Regulation of Fuel and Fuel Additives: Reformulated Gasoline Requirements for the Atlanta Covered Area |
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Gina McCarthy
Environmental Protection Agency
March 14, 2014
[Federal Register Volume 79, Number 50 (Friday, March 14, 2014)]
[Rules and Regulations]
[Pages 14410-14418]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05697]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2006-0318; FRL-9907-91-OAR]
RIN 2060-AN63
Regulation of Fuel and Fuel Additives: Reformulated Gasoline
Requirements for the Atlanta Covered Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this final rule, the Environmental Protection Agency (EPA)
has determined that the Atlanta metro area is not a federal
reformulated gasoline (RFG) covered area and, therefore, that there is
no requirement to use RFG in the Atlanta area. Atlanta is the only RFG
covered area formerly classified as a severe ozone nonattainment area
under the 1-hour ozone National Ambient Air Quality Standard that was
redesignated to attainment for that standard before its revocation, and
at a time when it was designated as nonattainment for the 8-hour ozone
standard with a classification less than severe. EPA has determined
that the statute is ambiguous as to whether RFG is required in this
situation. EPA believes that the comprehensive planning conducted by
the State through the SIP process, the array of regulatory tools at the
State's disposal, and the current limited emissions benefits of RFG in
Atlanta as compared to the current state fuel (as explained elsewhere
in the document) indicate that it would be appropriate to interpret the
relevant statutory language to not require RFG use in Atlanta.
DATES: This final rule is effective March 14, 2014
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2006-0318. All documents in the docket are listed on the
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., 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 through
www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA
West, Room 3334, 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.
FOR FURTHER INFORMATION CONTACT: Kurt Gustafson, Office of
Transportation and Air Quality, mailcode 6406J, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC. 20460;
telephone number: 202-343-9219; fax number 202-343-2800; email 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 examine carefully
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.
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Examples of potentially
Category NAICS codes \a\ SIC codes \b\ regulated entities
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Industry.................................... 324110 2911 Petroleum Refiners.
Industry.................................... 422710 5171 Gasoline Marketers and
422720 5172 Distributors.
Industry.................................... 484220 4212 Gasoline Carriers.
484230 4213
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.
Outline of This Preamble
I. Background
A. The Ozone National Ambient Air Quality Standard and State
Implementation Plans
B. Reformulated Gasoline
C. Transition from the 1-Hour Ozone to the 1997 8-Hour Ozone
NAAQS
D. Legal History of the RFG Requirement in Atlanta
E. Proposed Options
II. Evaluation of the Emission Benefits Provided by RFG
III. Quantifying the Difference in VOC Benefits Between RFG and
Conventional Gasoline
IV. Proposed Options To Address Whether Atlanta Remains a Federal
RFG Covered Area
V. Public Comment Summary.
VI. What action is EPA taking?
VII. Application of This Interpretation to the Atlanta Area
VIII. Statutory and Executive Order Reviews
I. Background
Based on the Atlanta metropolitan area's failure to achieve the 1-
hour ozone standard according to a statutorily-prescribed deadline, the
area was reclassified as a severe ozone nonattainment area and required
to use RFG. However, as a result of pending legal proceedings, RFG has
never been implemented in Atlanta, and Atlanta has not relied on
emissions reductions from federal RFG in its EPA-approved ozone SIP. In
the interim, the air quality in Atlanta has improved; due in part to
various control strategies in place as well as vehicle fleet changes,
and EPA has redesignated the area as in attainment with both the 1-hour
and 1997 8-hour ozone standards. Atlanta is currently designated a
marginal nonattainment area under the 2008 8-hour ozone standard.
Although the Clean Air Act clearly imposes the obligation to use RFG on
areas one year after they are reclassified as a severe nonattainment
area, it is ambiguous as to when such RFG covered areas may discontinue
use of RFG. The State has sought through a petition to EPA and
associated litigation to avoid the implementation of the RFG program in
Atlanta following classification of the area as a severe nonattainment
area under the one-hour ozone standard. The RFG requirement has been
stayed pending resolution of the litigation, and during the time that
Atlanta was
[[Page 14411]]
redesignated to attainment for the one-hour ozone standard. The State
has an approved State Implementation Plan (SIP) that has not relied on
RFG benefits and a SIP-approved fuel program that achieves all of the
nitrogen oxides (NOX), toxics, and 98.4% of the volatile
organic compound (VOC) benefits provided by the RFG program. After
considering a number of factors, including the benefits of using RFG
rather than the SIP-approved low-RVP ``Georgia gas,'' EPA has
interpreted the statutory provisions and concluded that Atlanta is not
required to use RFG.
