A copy may also be 
downloaded off the internet at http://www.epa.gov/icr. Include the ICR 
and / or OMB number in any correspondence.
    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.

C. 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, EPA 
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 in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA 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 EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying affected small governments, enabling officials of 
affected small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Today's rule, therefore, is not subject to the 
requirements of sections 202 and 205 of the UMRA.

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, Apr. 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 EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must 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 the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This final rule is not subject 
to Executive Order 13045 because it does

[[Page 38402]]

not establish an environmental standard intended to mitigate health or 
safety risks.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, Aug. 
10, 1999), requires EPA 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.''
    This 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 final rule simply makes 
several minor modifications in the regulations to reflect changes in 
the covered areas for the federal RFG program, and to delete obsolete 
language and clarify existing language in the provisions listing the 
federal RFG covered areas. Thus, Executive Order 13132 does not apply 
to this rule.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub L. No. 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so 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) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. This final rule 
simply makes several minor modifications in the regulations to reflect 
changes in the covered areas for the federal RFG program, and to delete 
obsolete language and clarify existing language in the provisions 
listing the federal RFG covered areas. Therefore, EPA did not consider 
the use of any voluntary consensus standards.

G. Congressional Review

    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. 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. A ``major rule'' 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(a).

H. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. EPA has also 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities. For purposes of assessing 
the impact of today's rule on small entities, small entities are 
defined as: (1) A firm having no more than 1,500 employees and no more 
than 75,000 barrels per day capacity of petroleum-based inputs, 
including crude oil or bona fide feedstocks; \6\ according to Small 
Business Administration (SBA) size standards established under the 
North American Industry Classification System (NAICS); (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.
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    \6\ Capacity includes owned or leased facilities as well as 
facilities under a processing agreement or an agreement such as an 
exchange agreement or a throughput. The total product to be 
delivered under the contract must be at least 90 percent refined by 
the successful bidder form either crude oil or bona fide feedstocks.
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    After considering the economic impacts of today's final rule on 
small entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
This final rule will not impose any requirements on small entities. 
Today's rule revises the introductory text of Sec. 80.70(j) to 
distinguish the nonattainment areas that have opted into the RFG 
program from those that are required to be in the program under the 
Clean Air Act. In addition, today's rule revises the text of 
Sec. 80.70(l) and (n) to make these provisions clearer. These minor 
revisions are strictly organizational and do not change the substance 
or intent of these provisions in any way. Today's rule also removes the 
current provisions of Sec. 80.70(m) relating to Phoenix as an opt-in 
covered area, since the Phoenix area is no longer a covered area as of 
June 10, 1998. Published on August 11, 1998, in the Federal Register 
(at 63 FR 43044) is a public announcement of EPA's approval of the 
Arizona Governor's petition and the effective date of the Phoenix opt-
out. The opt-out effective date for the Phoenix area was June 10, 1998. 
The provisions for the Sacramento and San Joaquin Valley covered areas, 
described above, are included in a new Sec. 80.70(m).
    Today's amendments to the CFR reflect changes that have occurred in 
separate actions in accordance with EPA's regulations and the CAA. This 
rule is not itself an approval of Maine's or Arizona's opt-out request-
-Agency action approving those petitions occurred earlier in separate 
administrative proceedings. Similarly, neither the reclassification of 
the Sacramento and San Joaquin Valley nonattainment areas, nor the 
self-executing change in status of these areas to RFG ``covered 
areas,'' are dependent on today's action. EPA is simply modifying the 
list of covered areas in the RFG regulations, 40 CFR 80.70, so the list 
will reflect EPA's earlier approval of the Maine and Arizona opt-out 
requests, and the self-executing change in the status of the Sacramento 
and San Joaquin Valley nonattainment areas. Thus, the various elements 
of today's direct final rule involve little or no exercise of agency 
discretion. Rather today's actions essentially are ministerial 
regulatory amendments.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, Nov. 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.'' ``Policies that have tribal 
implications'' is defined in the

[[Page 38403]]

Executive Order to include regulations that have ``substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and the Indian tribes, or on the distribution of 
power and responsibilities between the Federal government and Indian 
tribes.''
    Today's rule does not have tribal implications and will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This final rule simply makes several minor modifications in the 
regulations to reflect changes in the covered areas for the federal RFG 
program, and to delete obsolete language and clarify existing language 
in the provisions listing the federal RFG covered areas. Thus, 
Executive Order 13175 does not apply to this rule.

