[Federal Register Volume 67, Number 101 (Friday, May 24, 2002)]
[Rules and Regulations]
[Pages 36766-36771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12846]
[[Page 36765]]
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Part V
Environmental Protection Agency
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40 CFR Part 80
Prohibition on Gasoline Containing Lead or Lead Additives for Highway
Use: Fuel Inlet Restrictor Exemption for Motorcycles; Final Rule
Federal Register / Vol. 67, No. 101 / Friday, May 24, 2002 / Rules
and Regulations
[[Page 36766]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-7215-3]
RIN 2060-AJ76
Prohibition on Gasoline Containing Lead or Lead Additives for
Highway Use: Fuel Inlet Restrictor Exemption for Motorcycles
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's rule exempts motorcycles with emission control devices
that could be affected by the use of leaded gasoline from having to be
equipped with gasoline tank filler inlet restrictors. As before,
motorcycles and other motor vehicles without such emission control
devices are not required to be equipped with gasoline tank filler inlet
restrictors.
The Clean Air Act and corresponding EPA regulations prohibit
gasoline containing lead or lead additives (leaded gasoline) as a motor
vehicle fuel after December 31, 1995. As a deterrent to misfueling
prior to that date, the EPA regulations required filler inlet
restrictors on motor vehicles equipped with an emission control device
that could be affected by the use of leaded gasoline, such as a
catalytic converter. EPA retained that provision after 1995 because the
filler inlet restrictor, besides being a deterrent to misfueling, has
also been incorporated into the design of some vapor recovery gasoline
nozzle spouts. Gasoline tank filler inlet restrictors do not work well
with most motorcycle fuel tanks, especially the saddle type of tank,
because of their shallow depth. A gasoline tank filler inlet restrictor
may cause gasoline spitback or spillage when a motorcycle is refueled,
which increases evaporative emissions. Today there is relatively little
risk of misfueling a motorcycle. Also, it is unlikely that a gasoline
tank filler inlet restrictor on a motorcycle helps to control gasoline
vapors when the motorcycle is refueled.
DATES: This action will be effective June 24, 2002.
ADDRESSES: Comments: All comments and materials relevant to today's
action have been placed in public docket A-2001-17 at the following
address: U.S. Environmental Protection Agency (EPA), Air Docket (6102),
Room M-1500, 401 M Street, SW., Washington, DC 20460 (on the ground
floor in Waterside Mall) from 8:00 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. We may
charge a reasonable fee for copying docket materials, as provided in 40
CFR part 2.
FOR FURTHER INFORMATION CONTACT: Richard Babst at (202) 564-9473,
facsimile: (202) 565-2085, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially affected by this rule are manufacturers of
motorcycles. Regulated categories include:
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Examples of regulated
Category entities
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Industry.................................. Manufacturers of motorcycles
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To determine whether you are affected by this rule, you should
carefully examine the requirements in [sect] 80.24(b) of title 40 of
the Code of Federal Regulations (``CFR''). If you have any questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
I. History of Fuel Tank Filler Restrictor
Prior to 1996, 40 CFR 80.24(b) contained size specifications for
the gasoline tank filler inlet of motor vehicles equipped with an
emission control device that would be significantly impaired by the use
of leaded gasoline. The purpose of the tank filler inlet restriction
was to allow the insertion of an unleaded gasoline pump nozzle, but not
a leaded gasoline pump nozzle. Specifically, [sect] 80.24(b) required
that a manufacturer of motor vehicles ``equipped with an emission
control device which the Administrator has determined will be
significantly impaired by the use of leaded gasoline'' shall
``[m]anufacture such vehicle with each gasoline tank filler inlet
having a restriction which prevents the insertion of a nozzle with a
spout as described in [sect] 80.22(f)(1) and allows the insertion of a
nozzle with a spout as described in [sect] 80.22(f)(2).'' Section
80.22(f)(1) specified that ``[e]ach pump from which leaded gasoline is
introduced into motor vehicles shall be equipped with a nozzle spout
having a terminal end with an outside diameter of not less than 0.930
inch (2.363 centimeters).'' Section 80.22(f)(2) specified that ``[e]ach
pump from which unleaded gasoline is introduced into motor vehicles
shall be equipped with a nozzle spout which meets the following
specifications: (i) The outside diameter of the terminal end shall not
be greater than 0.840 inch (2.134 centimeters); (ii) * * *''
Section 80.24(b) contained additional specifications to prevent
misfueling of motor vehicles with leaded gasoline. Section 80.24(b)(1)
required that the filler inlet restrictor ``pool'' gasoline at the
restrictor's opening, if fueling is attempted when the spout of a pump
nozzle is not inserted into the restrictor opening. Historically, this
had been accomplished by a spring-loaded door on the inside of the
restrictor opening, which would be pushed open by inserting the spout
of an unleaded gasoline nozzle. Since leaded gasoline nozzle spouts
were larger than the inlet restrictor opening, they did not fit into
the restrictor opening or push open the spring loaded door. Fueling
with leaded gasoline would require the nozzle spout to be positioned in
front of the restrictor opening and spring-loaded door. If fueling were
attempted in this manner, the gasoline would pool at the restrictor
opening and cause the nozzle's automatic shut-off device to activate.