A. The Ozone National Ambient Air Quality Standard and State
Implementation Plans
EPA has set National Ambient Air Quality Standards (NAAQS) for six
principal pollutants, including ozone. After establishing a NAAQS, EPA,
based on recommendations from the States, designates areas as either in
attainment with the NAAQS, in nonattainment with the NAAQS, or as
unclassifiable. The CAA (or Act) also specifies that ozone
nonattainment areas are to be further classified at the time of
designation as marginal, moderate, serious, severe or extreme, based on
the severity of the air quality in the area. Section 110(a)(2) of the
Act requires each State to adopt, and EPA to review and approve, a
State Implementation Plan (SIP) that identifies how that State will
attain and/or maintain each NAAQS, such as the ozone NAAQS.
Specifically, SIPs must identify control measures and strategies that
demonstrate how each area will attain and maintain the NAAQS. These
plans are developed through a public process, formally adopted by the
State, and submitted by the Governor's designee to EPA. The CAA
requires EPA to review each plan and any plan revisions in a public
process and to approve or disapprove them.
The contents of a typical SIP fall into several categories: (1)
State-adopted control measures which consist of rules/regulations,
source-specific requirements (e.g., orders and consent decrees) and
other control obligations; (2) State-submitted comprehensive air
quality plans, such as attainment plans, maintenance plans, and rate of
progress plans, demonstrating how these state regulatory and source-
specific controls, in conjunction with federal programs, will bring
and/or keep air quality in compliance with federal air quality
standards; (3) State-submitted ``non-regulatory'' requirements, such as
emission inventories, small business compliance assistance programs;
demonstrations of legal authority, monitoring networks, etc.; and (4)
additional requirements promulgated by EPA (in the absence of a
commensurate State provision) to satisfy a mandatory section 110 or
part D (Clean Air Act) requirement.
B. Reformulated Gasoline
The 1990 amendments to the CAA directed EPA to issue regulations
that specify how gasoline can be ``reformulated'' so as to result in
significant reductions in vehicle emissions of ozone-forming and toxic
air pollutants relative to a 1990 baseline fuel, and to require the use
of such reformulated gasoline in certain ``covered areas.'' In
addition, some other areas with ozone levels exceeding the ozone NAAQS
may opt-in to the federal RFG program, and several areas have done so.
The term ``covered area'' is defined in section 211(k)(10)(D) as
follows:
[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
ozone nonattainment 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
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 ozone NAAQS by the applicable 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.
C. Transition From the 1-Hour Ozone to the 8-Hour Ozone NAAQS
Today's rule follows from previous EPA action in replacing the 1-
hour ozone standard with a more protective 8-hour ozone NAAQS. See 69
FR 23951 (April 30, 2004).\1\ EPA has issued two rules that clarify the
extent to which CAA obligations that existed under the 1-hour ozone
standard continue in effect under the 8-hour NAAQS. These rules are the
Phase 1 implementation rule, 69 FR 23951 (April 30, 2004), and the
Phase 2 implementation rule. See 70 FR 71612 (November 29, 2005).
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\1\ Subsequent to the publication of the 1997 8-hour ozone