J. 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.

VII. Statutory Authority

    The Statutory authority for the action today is granted to EPA by 
sections 211(c) and (k), 301, and 307 of the Clean Air Act, as amended; 
42 U.S.C. 7545(c) and (k), 7601, 7607; and 5 U.S.C. 553(b).

VIII. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 5, 2002. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(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.



    40 CFR part 80 is amended as follows:

PART 80--[AMENDED]

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

    Authority: Secs. 114, 211, and 301(a) of the Clean Air Act, as 
amended (42 U.S.C. 7414, 7545 and 7601(a)).


    2. Section 80.70 is amended by revising the paragraph (j) 
introductory text, removing and reserving paragraph (j)(5), revising 
paragraphs (k), (l), and (m) and removing paragraph (n) to read as 
follows:


Sec. 80.70  Covered areas.

* * * * *
    (j) Any other area classified under 40 CFR part 81, subpart C as a 
marginal, moderate, serious, or severe ozone nonattainment area may be 
included as a covered area on petition of the Governor of the State in 
which the area is located. The ozone nonattainment areas listed in this 
paragraph (j) opted into the reformulated gasoline program prior to the 
start of the reformulated gasoline program. These areas are covered 
areas for purposes of subparts D, E, and F of this part. The geographic 
extent of each covered area listed in this paragraph (j) shall be the 
nonattainment area boundaries as specified in 40 CFR part 81, subpart 
C.
* * * * *
    (k) The ozone nonattainment areas included in this paragraph (k) 
have opted into the reformulated gasoline program since the beginning 
of the program, and are covered areas for purposes of subparts D, E, 
and F of this part. The geographic extent of each covered area listed 
in this paragraph (k) shall be the nonattainment area boundaries as 
specified in 40 CFR part 81, subpart C.
    (1) The St. Louis, Missouri, ozone nonattainment area is a covered 
area beginning June 1, 1999. The prohibitions of section 211(k)(5) of 
the Clean Air Act apply to all persons in the St. Louis, Missouri, 
covered area, other than retailers and wholesale purchaser-consumers, 
beginning May 1, 1999. The prohibitions of section 211(k)(5) of the 
Clean Air Act apply to retailers and wholesale purchase-consumers in 
the St. Louis, Missouri, area beginning June 1, 1999.
    (2) [Reserved]
    (l) Upon the effective date for removal of any opt-in area or 
portion of an opt-in area included in an approved petition under 
Sec. 80.72(a), the geographic area covered by such approval shall no 
longer be considered a covered area for purposes of subparts D, E, and 
F of this part.
    (m) Effective one year after an area has been reclassified as a 
Severe ozone nonattainment area under section 181(b) of the Clean Air 
Act, such Severe area shall also be a covered area under the 
reformulated gasoline program. The ozone nonattainment areas included 
in this paragraph (m) were reclassified as Severe ozone nonattainment 
areas, and are covered areas for purposes of subparts D, E, and F of 
this part. The geographic extent of each covered area listed in this 
paragraph (m) shall be the nonattainment area boundaries as specified 
in 40 CFR part 81, subpart C.
    (1) The Sacramento, California, ozone nonattainment area, was 
redesignated as a Severe ozone nonattainment area effective June 1, 
1995, and is a covered area for purposes of subparts D, E, and F of 
this part beginning on June 1, 1996.
    (2) The San Joaquin Valley, California, ozone nonattainment area 
was redesignated as a Severe ozone nonattainment area effective 
December 10, 2001, and is a covered area for purposes of subparts D, E, 
and F of this part beginning on December 10, 2002.

[FR Doc. 02-13976 Filed 6-3-02; 8:45 am]
BILLING CODE 6560-50-P