The related [sect] 80.24(b)(2) exempted motorcycle manufacturers from
meeting the ``pooling'' requirements of [sect] 80.24(b)(1).
Section 211(n) of the Clean Air Act, 42 U.S.C. 7545(n), prohibits
the introduction of gasoline containing lead or lead additives into
commerce for use as a motor vehicle fuel after December 31, 1995. For
consistency with this Clean Air Act prohibition, we published in the
Federal Register on February 2, 1996 a direct final rule and associated
notice of proposed rulemaking revising our regulations (61 FR 3832 and
61 FR 3894, respectively). The direct final rule became effective on
March 4, 1996 except for language associated with [sect] 80.24(b). We
withdrew language for that paragraph from the direct final rule on
March 4, 1996 (61 FR 8221) due to adverse comment, and subsequently
published revised language in the Federal Register on June 6, 1996 (61
FR 28763).
In the February 2, 1996 direct final rule and associated notice of
proposed rulemaking, we removed various portions of [sect] 80.24,
including the introductory text, and modified [sect] 80.24(b) to make
the size requirements of the tank filler inlet applicable to all new
motor vehicles, and not just to those equipped with an emission control
device that would be significantly impaired by the use of leaded
gasoline. We reasoned that retaining the requirement for the tank
filler inlet restrictor would conform with the statutory ban
prohibiting the use of gasoline containing lead or lead
[[Page 36767]]
additives as a motor vehicle fuel. The restrictor requirements for
motor vehicles would match the nozzle size requirement for dispensing
unleaded gasoline, which we had retained in [sect] 80.22(f)(2).
Further, General Motors and several gasoline pump nozzle manufacturers
had requested that the specification for the tank filler inlet size be
retained so that automobile equipment would continue to be compatible
with Stage II vapor recovery pump nozzles. We simplified the
applicability language of [sect] 80.24(b) to refer to all motor
vehicles, instead of motor vehicles equipped with an emission control
device that would be significantly impaired by the use of leaded
gasoline, because we thought that all motor vehicles were manufactured
with tank filler inlet restrictors at that time. We did not intend to
broaden the applicability of [sect] 80.24(b).
In the February 2, 1996 direct final rule and associated notice of
proposed rulemaking, we also removed [sect][sect] 80.24(b)(1) and
80.24(b)(2). We believed misfueling would be unlikely, making the
[sect] 80.24(b)(1) ``pooling'' safeguard against misfueling
unnecessary. Once we removed [sect] 80.24(b)(1), it was appropriate for
us to remove [sect] 80.24(b)(2) as well, since [sect] 80.24(b)(2)
exempted motorcycle manufacturers from the requirements of 80.24(b)(1).
We received an adverse comment from Harley Davidson, Inc. (Harley)
on the revised language of 40 CFR 80.24(b) in the February 2, 1996
direct final rule and proposed rule.\1\ In its comment, Harley stated
that motorcycles generally do not use emission control devices that
would be significantly impaired by the use of leaded gasoline (e.g.,
catalytic converters) and are therefore not manufactured with tank
filler inlet restrictors matching the requirements of the existing
[sect] 80.24(b). The February 2, 1996 direct final rule and associated
notice of proposed rulemaking would have required these motorcycles to
meet the fuel inlet size requirements of 40 CFR 80.24(b), thereby
causing additional economic burden and manufacturing complexity for
Harley. We did not intend or foresee that we would be expanding the
applicability of [sect] 80.24(b) by the revised applicability language.
