

[Federal Register: June 23, 2006 (Volume 71, Number 121)]
[Proposed Rules]               
[Page 36042-36048]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn06-16]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-8187-2]
RIN 2060-AN63

 
Regulation of Fuel and Fuel Additives: Reformulated Gasoline 
Requirements for Former Severe Nonattainment Areas Under the 1-Hour 
Ozone Standard That Were Redesignated to Attainment for the 1-Hour 
Standard Prior to Its Revocation, and Which Are Current Nonattainment 
Areas for the 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: EPA is seeking comment on two alternative proposals regarding 
reformulated gasoline requirements for an area formerly classified as a 
severe ozone nonattainment area under the 1-hour ozone national ambient 
air quality standard (``NAAQS'' or ``standard'') that was redesignated 
to attainment for that standard before its revocation, and which is 
currently designated as nonattaiment for the 8-hour ozone standard. 
Under the first option, this area would be required to use federal 
reformulated gasoline (RFG) at least until it is redesignated to 
attainment for the 8-hr NAAQS. Under the second option, the State could 
request the removal of RFG, and EPA would grant such a request upon a 
demonstration that removal would not result in loss of any RFG-related 
emission reductions relied upon in the State's Implementation Plan 
(SIP) for ozone. Atlanta is the only area that falls within the scope 
of this proposal.

DATES: Comments: All public comments must be received on or before 
August 22, 2006. To request a public hearing, contact Kurt Gustafson at 
(202) 343-9219 or gustafson.kurt@epa.gov. If a hearing is requested no 
later than July 13, 2006, a hearing will be held at a time and place to 
be published in the Federal Register. Persons wishing to testify at a 
public hearing must contact Kurt Gustafson at (202) 343-9219, and 
submit copies of their testimony to the docket and to Kurt Gustafson at 
the addresses below, no later than 10 days prior to the hearing. After 
the hearing, the docket for this rulemaking will remain open for an 
additional 30 days to receive comments. If a hearing is held, EPA will 
publish a document in the Federal Register extending the comment period 
for 30 days after the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0318, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the on-line instructions for submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741, Attention Docket ID No. OAR-EPA-HQ-
OAR-2006-0318.
     Mail: Air Docket, Docket ID No. EPA-HQ-OAR-2006-0318, 
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, Room B102, EPA West 
Building, 1301 Constitution Avenue, NW., Washington, DC, Attention Air 
Docket ID No. EPA-HQ-OAR-2006-0318, Such deliveries are accepted during 
the Docket's normal hours of operation, and special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0318. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web site 

is an ``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
.


[[Page 36043]]

For additional instructions on submitting comments, go to Unit I.B. of 
the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some 

information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov
 or in hard copy at the Air Docket, EPA/DC, EPA 

West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742. This Docket Facility is open from 8:30 a.m. 
to 4:30 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: For further information about this 
proposed rule, contact Kurt Gustafson, Environmental Scientist, Office 
of Transportation and Air Quality, Transportation and Regional Programs 
Division, mailcode 6406J, Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-
343-9219; fax number: 202-343-2800; e-mail address: 
gustafson.kurt@epa.gov.


SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    This action may affect you if you produce, distribute, or sell 
gasoline for use in the Atlanta area.
    The table below gives some examples of entities that may have to 
comply with the regulations. However, since these are only examples, 
you should carefully examine these and other existing regulations in 40 
CFR part 80. If you have any questions, please call the person listed 
in the FOR FURTHER INFORMATION CONTACT section above.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            NAICS codes
                Category                        \a\        SIC codes \b\                    Examples of potentially  regulated entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Industry................................          324110            2911  Petroleum Refiners.
Industry................................          422710            5171  Gasoline Marketers and Distributors.
                                                  422720            5172
Industry................................          484220            4212  Gasoline Carriers.
                                                  484230            4213
--------------------------------------------------------------------------------------------------------------------------------------------------------
 \a\ North American Industry Classification System (NAICS).
 \b\ Standard Industrial Classification (SIC) system code.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 

the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.
    3. Docket Copying Costs. You may be charged a reasonable fee for 
photocopying docket materials, as provided by 40 CFR part 2.