NAAQS, EPA revised and established a new 8-hour ozone NAAQS on March
27, 2008 (hereafter referred to as the 2008 8-hour ozone NAAQS). See
73 FR 16436.
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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, it identified the time at which the 1-hour ozone
NAAQS would be revoked (i.e., no longer apply). Second, it identified
the extent to which certain regulatory requirements related to 1-hour
ozone NAAQS attainment status would apply after transition to the 8-
hour NAAQS. On the first issue, EPA decided that the 1-hour ozone 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 ozone NAAQS. For most areas, which were
designated effective June 15, 2004, that means the 1-hour ozone NAAQS
and the related designation and classification no longer applied as of
June 15, 2005. On the second issue, the approach, generally referred to
as ``anti-backsliding,'' 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 ozone NAAQS (the ``trigger date'') remain
subject to mandatory control measures that applied by virtue of the
area's classification for the 1-hour ozone 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. Thus, in the Phase 1
rule, EPA adopted an anti-backsliding approach and established a
trigger date for determining which 1-
[[Page 14412]]
hour ozone control ``applicable requirements'' continued to apply after
revocation of the 1-hour ozone NAAQS. RFG is not a SIP ''applicable
requirement'' addressed by the Phase I rule, so the rule did not
resolve the extent to which RFG requirements related to 1-hour ozone
classifications would apply after the transition to the 8-hour ozone
standard.
In the Phase 2 Ozone Implementation Rule, EPA interpreted section
211(k)(10)(D) as requiring that the nine original mandatory RFG covered
areas (those identified by reference to their 1980 population and their
1987-1989 ozone design value) remain covered areas, and thus are
required to use RFG, at least until they are redesignated to attainment
for the 8-hour ozone NAAQS. EPA explained that the statute identifies
these areas as covered areas by virtue of historical facts that are not
altered by EPA's transition to the 8-hour ozone standard, and that they
will continue to be ``ozone nonattainment areas'' until they are
redesignated to attainment for the 8-hour ozone NAAQS. Thus they will
continue to meet the definition of covered area at least until they are
redesignated to attainment for the 8-hour ozone NAAQS. See 70 FR 71612,
71685 (November 29, 2005).
In the Phase 2 rule EPA also identified two distinct types of areas
that had been reclassified or ``bumped-up'' to severe for the 1-hour
ozone standard prior to revocation of that standard: (1) Those that
lost their classification as severe ozone nonattainment areas solely as
a result of the revocation of the 1-hour ozone NAAQS and classification
at a lower classification (e.g., subpart 1, marginal, moderate or
serious) under the new 8-hour ozone NAAQS; and (2) those that lost
their severe classification through redesignation to attainment for the
1-hour NAAQS prior to revocation of that standard. EPA explained that
section 211(k)(10)(D) is ambiguous on the issue of whether and how long
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 determined
that it had the discretion to determine whether section 211(k)(10)(D)
authorizes removal of a bump-up area from the RFG program in the two
different situations when such a bump-up area is no longer classified
as severe. EPA decided in the phase 2 rule that those bump-up areas
that lost their severe status solely as a result of revocation of the
1-hour ozone NAAQS and classification at a lower classification under
the 8-hour ozone standard would remain covered areas at least until
they are redesignated to attainment for the 8-hour ozone NAAQS. In
making this decision EPA relied on an antibacksliding approach similar
to that relied upon in the Phase 1 rule. See 69 FR 23857. (April 30,
2004).\2\ However, EPA did not address in the Phase 2 rule whether RFG
would continue to be required in bump-up areas that lost their severe
status as a result of redesignation to attainment for the 1-hour ozone
NAAQS before revocation of the 1-hour ozone NAAQS, and which are
classified at a lower classification than severe under the 8-hour ozone
NAAQS. Atlanta was the only such area. EPA designated Atlanta as a
marginal nonattainment area under the 1997 8-hour ozone standard, 70 FR
34660 (June 15, 2005), and redesignated Atlanta from nonattainment to
attainment for the 1-hour ozone NAAQS, prior to revocation of the 1-
hour ozone NAAQS. See 56 FR 56694 (November 6, 1991). EPA subsequently
redesignated Atlanta to attainment for the 1997 8-hour standard. See 78
FR 72040 (December 2, 2013). Atlanta is currently designated marginal
nonattainment for the 2008 8-hour ozone NAAQS.
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\2\ One of the bump-up areas that EPA determined in the Phase 2
rule should continue to use RFG at least until redesignation to
attainment for the 8-hour ozone NAAQS was Baton Rouge. This area was
subsequently redesignated to attainment for the 8-hour NAAQS and,
for reasons set forth in a determination dated April 23,2012, EPA
issued an interpretive rule specifying that it was no longer
required to use RFG.
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D. Legal History of the RFG Requirement in Atlanta
As explained above, 13 counties in the Atlanta 1-hour ozone
nonattainment area became an RFG covered area when Atlanta was
reclassified as a severe ozone nonattainment area on January 1, 2004.