Because of this adverse comment, we withdrew paragraph 40 CFR 80.24(b)
from the direct final rule, and published it in the June 6, 1996 final
rule with its previous applicability.
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\1\ This comment can be found in docket no. A-95-13 for the
February 2, 1996 direct final rule and proposed rule, and for the
June 6, 1996 final rule.
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On October 31, 2001, we published a Direct Final Rule (66 FR 54955)
and concurrent Notice of Proposed Rule (66 FR 54965) to 40 CFR 80.24(b)
to exempt motorcycles equipped with an emission control device that
will be affected by the use of leaded gasoline, such as a catalytic
converter, from having to be equipped with a fuel tank inlet
restrictor. We received an adverse comment, and on December 27, 2001
withdrew the Direct Final Rule (66 FR 66867) in order to address the
comment in today's action based on the concurrent Notice of Proposed
Rule. The December 27, 2001 withdrawal of the direct final rule was
inadvertently published in the Proposed Rule section of the Federal
Register. The Office of the Federal Register is publishing elsewhere in
this issue of the Federal Register a correction reclassifying the
withdrawal as a Rule.
II. Why Are We Exempting Motorcycles?
There are few, if any, offsetting environmental benefits to support
the continued use of gasoline tank filler inlet restrictors in
motorcycles equipped with emission control devices that would be
significantly impaired by the use of leaded gasoline. Today there is
relatively little risk of misfueling a motorcycle. Gasoline tank filler
inlet restrictors were originally required to prevent motor vehicles
with an emission control device, such as a catalytic converter, from
using leaded gasoline. Leaded gasoline can damage catalytic converters
and certain other emission control devices. Significantly, leaded
gasoline has now been banned from use in all motor vehicles for over
six years and is generally no longer available for sale at gasoline
filling stations. Also, it is unlikely that a gasoline tank filler
inlet restrictor on a motorcycle helps to control gasoline vapors when
the motorcycle is refueled. Although a vapor recovery gasoline nozzle,
in conjunction with the gasoline tank filler inlet restrictor, helps to
control gasoline vapors and emissions when used to refuel most motor
vehicles, they are relatively ineffective when used to refuel
motorcycles.
During refueling of a car or truck, the fuel nozzle spout is
inserted into the fill tube and through the filler neck restrictor
plate. The fuel nozzle automatically stops the flow of gasoline when it
senses a sufficiently high level of gasoline vapors below the
restrictor plate, which indicates the fuel tank is full. We understand
that, beginning with the introduction of Stage I vapor recovery fueling
systems in the early 1990s and continuing with current Stage II vapor
recovery systems, the fuel tank inlet restrictor of a car or truck has
been used as a guide, a seat and a pressure contact point for some
vapor recovery gasoline nozzle spouts.
For some vapor recovery fueling systems, the restrictor plate lines
up the nozzle and helps concentrate the fugitive emissions for
collection. Without the restrictor plate, more fugitive emissions would
be released. The ``balance'' type of vapor recovery system uses a boot
to seal around the outside of the tank filler inlet tube. While this
system does not require the restrictor plate to help capture fugitive
emissions, it requires the restrictor plate to push against in order to
activate an interlock. An ``emission'' or ``efficiency'' control vapor
recovery device does not need the restrictor plate to control fugitive
emissions. This device consists of a cup, which has an outside diameter
the same as the inside diameter of the fill hole, that is clipped to
the spout. A similar type of vapor recovery system, the Marconi system,
does not need the restrictor plate or the plastic cup.\2\
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\2\ Conversation with Catlow on April 3, 2001.
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Most on-board vapor recovery systems, which are required for light-
duty vehicles and light-duty trucks but not for motorcycles, are also
designed around the restrictor plate. A seal is needed between the pump
nozzle and the tank filler inlet tube to prevent fugitive emissions
from escaping. This seal is normally located below the restrictor
plate, and uses the restrictor plate to line-up the nozzle with the
seal. Fugitive emissions below the seal are then diverted to a canister
in the vehicle.\3\
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\3\ IBID.