Outline of This Preamble

I. Background and Regulatory History
II. What Action Is EPA Taking?
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Intergovernmental Relations
    1. Unfunded Mandates Reform Act
    2. Executive Order 13132 (Federalism)
    3. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    E. Executive Order 13045: Children's Health Protection
    F. Protection Executive Order 13211: Energy Effects
    G. National Technology Transfer and Advancement Act
IV. Statutory Provisions and Legal Authority

I. Background and Regulatory History

    Today's proposal follows from previous EPA action in replacing the 
1-hour ozone standard with a more protective 8-hour standard. 69 FR 
23951 (April 30, 2004). EPA has to date issued two rules that clarify 
the extent to which Clean Air Act obligations that existed under the 1-
hour ozone standard continue in effect under the 8-hour standard. These 
rules are the Phase 1 implementation rule, 69 FR 23951 (April 30, 
2004), and the Phase 2 implementation rule. 70 FR 71612 (November 29, 
2005). Although in the Phase 2 rule EPA addressed the requirements for 
the use of reformulated gasoline (RFG) in most parts of the country as 
a result of the transition to the 8-hour standard, EPA indicated that

[[Page 36044]]

it would address in a separate action what RFG requirements should 
apply to--a former severe nonattainment area under the 1-hour standard 
that was redesignated to attainment for the 1-hour standard before it 
was revoked, but after the area was designated nonattainment for the 8-
hour standard.
    In the Phase 1 rule, EPA addressed two interrelated key issues 
regarding the transition from the 1-hour ozone NAAQS to the 8-hour 
ozone NAAQS. First, at what time the 1-hour NAAQS would be revoked 
(i.e., no longer apply). Second, what protections would remain in place 
to ensure that, once the 1-hour NAAQS was revoked, air quality would 
not degrade and that progress toward attainment would continue as areas 
transition from implementing the 1-hour NAAQS to implementing the 8-
hour NAAQS.
    On the first issue, EPA decided that the 1-hour NAAQS would be 
revoked in full, including the associated designations and 
classifications, one year following the effective date of the 
designations for the 8-hour NAAQS. For most areas, which were 
designated effective June 15, 2004, that means the 1-hour NAAQS and the 
related designation and classification no longer applied as of June 15, 
2005.
    On the second issue, the anti-backsliding approach adopted in the 
Phase 1 rule established that all areas designated nonattainment for 
the 8-hour ozone NAAQS and designated nonattainment for the 1-hour 
ozone NAAQS at the time of designation for the 8-hour NAAQS remain 
subject to mandatory control measures that applied by virtue of the 
area's classification for the 1-hour NAAQS. These control measures are 
called ``applicable requirements,'' and are primarily the control 
measures that areas were required to adopt and implement based on the 
area's 1-hour nonattainment classification.\1\ Similarly, EPA concluded 
that areas designated nonattainment for the 8-hour ozone NAAQS and 
designated attainment subject to a Section 175A maintenance plan for 
the 1-hour ozone NAAQS at the time of designation for the 8-hour NAAQS 
remain subject to the applicable requirements. EPA provided that these 
areas must retain those control measures as part of the approved SIP, 
but need not reactivate those measures that the area may have shifted 
to a contingency measure prior to the time the area was designated for 
the 8-hour NAAQS.
---------------------------------------------------------------------------