Atlanta was required under the statute to begin using RFG on January 1,
2005. In August 2004, Georgia petitioned EPA to waive the RFG
requirement for Atlanta, based on ``absurd results'' (NOx impact
leading to increased ozone). In September, 2004, EPA denied Georgia's
petition on grounds that expected adverse impacts were related to
ethanol in RFG. The State had not requested a waiver of the RFG oxygen
content requirement, and EPA determined that it lacked authority to
waive the entire RFG requirement in this situation. Georgia then filed
two lawsuits related to RFG in Atlanta. First, Georgia alleged in U.S.
District Court that EPA must conduct a conformity analysis prior to RFG
taking effect in Atlanta. The court denied Georgia's motion for a
preliminary injunction, but the State appealed this ruling to the
United States Court of Appeals for the 11th Circuit, and the District
Court granted the State's request for a stay of the RFG requirement
pending appeal. Second, the State challenged EPA's denial of its RFG
waiver request in the 11th Circuit. While this litigation was ongoing,
Atlanta was redesignated to attainment for the 1-hour ozone standard,
on June 14, 2005, before that standard was revoked on June 15, 2005. At
that time Atlanta was classified as marginal under the new 1997 8-hour
ozone standard. All actions in the 11th Circuit Court of Appeals were
stayed, at the parties' request, to allow EPA and the State to consider
the impact of the Energy Policy Act of 2005 (revoking the RFG oxygen
content requirement but also requiring a broader program for increasing
use of renewable fuels throughout the U.S.) and Atlanta's redesignation
to attainment of the 1-hour ozone standard prior to its revocation. The
judicial stay of the RFG requirement in Atlanta remains in place during
the stay of the litigation. As a result of these proceedings, RFG has
never been implemented in Atlanta, and Atlanta has not relied on
emissions reductions from federal RFG in its SIP.
E. Proposed Options
In our proposed rulemaking of June 23, 2006 (71 FR 36042), EPA
sought comment on two alternative proposals regarding reformulated
gasoline requirements for Atlanta. In the time since we published the
proposal, a number of factors have transpired which are taken into
account in today's action. When Georgia first sought a waiver of the
RFG program, the fuel used to meet the Georgia gas SIP requirements did
not contain ethanol, but virtually all RFG was being blended with 10%
ethanol. The renewable fuels program initiated by Congress in the 2005
Energy Policy Act, and enhanced in the Energy Independence and Security
Act of 2007, requires that transportation fuel contain volumes of
renewable fuel, including ethanol, that are defined for each calendar
year and increase over time to 36 billion gallons in 2022. As a result
of implementing the RFS program, ethanol is now being blended into
virtually all gasoline (RFG and conventional) throughout the US,
including the
[[Page 14413]]
Atlanta market. In addition, EPA also updated the modeling tools to
incorporate the most up-to-date emission information into the release
of Motor Vehicle Emissions Simulator (MOVES) model. This allowed EPA to
run the MOVES model to estimate the difference in emissions between RFG
and Georgia gas. More importantly, since the time that the proposal was
published, the Atlanta area has been able to achieve attainment with
the 1997 8-hour ozone standard without ever having implemented RFG.
At the time of the proposed rule, Atlanta was classified as
marginal nonattainment for the 1997 8-hour NAAQS. On December 2, 2013
EPA reclassified Atlanta to attainment for the 1997 8-hour standard.
However, Atlanta is currently classified as marginal nonattainment
under the 2008 8-hour standard. Thus, the issue for resolution in
today's rule is the same as at the time of proposal--the extent to
which an area formerly classified as a severe nonattainment area under
the 1-hour standard must continue to be an RFG covered area if it was
reclassified to attainment before the 1-hour standard was revoked and
is classified as less than severe under the 8-hour ozone NAAQS. Under
the first option for which EPA sought comment, Atlanta would be
required to use federal reformulated gasoline (RFG) at least until it
is redesignated to attainment for the 8-hour ozone NAAQS. The anti-
backsliding trigger date would be the same as that in the Phase 1
implementation rule--the effective date of the 1997 8-hour ozone NAAQS
designations. On that date Atlanta was classified as a severe area for
the 1-hour ozone NAAQS, and the requirement to use RFG was mandatory,
starting January 1, 2005, based on that classification. The subsequent
redesignation to attainment of the 1-hr ozone NAAQS would not change
the continuing obligation to use RFG after the trigger date. Under the
second option, which EPA is finalizing today, 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 for
ozone. The trigger date for Atlanta under this second option would be
the date of revocation of the 1-hour ozone 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) of the Act is 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 ozone 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. These options
are described in more detail in Section III of this preamble.