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We understand that gasoline tank filler inlet restrictors do not
work well with most motorcycle fuel tanks, especially the saddle type
of tank, because of their shallow depth. The use of gasoline tank inlet
restrictors in motorcycles may in fact contribute to unnecessary
releases of gasoline vapors and emissions. Unlike a car or truck,
motorcycles are typically fueled while the operator observes the tank
fuel level, similar to filling a small gasoline container typically
used to refuel lawnmowers and other small gasoline powered equipment.
However, the restrictor plate obstructs the view of the fuel level, and
could contribute to inadvertent fuel overfill and spillage. If fueling
with the ``balance'' type of vapor recovery nozzle, motorcycle
operators generally pull back and hold the rubber boot to activate the
interlock and allow
[[Page 36768]]
for better visibility, but that defeats the vapor recovery system.\4\
Further, the filler inlet restrictor may cause the nozzle spout to be
inserted deeper into the motorcycle tank than otherwise would be
necessary, potentially causing increased splash back from the shallow
tank. Besides causing excess gasoline vapors and spitback through the
restrictor plate openings, this splashback could cause the pump nozzle
to prematurely stop the flow of gasoline. The operator may have to
reactivate the pump nozzle, possible several times, before the tank is
full.
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\4\ Also, for those motorcycles where the filler cap is attached
to the gas tank by a hinge, the rubber boot of a ``balance'' type of
vapor recovery nozzle would not seat correctly anyway, and the
insertion pressure required to compress the boot may damage the gas
cap, hinge, and tank finish.
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These problems were not much of an issue in the 1995 and earlier
time frame, because only relatively few motorcycles were equipped with
catalytic converters, and thus, only relatively few required tank inlet
restrictors. However, a significant number of 2001 model year
motorcycles have been equipped with catalytic converters.
III. Response to Comment
An adverse comment was submitted jointly from representatives of
the multifamily rental industry: National Apartment Association,
National Leased Housing Association, and National Multi Housing Council
(herein referred to collectively as ``NAA''). NAA expressed concern
about environmental exposure to lead caused by potential increased
usage of leaded gasoline, and raised four issues, which we will address
separately.
Issue 1: NAA objects to EPA's proposed decision that would have the
practical effect of making it easier for motorcycles to use leaded
fuel, increase their usage of leaded gasoline and consequently increase
lead emissions into the environment.
Fuel inlet restrictors together with pooling specifications were
required to prevent damage to emission control devices, such as
catalytic converters, installed on many motor vehicles to reduce smog.
Today's action does not allow a motorcycle to use leaded gasoline, nor
does it make it more likely that a motorcycle will misfuel with leaded
gasoline. The fact that there is no suggestion or evidence that the
large number of motorcycles in the U.S. not equipped with a fuel inlet
restrictor are being misfueled supports this conclusion.
Fuel inlet restrictors have never prevented the use of leaded
gasoline in motorcycles. Fuel inlet restrictors with size and
``pooling'' specifications were required from the mid-1970s until 1996
for motor vehicles with emission control devices, such a catalytic
converters, that could be damaged by the use of leaded gasoline. At
that time, both leaded and unleaded gasoline were generally available
at gasoline filling stations.\5\ The size and ``pooling''
specifications were intended to prevent the fueling of those vehicles
with leaded gasoline. Significantly, motorcycles have always been
exempt from the ``pooling'' specification.
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\5\ While both leaded and unleaded gasoline were available at
gasoline filling stations since the mid-1970s, the availability of
leaded gasoline gradually diminished and became small by the early
1990s. This was likely due to the increasing dominance of highway
vehicles requiring unleaded gasoline, the increasing cost of
producing and distributing the smaller volume of leaded gasoline,
and our lead phase-down program of the 1980s.
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The size specification prevented leaded gasoline nozzles, which had
a larger diameter than unleaded gasoline nozzles, from being inserted
into the fuel inlet restrictor opening. The ``pooling'' specification
was typically met by a spring loaded door covering the fuel inlet
opening, which could be pushed open with an unleaded gasoline nozzle
for normal fueling. But, if fueling were attempted with a leaded
gasoline nozzle, the spring loaded door would remain closed and
gasoline would pool in the filler tube above the restrictor. The pooled
gasoline would activate the gas pump's automatic cut-off device or
overflow onto the vehicle and ground. Not only were motorcycles exempt
from the ``pooling'' specification, but also very few motorcycles were
required to be equipped with the filler neck restrictor because most
did not have catalytic converters.