    \1\ In the proposed Implementation rule, EPA identified Federal 
RFG as an applicable requirement. (See proposed definition of 
``applicable requirement'' in draft regulatory text, availability of 
which was announced at 68 FR 46536, August 6, 2003.) In the final 
rule, however, EPA did not include RFG in the list of applicable 
requirements. EPA instead clarified that RFG is required under a 
Federal program, and thus differs significantly from the programs on 
the final list of applicable requirements, which are developed and 
adopted by States for inclusion in the state implementation plan 
(SIP). EPA recognized that various issues exist regarding the scope 
and applicability of the RFG program during and after implementation 
of the 8-hour ozone NAAQS that need further clarification. EPA 
stated that we were still considering how to treat RFG and that we 
would address these issues in an action separate from the Phase 1 
rule. Thus, EPA did not include RFG in the list of applicable 
requirements in the Phase 1 Rule, and EPA made no decision at that 
time concerning RFG treatment in the transition to the 8-hour NAAQS.
---------------------------------------------------------------------------

    In the June 2003 proposal for implementation of the 8-hour NAAQS, 
EPA defined the ``applicable requirements'' as those 1-hour control 
measures that applied in an area as of the effective date of the 8-hour 
designation for the area (for most areas, June 15, 2004). 68 FR 32821 
(June 2, 2003). The draft regulatory text, issued in August 2003, 
relied instead on those control measures in place on the date of 
revocation of the 1-hour NAAQS (for most areas, June 15, 2005). In the 
final rule, EPA defined applicable requirements as those control 
measures in place as of the date of signature of the Phase 1 rule, 
(i.e., April 15, 2004). EPA thereafter issued a final rule changing 
this date to the effective date of the 8-hour designations--for most 
areas this would be June 15, 2004. 70 FR 71612 (November 29, 2005). 
Thus, in the Phase 1 rule, EPA adopted an anti-backsliding approach and 
established a trigger date for determining which 1-hour control 
requirements continued to apply in an area after revocation of the 1-
hour NAAQS. Redesignation to attainment of the 1-hour NAAQS after this 
trigger date but prior to the revocation of the 1-hour NAAQS would not 
change which obligations remain applicable requirements.
    In the Phase 2 Implementation Rule, EPA specified that the nine 
original mandatory RFG covered areas, as well as mandatory ``bump up'' 
areas (described in the ``Background'' section below) that would no 
longer be classified as severe based solely on the revocation of the 1-
hour NAAQS, would remain covered areas at least until they are 
redesignated to attainment for the 8-hour NAAQS. EPA relied on an anti-
backsliding approach similar to that relied upon in the Phase 1 rule. 
69 FR 23857. (April 30, 2004). However, EPA did not address in that 
Phase 2 final rule whether RFG would continue to be required in bump-up 
areas that are designated nonattainment for the 8-hour NAAQS, but are 
no longer classified as severe based on a redesignation to attainment 
for the 1-hour NAAQS before revocation of the 1-hour NAAQS. EPA 
designated Atlanta as a marginal nonattainment area under the 8-hour 
ozone standard, 70 FR 34660 (June 15, 2005), and redesignated Atlanta 
from nonattainment to attainment for the 1-hour NAAQS, prior to 
revocation of the 1-hour NAAQS. 56 FR 56694 (November 6, 1991). Atlanta 
is the only covered area that falls within the scope of this proposal.

II. What Action Is EPA Taking?

    In this proposal, EPA addresses the issue of whether an area 
originally designated as a severe ozone nonattainment area under the 1-
hour standard as a result of failure to meet attainment deadlines, and 
which was then redesignated to attainment for the 1-hour standard prior 
to revocation of that standard, should remain an RFG covered area 
because it is designated as an ozone nonattainment area (marginal) for 
the 8-hour NAAQS. This involves interpretation of section 211(k)(10)(D) 
and consideration of the appropriate anti-backsliding approach under 
these circumstances.
    Under section 211(k)(5), RFG is required in any ``covered area.'' 
The term ``covered area'' is defined in section 211(k)(10)(D) as:

    [T]he 9 ozone nonattainment areas having a 1980 population in 
excess of 250,000 and having the highest ozone design value during 
the period 1987 through 1989 shall be ``covered areas'' for purposes 
of this subsection. Effective one year after the reclassification of 
any ozone nonattainment area as a severe ozone nonattainment area 
under section 181(b) of this title, such severe area shall also be a 
``covered area'' for purposes of this subsection.