II. Evaluation of the Emissions Benefits Provided by RFG
The CAA, as amended in 1990, mandated certain requirements for the
reformulated gasoline program. The Act specified that during 1995
through 1999 (Phase I RFG), for volatile organic compounds (VOC) and
toxics, RFG must comply with the more stringent of either a set of
formulas or an emission reductions performance standard, measured on a
mass basis, equal to 15 percent reduction from baseline emissions.
Baseline emissions were the emissions of 1990 model year vehicles
operated on a specified baseline gasoline. The Act also mandated
compositional specifications for RFG which included a 2.0 weight
percent oxygen minimum and a 1.0 volume percent benzene maximum. For
the year 2000 and beyond (Phase II RFG), the Act specified that RFG
must comply with the more stringent of a set of formulas or VOC and
toxic pollutant performance standards providing for a 25 percent
reduction from baseline emissions. EPA adopted the RFG requirements in
40 CFR 80.40 through 80.70. The original Phase II emission reductions
required specified percentage reductions of RFG relative to the 1990
statutory baseline, as noted below: \3\
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\3\ 59 FR 7716 (February 16, 1994). The percentage reductions
reflect a comparison of emissions performance of a vehicle with
1990's type emission control technology using RFG and emissions
performance of the same vehicles using 1990 average conventional
gasoline. EPA subsequently amended the regulations to require
somewhat less stringent summertime VOC requirements in the Chicago
and Milwaukee ozone nonattainment areas. 66 FR 37156 (July 17,
2001).
Complex Model Emission Performance Reduction \4\
------------------------------------------------------------------------
Summertime VOC Region 1 Region 2
------------------------------------------------------------------------
Per gallon....................... 27.5.............. 25.9
Averaging........................ 29.0.............. 27.4
Minimum.......................... 25.0.............. 23.4
------------------------------------------------------------------------
NOX \5\
------------------------------------------------------------------------
Per gallon....................... 5.5............... 5.5
Averaging........................ 6.8............... 6.8
Minimum.......................... 3.0............... 3.0
------------------------------------------------------------------------
Toxics
------------------------------------------------------------------------
Per gallon....................... 20................ 20
Averaging........................ 21.5.............. 21.5
------------------------------------------------------------------------
Benzene \6\
------------------------------------------------------------------------
Per gallon....................... 1.0............... 1.0
Averaging........................ .95/1.3 per g max. .95/1.3 per g max
------------------------------------------------------------------------
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\4\ The complex model reductions refer to VOC control Regions 1
and 2. The geographic scope of these regions is defined in 40 CFR
80.71 For the most part, Region 1 refers to the south and west and
Region 2 refers to the upper midwest and northeast.
\5\ A NOX performance standard was not required for
RFG under CAA section 211(k); however, EPA added this requirement
under the general authority provided by section 211(c), as part of
the RFG program.
\6\ The benzene standards are in terms of a volume percent of
the fuel, not a percent emissions reduction.
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A. Subsequent Regulatory Changes
1. Changes to Gasoline
Since the RFG standards were implemented, there have been a number
of important changes to gasoline controls. Perhaps the most significant
of these was implementation of the Tier 2 gasoline sulfur standards. 65
FR 6698 (Feb. 10, 2000). In addition, in 2007 EPA adopted the Mobile
Source Air Toxics (MSAT) rule. Beginning in 2011, the MSAT rule
required refiners to meet a benzene content standard on all their
gasoline, both reformulated and conventional, nationwide. 72 FR 8431
(February 26, 2007). In this rule EPA also removed the NOX
performance requirements from the RFG program regulations. 72 FR 8498
(February 26, 2007); 40 CFR 80.41(e)(2). Finally, in the Energy Policy
Act of 2005 Congress modified the requirements for RFG by removing the
requirement that it contain oxygenate and replaced it with a mandate
that gasoline nationwide contain increasing volumes of renewable fuels.