The specifications of the fuel inlet restrictor were changed in
1996 because leaded gasoline was no longer permitted as a fuel for any
motor vehicle and we no longer considered fueling with leaded gasoline
to be a significant possibility.\6\ We retained the specification for
the ``shell'' of the restrictor so that vapor recovery refueling
nozzles and fuel inlets on the motor vehicles would remain compatible.
However, we eliminated the critical ``pooling'' specification. A filler
inlet restrictor meeting today's specification allows fueling with
large diameter gasoline nozzles, such as the former leaded gasoline
nozzles, although it would be a minor inconvenience. Refueling is
possible by holding the nozzle over the restrictor opening and letting
the gasoline pour through the opening. This process might take somewhat
longer because the fueling rate may need to be slowed to prevent
splashing of the fuel off of the restrictor surface. Since motorcycles
were already exempt from the ``pooling'' specification prior to 1996,
the 1996 regulatory change had no practical effect on motorcycles.
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\6\ 61 FR 3832, February 2, 1996 (Direct Final Rule); 61 FR
389461, February 2, 1996 (Notice of Proposed Rule); 61 FR 8221,
March 4, 1996 (partial withdrawal of the Direct Final Rule of
February 2, 1996); 61 FR 28763, June 6, 1996 (Final Rule to complete
February 2, 1996 rulemaking).
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Even if a motorcycle owner wanted to use leaded fuel, it is
relatively hard to find today. It is no longer generally available at
retail gasoline stations because the use of leaded fuel is banned in
motor vehicles. We estimate that only 0.3 percent of the gasoline used
in the United States today is leaded gasoline.\7\ It is used primarily
in some aircraft engines and some race cars.\8\ Although non-highway
engines can use leaded gasoline, most do not. The non-highway engines
that can use both leaded or unleaded gasoline use only unleaded
gasoline, and the other non-highway engines that were designed to use
leaded gasoline (other than certain racing or aircraft engines), such
as some old farm equipment, currently use unleaded gasoline mixed with
a commercially available lead substitute additive.\9\
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\7\ Based on the National Transportation Statistics 2000, Table
4-7, BTS01-01, Bureau of Transportation Statistics, for 1998, the
aviation component of non-highway gasoline was 351 million gallons,
which is 10.7 percent of the total 3,284 million gallons non-highway
gasoline. The racing component is considered negligible according to
a conversation with the American Petroleum Institute, and a racing
component was not broken out into a separate category in the BTS
table. The BTS table also does not break marine engines into a
separate category. Our contacts in the fuel industry doubt that
leaded gasoline is used by marine engines, and we have no evidence
of such use. If we assume 351 million gallons is the aviation and
racing component combined (the racing component being negligible),
and that aviation and racing are the only applications using leaded
gasoline, than leaded gasoline represents only 0.3 percent of the
total 128 billion gallons of highway and non-highway gasoline
combined.
\8\ According to the Department of Energy, jet fuel, which is a
kerosene derivative of petroleum, comprises 98.8 percent of aviation
energy (BTU) demand in the United States. Aviation gasoline, which
is consumed by aircraft equipped with reciprocating engines and
which may contain lead, comprises the remaining 1.2 percent of
aviation energy demand. (see Internet at http://www.eia.doe.gov/oiaf/aeo/supplement/sup_tran.pdf, Table 54) Also, not all race cars
use gasoline--some use nitromethane or methanol.
\9\ Some non-highway applications need to use leaded gasoline or
its equivalent. Non-highway engines built prior to the mid-1970s
were designed to run on leaded gasoline. The use of unleaded
gasoline in many of those old engines could cause valve seat
recession. However, the equivalent of leaded gasoline can be
obtained from unleaded gasoline by mixing it with a commercially
available lead substitute additive, such as Millers VSP, Red Line
Lead Substitute, Superblend 12/Zero Lead 2000, and Valvemaster.