    The second sentence of section 211(k)(10)(D) identifies areas that 
become covered areas because they have been reclassified as a severe 
area under CAA section 181(b). These are called ``bump-up'' areas. Five 
areas were reclassified to severe for the 1-hour NAAQS--Baton Rouge, 
Atlanta, Sacramento, San Joaquin Valley, and Washington, DC--(which was 
already an opt-in area). They became mandatory RFG covered areas one 
year after their reclassification as a severe area.
    The areas that are RFG covered areas based on the bump-up provision 
were designated as ozone nonattainment areas by operation of law at the 
time of the 1990 CAA amendments, and their bump-up to severe occurred 
by operation of law based on EPA's determination under section 181(b) 
that the areas failed to attain the 1-hour NAAQS by the applicable 
attainment

[[Page 36045]]

date. Thus, their reclassification to severe was not based on a 
determination that their air quality met the severe area ozone design 
value. Instead, reclassification was based on their failure to meet the 
applicable attainment date. The bump-up to severe has two effects--a 
later attainment date is set for the area, and a variety of additional 
control measures become mandatory for the area. The federal RFG program 
becomes a mandatory control measure in an area one year after the area 
is bumped up to a severe classification.
    EPA believes that section 211(k)(10)(D) is ambiguous on the issue 
of whether a bump-up area continues to be a covered area when it is no 
longer classified as severe. The text of the provision could be read to 
set the defining criteria as the occurrence of reclassification to 
severe, a historical fact that does not change based on subsequent 
changes in classification. It could also be read as identifying areas 
that are reclassified to severe, but as leaving unresolved what happens 
when they are no longer so classified. Given this ambiguity, EPA has 
discretion to determine whether bump-up areas should remain subject to 
the RFG program once they are no longer classified as severe and, if 
they may exit the program, to set appropriate criteria for doing so.
    EPA has already exercised its discretion under 211(k)(10)(D) with 
respect to bump-up covered areas that are no longer classified as 
severe based solely on revocation of the 1-hour NAAQS, and has 
specified that they must continue to use RFG after revocation of the 1-
hour NAAQS at least until they are redesignated to attainment for the 
8-hour NAAQS. 70 FR 71612 (November 29, 2005). This applies to all 
bump-up RFG areas other than Atlanta. For those areas, any of the 
reasonable choices for a trigger date (e.g., date of issuance of 8-hour 
designations, effective date of 8-hour designations, or date of 1-hour 
NAAQS revocation) would all lead to continued use of RFG. On each of 
those dates, the areas were designated as severe 1-hour ozone 
nonattainment areas and RFG was a mandatory federal requirement. Use of 
any of these trigger dates would mean that subsequent removal of the 
severe classification based on revocation of the 1-hr NAAQS would not 
change the obligation to use RFG. For further discussion of this 
approach, see 70 FR 71612 (November 29, 2005).
    Atlanta is unique among the bump-up areas in that it was 
redesignated to attainment for the 1-hour NAAQS prior to that 
standard's revocation. It has been designated nonattainment and 
classified as marginal for the 8-hour NAAQS. For Atlanta, the choice of 
a reasonable trigger date could make a difference in whether the 
requirement to use RFG would continue after revocation of the 1-hr 
NAAQS.
    EPA invites comment on the factors it should consider in exercising 
its discretion with respect to specifying RFG requirements for Atlanta. 
In interpreting section 211(k)(10)(D) and determining the kind of 
antibacksliding approach, including trigger date, that is appropriate 
regarding the requirement to use Federal RFG in Atlanta, EPA believes 