The result of all these actions is that now the requirements for
federal RFG and conventional gasoline (CG) with respect to
NOX, toxics
[[Page 14414]]
emissions performance and renewable fuel content are essentially the
same.
2. Changes to Vehicle Standards
Since Congress mandated the RFG program through the 1990 CAA
Amendments, there have also been a number of important changes to
vehicle emission standards. In 1993, EPA promulgated the enhanced
evaporative emission standards which reduced the impact of changes in
fuel volatility, or RVP, on evaporative emissions (i.e. VOCs including
toxics). See 58 FR 16002 (March 24, 1993). This was followed in 2000
with Tier 2 vehicle standards which not only further reduced
evaporative emissions, but also reduced exhaust emissions by an order
of magnitude. See 65 FR 6698 (February 10, 2000). The result is that
the percent reduction standards for RFG based on the response of 1990
technology vehicles to fuel changes compared to 1990 gasoline are not
relevant to today's fleet of vehicles or those in the future.
Furthermore, while fuels may still have a significant percentage impact
on vehicle emissions in the future, the magnitude of the impact is much
smaller than at the time the CAA was amended in 1990. As a result, the
magnitude of the emissions reductions associated with the use of RFG is
much smaller now than in the past.
B. Summertime VOC Performance of RFG
Several regulatory requirements directly or indirectly limit the
RVP level in reformulated and conventional gasoline supplied during
late spring and summer, when ozone is of most concern. In 1989, EPA
promulgated regulations that set maximum limits for the RVP of gasoline
sold during the summer ozone control season--June 1st to September
15th. These regulations were referred to as Phase I of a two-phase
nationwide program, which was designed to reduce the volatility of
commercial gasoline during the summer ozone control season. See 54 FR
11868 (March 22, 1989). In 1990, EPA promulgated more stringent
volatility controls under Phase II of the program. See 55 FR 23658
(June 11, 1990). These requirements established maximum RVP standards
of 9.0 psi or 7.8 psi, depending on the State, and the month.
The 1990 amendments of the CAA mandated certain requirements for
both summertime fuel volatility and the reformulated gasoline program.
The amendments established a new provision, section 211(h), addressing
gasoline volatility. Section 211(h) requires EPA to promulgate
regulations making it unlawful to sell, offer for sale, dispense,
supply, offer for supply, transport, or introduce into commerce
gasoline with an RVP level in excess of 9.0 psi during the ozone
control season. It further requires EPA to establish more stringent RVP
standards in nonattainment areas if we find such standards ``necessary
to generally achieve comparable evaporative emissions (on a per vehicle
basis) in nonattainment areas, taking into consideration the
enforceability of such standards, the need of an area for emission
control, and economic factors.'' Section 211(h) prohibits EPA from
establishing a volatility standard more stringent than 9.0 psi in an
attainment area, except that we may impose a lower (more stringent)
standard in any former ozone nonattainment area redesignated to
attainment. In 1991, EPA modified the Phase II volatility regulations
to be consistent with section 211(h) of the CAA. See 56 FR 64704
(December 12, 1991).
The 1990 amendments also established requirements that RFG achieve
increased control of emissions of VOC during the summertime ozone
season. For the year 2000 and beyond, EPA established summertime VOC
performance standards as specified in the Table in Section II.B above.
In addition to the two Federal fuel programs that regulate summertime
VOC emissions under sections 211(h) and 211(k), the CAA also provides a
limited mechanism under section 211(c) for States to establish more
stringent fuel standards. EPA has approved several State low volatility
gasoline programs under this authority.
Although the volatility regulations at 40 CFR 80.27 applies to RFG
as well as CG, the RFG regulations effectively require RVP levels below
those required under the section 211(h) RVP regulations. Under the RFG
regulations, refiners and importers must designate RFG produced or
imported for use during the summertime VOC control period as VOC-
controlled, and all other RFG as non-VOC-controlled. The RVP in the
VOC-controlled RFG supplied since 1998 is effectively controlled
through the VOC emissions performance standards. While other gasoline
parameters also affect VOC emission performance (as determined by the
Complex Model that is used in the RFG program), RVP reduction from the
statutory baseline is by far the primary means to achieve the VOC
reduction standards, particularly with the more recent gasoline sulfur
and oxygenate changes to gasoline. Hence, the VOC performance standards
effectively limit RVP in RFG. As a result, the RFG emissions
performance standards not only constrain average RVP levels below those
permitted by the more general volatility regulations, but generally
constrain maximum RVP levels as well.