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[[Page 36769]]
One reason why the non-highway market (other than certain aviation
and racing engines) has switched to unleaded gasoline and, thereby,
made leaded gas harder to find is the cost of maintaining separate fuel
distribution systems for highway and non-highway applications.
Maintaining an additional tank and fuel pump for a small volume of
leaded gasoline at a retail gasoline station is generally not cost
effective. This is particularly true if the local non-highway consumer
market can use unleaded highway gasoline instead. Also leaded gasoline
must be segregated in dedicated storage and shipping tanks and must use
dedicated transfer lines to prevent lead contamination of the unleaded
highway gasoline supply.
Another reason why the non-highway market (other than certain
aviation and racing engines) has switched to unleaded gasoline is that
leaded gasoline causes corrosive lead compound deposits in the engines
and lubricating oil. Consequently, using leaded gasoline requires more
frequent oil changes and reduces engine and exhaust system life. Even
those engines designed to run on leaded gasoline can use unleaded
highway gasoline and reap the benefits of unleaded gasoline if it is
mixed with a commercially available lead substitute additive. Thus all
non-road engines (except for certain racing and aircraft engines) can
use unleaded highway gasoline, although some may need to also use a
lead substitute additive.
A motorcycle owner, therefore, that wanted to use leaded gasoline
would either have to go to an airport, a race track or a racing supply
center. Even if such an owner obtained leaded gasoline at one of these
locations, the fuel would be specially formulated as aviation gasoline
or racing gasoline that may not be suitable for use in a highway
motorcycle.
Finally, even if a motorcycle owner could find a leaded gasoline,
it is unlikely that he or she would want to pay more for leaded
gasoline than for cheaper unleaded gasoline that is conveniently
available at retail gasoline stations. In January 2002, for example,
the price of aviation fuel at an airport in the Washington D.C. area
was $2.65 per gallon.\10\ By comparison, the price of unleaded gasoline
at retail gasoline stations in the same community during that same time
period was less than $1.10. Racing gasolines are even more expensive
than aviation fuels. In January 2002, racing gasolines in the
Washington D.C. area cost an average of about $3 to $5 per gallon
depending on the blend (especially depending on the desired octane),
and could be as high as $7 per gallon.\11\
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\10\ From conversation with aviation firm at Frederick Airport
in Frederick Maryland on January 7, 2002.
\11\ From conversation with racing firm in Gaithersburg,
Maryland on January 7, 2002.
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Issue 2: NAA claims that EPA's proposal is inconsistent with
findings of the President's Task Force on Environmental Health Risks
and Safety to Children, report titled ``Eliminating Childhood Lead
Poisoning: a Federal Strategy Targeting Lead Paint hazards. NAA also
claims the proposal is inconsistent with EPA's regulatory mandate under
other statutes to limit exposure to lead. Although leaded gasoline has
been prohibited for use in motor vehicles since 1995, NAA indicates
that leaded gasoline remains available for military, construction and
agricultural use.
Eliminating the fuel inlet requirement for motorcycles equipped
with catalytic converters is not inconsistent with longstanding efforts
to reduce lead in the environment. As discussed above, fuel inlet
restrictors together with pooling specifications were required to
prevent damage to emission control devices, such as catalytic
converters, installed on many motor vehicles to reduce smog. Today's
action does not allow a motorcycle to use leaded gasoline, nor does it
make it more likely that a motorcycle will misfuel with leaded
gasoline.
Issue 3: NAA asked for copies of the risk assessments and the cost
benefit analysis conducted by EPA in support of the proposed rule.
EPA does not believe that today's action will result in an
increased risk of greater lead emissions into the environment. EPA,
therefore, did not conduct a risk assessment or a cost benefit-analysis
for today's rule. Based on the facts discussed above and in the direct
final rule, EPA has concluded that fuel inlet restrictors are not
needed in motorcycles with emission control devices and that the
absence of a fuel inlet restrictor does not make it more likely that a
motorcycle will be misfueled with leaded gasoline. The fact that there
is no suggestion or evidence that the large number of motorcycles in
the U.S. not equipped with a fuel inlet restrictor are being misfueled
supports this conclusion.
Issue 4: NAA suggested that the proposed rule go through a formal
rulemaking process in order to allow for public notice and comment
period.
Today's action is an ``informal'' or notice-and-comment rulemaking.