that it is appropriate to focus it's consideration on: (1) Current 8-
hour ozone designation, (2) the likely effect on ozone NAAQS 
attainment, and (3) the likely effect on the fuel infrastructure. EPA 
also believes it is appropriate to focus it's consideration on how 
these factors apply in Atlanta, as this proposed rule would determine 
the appropriate Federal RFG requirements for this one specific ozone 
nonattainment area, as compared to a general rule that is broadly 
applicable to many areas and many different types of control measures.
    EPA is inviting comment on two options for this covered area. Under 
the first option, the area would be required to use RFG at least until 
it is redesignated to attainment for the 8-hour NAAQS. The anti-
backsliding trigger date would be the same as that in the Phase 1 
implementation rule--the effective date of the 8-hour NAAQS 
designations. On that date Atlanta was a severe area, and the 
requirement to use RFG was mandatory, starting January 1, 2005, based 
on the area's 1-hour nonattainment classification. The subsequent 
redesignation to attainment of the 1-hr NAAQS would not change the 
continuing obligation to use RFG after revocation of the 1-hr NAAQS.
    This option would emphasize that the area is still an ozone 
nonattainment area notwithstanding its redesignation to attainment of 
the 1-hour NAAQS. Under the first option, EPA would exercise its 
discretion to require continued use of RFG in Atlanta, based on the 
area's continued status as an ozone nonattainment area under the 8-hour 
NAAQS. Atlanta would remain an RFG covered area at least until it is 
redesignated to attainment for the 8-hour NAAQS, along with the other 
bump-up areas addressed in the related RFG final rule. 70 FR 71612 
(November 29, 2005). For further discussion of this approach, see 70 FR 
71612 (November 29, 2005).
    Under the second option, the trigger date for Atlanta would be the 
date of revocation of the 1-hour NAAQS. The use of this trigger date 
would mean that if RFG was a mandatory obligation on that date, then 
the obligation would continue after revocation of the 1-hour NAAQS. If 
RFG was not a mandatory obligation on that date then it would not 
continue after the date of revocation. Hence the primary issue under 
this option would be whether RFG should be considered a mandatory 
obligation as of the trigger date.
    As noted above, section 211(k)(10)(D) and the Act are ambiguous on 
whether the obligation to use RFG would continue to apply as of this 
trigger date, since the prior redesignation to attainment for the 1-
hour NAAQS means the area was no longer classified as a severe area as 
of that date. The issue is not whether a requirement that applied on 
the trigger date should continue to apply after revocation, but whether 
this specific federal requirement would or would not apply on the 
trigger date. To the extent this issue could be seen as overlapping 
with the more general issue of having an anti-backsliding approach, EPA 
believes the indicia of Congressional intent on how to resolve this 
issue under section 211(k)(10)(D) are ambiguous.
    Under this second option, EPA would exercise its discretion and 
resolve the ambiguity by allowing the RFG requirement to stop for the 
Atlanta area, based on the removal of the severe classification upon 
redesignation to attainment for the 1-hour NAAQS. EPA would condition, 
this however, on the State requesting such removal of RFG and 
demonstrating that removal would not result in a loss of emissions 
reductions relied upon in the ozone state implementation plan 
(``SIP'').
    This second option would place somewhat more emphasis on 
flexibility for the State in determining whether this Federal ozone 
related control measure should apply in the area, for the following 
reasons. The only area to which this proposal would apply is Atlanta, 
which is currently implementing a state low sulfur, low RVP fuel 
control measure that has been approved into its SIP.\2\ The removal of 
Atlanta as an RFG covered area would

[[Page 36046]]

simplify the tasks confronting the fuel refining and distribution 
system, as new fuel that meets both the state fuel requirements and the 
Federal RFG requirements would not need to be produced and 
distributed.\3\ This would directionally reduce the burden on a fuel 
infrastructure system that has been tasked to meet several new Federal 
fuel requirements adopted over the last few years. In addition, this 
option acknowledges the significant progress Atlanta has made in 
reducing ozone levels and attaining the 1-hour NAAQS, and the fact that 
Atlanta's significant progress in reducing ozone levels has occurred 
without the use of RFG. Because the option requires a demonstration 
that dropping the RFG requirement will not lead to a loss in emissions 
reductions relied upon in the SIP, this option should not adversely 
affect Atlanta's SIP planning for future attainment of the 8-hour 
standard.\4\
---------------------------------------------------------------------------

    \2\ In an effort to limit the number of different types of state 
fuels required around the country and thus, increase fungibility of 
fuels, the Energy Policy Act of 2005 (EPAct), included a ``boutique 
fuels'' provision. The provision requires EPA to publish a list of 
the ``total number of fuels'' approved into SIPs as of September 1, 
2004, and, importantly, limits EPA's future fuel approvals for a 
state to a fuel that is already in use in their Petroleum for 
Administration Defense District. The Georgia State fuel program was 
included on the list that EPA published for approval, 71 FR 32532, 
(June 6, 2006), and thus the Georgia fuel would not be limited by 
the EPAct boutique fuel listing provisions.
    \3\ Although the deadline has passed for Atlanta to have begun 
using RFG as a result of its redesignation to severe nonattainment 
for the 1-hour standard on September 26, 2003, 68 FR 55469 
(September 26, 2003), that requirement has been stayed pending 
appeal of a district court decision affirming the RFG requirement in 
State of Georgia v. Leavit, No. 04-2778-CC (N.D. Ga., Atlanta Div.).
    \4\ If EPA selected this option for purposes of the final rule, 
and compliance with the conditions could be determined as of that 
date, then EPA could proceed to adopt a final rule that reflected 
these circumstances.
---------------------------------------------------------------------------

    EPA believes it has discretion in choosing the appropriate trigger 
date for purposes of anti-backsliding. The use of the date of 
revocation of the 1-hr NAAQS as the trigger date under this option 
would not raise the SIP planning concerns that led to rejection of this 
as an appropriate trigger date for the Phase 1 rule. EPA rejected the 
date of revocation as a trigger date for the Phase 1 rule because it 
would interfere with SIP planning, especially for areas required to 
submit SIP plans by the date of revocation. 70 FR 5596 (February 3, 
2005) Here, the date of revocation has already passed. In addition, 
Atlanta has demonstrated attainment of the 1-hour NAAQS without relying 
on the use of RFG and there are no indications that the second option 
would interfere with Atlanta's SIP planning for attainment of the 8-
hour NAAQS.

III. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, 58 FR 51,735 (October 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 entitlements, 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.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. EPA has submitted this action to 
OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Paperwork Reduction Act

    This proposed rule would not add any new requirements involving the 
collection of information as defined by the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. The Office of Management and Budget has approved 
the information collection requirements contained in the final RFG/
antidumping rulemaking (see 59 FR 7716, February 16, 1994) and has 
assigned OMB control number 2060-0277 (EPA ICR No. 1951.08). If EPA 
finalizes the option that would require continued use of RFG in 
Atlanta, the rule would merely continue a pre-existing legal 
requirement, and would impose no new information collection 
requirements. If EPA finalizes the option of removing the RFG 
requirement for Atlanta, there would be a reduction in information 
collection requirements.
    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. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that has not 
more than 1,500 employees (13 CFR 121.201); (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.
    Based on the definition of a small entity as outlined above, EPA 
has identified approximately 26 small entities that could potentially 
be impacted by this proposal. If EPA finalizes the option that would 
require continued use of RFG in Atlanta, the rule would merely continue 
a pre-existing legal requirement, and would impose no new costs. If EPA 
finalizes the option of removing the RFG requirement for Atlanta, this 
option would lead to a reduction in costs.
    After considering the economic impacts of today's proposed rule on 
small entities, I hereby certify, that this action will not have a 
significant economic impact on a substantial number of small entities 
insofar as the proposed rule, when promulgated, will either continue an 
existing statutory requirement or will provide relief from the 
requirement. This proposed rule will not impose any additional 
requirements on small entities. We continue to be interested in the 
potential impacts of the proposed rule on small entities and welcome

[[Page 36047]]

comments on issues related to such impacts.