We published a notice of proposed rulemaking on October 31, 2001
soliciting public comment on the proposed rule. We also published a
companion direct final rule which would have gone into effect on
December 31, 2001 had we not received any adverse comment on the
proposed rule. Upon receiving adverse comment to the proposed rule we
withdrew the direct final rule. Today's action responds the adverse
comment and promulgates the Agency's final rule.
Formal rulemaking under sections 556 and 557 of the Administrative
Procedure Act is a trial-type procedure before an agency that is used
very infrequently. The Clean Air Act does not require formal or ``on-
the-record'' rulemaking for today's action.
IV. Final EPA Action
Today's final rule revises 40 CFR 80.24(b) to exempt motorcycles
equipped with an emission control device that will be affected by the
use of leaded gasoline, such as a catalytic converter, from having to
be equipped with a fuel tank inlet restrictor.
V. 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.
[[Page 36770]]
B. Paperwork Reduction Act
This action does not impose any new information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., and therefore is not subject to these requirements.
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 exempts motorcycles from a current
provision that requires them, under certain circumstances, to be
equipped with fuel inlet restrictors, and thus avoids the costs imposed
by the existing Federal regulations. Today's rule, therefore, is not
subject to the requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As discussed above, the rule is a deregulatory action and
affects only motorcycle manufacturers.
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.
This rule is not subject to the Executive Order because it is not
economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. EPA reduced the content of lead in
leaded gasoline, because EPA found that lead particle emissions from
motor vehicles presented a significant risk of harm to the health of
urban populations, especially children (38 FR 33734, Dec. 6, 1973).
Congress ultimately banned the use of leaded gasoline in motor vehicles
after 1995. 42 U.S.C. 7545(n). Gasoline tank filler inlet restrictors
were related to the phase-out of leaded gasoline to prevent a motor
vehicle with an emission control device, such as a catalytic converter,
from using leaded gasoline. Leaded gasoline can damage such emission
control devices. Today there is relatively little risk of misfueling a
motorcycle with an emission control device that could be damaged by the
use of leaded gasoline, because leaded gasoline has now been banned
from use in all motor vehicles for over five years and is generally no
longer available for sale at gasoline filling stations.
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. Today's rule eliminates the
existing requirement that manufacturers of motorcycles must equip
certain motorcycles with fuel tank filler inlet restrictors. 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''), Public Law 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. 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
[[Page 36771]]
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.
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.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may conclude that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. We
have therefore concluded that today's final rule will relieve
regulatory burden for all small entities affected by this rule.
Today's rule is a deregulatory action and affects all motorcycle
manufacturers. It eliminates the existing requirement that
manufacturers of motorcycles must equip certain motorcycles with fuel
tank filler inlet restrictors. We have therefore concluded that today's
rule will relieve regulatory burden for any small entity.
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, 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.'' ``Policies that have tribal
implications'' is defined in the 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.''
This final rule does not have tribal implications. It 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.
The rule affects the applicability of the fuel tank filler inlet
restrictor to motorcycles. It therefore affects only manufacturers of
motorcycles 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.
K. Electronic Copies of Rulemaking
A copy of this action is available on the Internet at http://www.epa.gov/otaq under the title: ``Final Rule--Prohibition on Gasoline
Containing Lead or Lead Additives for Highway Use: Fuel Inlet
Restrictor Exemption For Motorcycles.''
L. Statutory Authority
Authority for this action is in sections 211, and 301(a) of the
Clean Air Act, 42 U.S.C. 7545, 7601(a).
List of Subjects in 40 CFR Part 80
Environmental protection, Fuel additives, Gasoline, Motor vehicle
pollution, Penalties, Reporting and recordkeeping requirements.
Dated: May 16, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, part 80 of title 40 of
the Code of Federal Regulations is amended as follows:
PART 80--REGULATIONS 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. Section 80.24 is amended by adding paragraph (c) to read as
follows:
[sect] 80.24 Controls applicable to motor vehicle manufacturers.
* * * * *
(c) A motorcycle, as defined at 40 CFR 86.402 for the applicable
model year, is exempt from the requirements of paragraph (b) of this
section.
[FR Doc. 02-12846 Filed 5-23-02; 8:45 am]
BILLING CODE 6560-50-P