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, 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 
1 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 potentially 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.
    If finalized, this proposal would contain no new enforceable duty 
that may result in expenditures to entities of concern under UMRA of 
$100 million or more in one year. If EPA finalizes the option that 
would require continued use of RFG in Atlanta, the rule would merely 
continue a pre-existing legal requirement, and would impose no new 
costs. If EPA finalizes the option of removing the RFG requirement for 
Atlanta, this option would lead to a reduction in costs, and would not 
trigger UMRA requirements. Although EPA does not believe that UMRA 
imposes requirements for this rulemaking, EPA notes that the 
environmental and economic impacts of the RFG program were assessed in 
EPA's Regulatory Impact Analysis for the 1994 RFG rules.
2. Executive Order 13132 (Federalism)
    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires us to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.
    Under Section 6 of Executive Order 13132, we may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or we consult 
with state and local officials early in the process of developing the 
proposed regulation. We also may not issue a regulation that has 
federalism implications and that preempts state law, unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt state or local law, even if those rules do not 
have federalism implications (i.e., the rules will not have substantial 
direct effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government). Those 
requirements include providing all affected state and local officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, we also must consult, to the 
extent practicable, with appropriate state and local officials 
regarding the conflict between state law and federally protected 
interests within the Agency's area of regulatory responsibility.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. One of the proposed options 
would only impose requirements on certain refiners and other entities 
in the gasoline distribution system, and not on States. The 
requirements of the proposed 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 proposed rule.
3. 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 proposed 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 proposed rule does not create a mandate for any tribal government. 
The rule would not impose any enforceable duties on these entities. 
Rather, the rule would affect only those refiners, importers or 
blenders of gasoline that choose to produce or import RFG for sale in 
the nonattainment areas addressed in the proposed rule, and the 
gasoline distributors and retail stations in those areas. Thus, 
Executive Order 13175 does not apply to this proposed rule.

E. 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

[[Page 36048]]

Order 12866, and (2) concerns an environmental health or safety risk 
that we have reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, section 5-501 
of the Executive Order directs us to evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by us.
    This proposed rule is not subject to the Executive Order because it 
is not an economically significant regulatory action as defined by 
Executive Order 12866. Furthermore, this proposed rule does not concern 
an environmental health or safety risk that we have reason to believe 
may have a disproportionate effect on children.

F. Executive Order 13211: Energy Effects

    This proposed 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.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to 
use voluntary consensus standards in our regulatory activities unless 
it would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) developed or adopted by voluntary consensus standards 
bodies. The NTTAA directs us to provide Congress, through OMB, 
explanations when we decide not to use available and applicable 
voluntary consensus standards. This proposed rulemaking does not 
involve technical standards. Therefore, EPA is not considering the use 
of any voluntary consensus standards.

IV. Statutory Provisions and Legal Authority

    Statutory authority for the fuel controls in today's proposed rule 
comes from CAA section 211(k) (42 U.S.C. 7545(k)), directing EPA to 
issue regulations regarding the use of reformulated gasoline, and 
section 211(c) of the CAA (42 U.S.C. 7545(c)), which allows us to 
regulate fuels that either contribute to air pollution which endangers 
public health or welfare or which impair emission control equipment.

List of Subjects in 40 CFR Part 80

    Environmental protection, Fuel additives, Gasoline, Imports, 
Labeling, Motor vehicle pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: June 16, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-5620 Filed 6-22-06; 8:45 am]

BILLING CODE 6560-50-P