III. Quantifying the Difference in VOC Benefits Between RFG and
Conventional Gas
EPA conducted emissions modeling using the MOtor Vehicle Emission
Simulator (MOVES) \7\ to estimate the difference in VOC emissions from
RFG relative to the typical CG that it would replace in Atlanta. EPA's
fuel property database was used to develop a CG fuel formulation to
represent GA gasoline.\8\ In this modeling the VOC emissions estimates
represent the 2013 ozone season and EPA used national level default
runs with inputs focused on fuel property changes.
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\7\ This emission model developed by the Office of
Transportation and Air Quality estimates emissions for mobile
sources covering a broad range of pollutants and allows multiple
scale analysis. MOVES is used to estimate emissions from cars,
trucks and motorcycles. MOVES2010b is the latest version of MOVES
and incorporates new features and a number of performance
improvements compared to previous versions.
\8\ Since actual in-use fuel varies in its constituents within
allowable regulatory tolerances there is no one correct formulation
even for Georgia gasoline. EPA's database of fuel properties was
therefore the best available source of fuel constituencies to
represent typical Georgia CG .
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From this MOVES modeling approach, EPA determined that RFG would
achieve a 1.58 percent greater reduction in VOC emissions performance
during the summer ozone season (June 1 to September 15) compared to the
Georgia SIP fuel program, i.e. Georgia gas.\9\
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\9\ There is no VOC performance requirement for RFG outside of
the summer ozone season; for those time periods RFG and CG would be
expected to have similar VOC performance.
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IV. Proposed Options To Address Whether Atlanta Remains a Federal RFG
Covered Area
As mentioned above, EPA sought comment on two options for the
Atlanta covered area via the proposed rulemaking. Under the first
option, the Area would be required to use RFG at least until it is
redesignated to attainment for the 8-hour ozone NAAQS. The anti-
backsliding trigger date would be the same as that in the Phase 1
implementation rule--the effective date of the 1997 8-hour ozone NAAQS
designations. On that date Atlanta was classified as a severe area for
the 1-hour ozone NAAQS, and the requirement to use RFG was mandatory,
starting January 1, 2005, based on that classification. The subsequent
redesignation to attainment of the 1-hr
[[Page 14415]]
ozone NAAQS would not change the continuing obligation to use RFG after
the trigger date. . This option would emphasize that the area is still
an ozone nonattainment area notwithstanding its redesignation to
attainment of the 1-hour ozone NAAQS.\10\ 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 ozone NAAQS. Atlanta would remain an RFG covered
area at least until it is redesignated to attainment for the 8-hour
ozone NAAQS. This approach is consistent with the approach adopted in
the Phase 2 implementation final rule for other areas that were bumped-
up to severe but were not redesignated to attainment for the 1-hour
ozone NAAQS prior to revocation of that standard. See 70 FR 71612
(November 29, 2005).
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\10\ At the time of the proposed rule, Atlanta was classified as
marginal nonattainment for the 1997 8-hour NAAQS. On December 2,
2013 EPA reclassified Atlanta to attainment for the 1997 8-hour
standard. However, Atlanta is currently classified as marginal
nonattainment under the 2008 8-hour standard. Thus, the issue for
resolution in today's rule is the same as at the time of proposal--
the extent to which an area formerly classified as a severe
nonattainment area under the 1-hour standard must continue to be an
RFG covered area if it was reclassified to attainment before the 1-
hour standard was revoked and is classified as less than severe
under the 8-hour ozone NAAQS.
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Under the second option, the trigger date for Atlanta would be the
date of revocation of the 1-hour ozone 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) of the Act is 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 ozone 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 antibacksliding approach, EPA believes that both the
statutory language and 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 no longer apply for the
Atlanta area, based on the removal of the severe classification upon
redesignation to attainment for the 1-hour ozone 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 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.\11\ The removal of Atlanta as an RFG covered area would simplify
the tasks confronting the fuel refining and distribution system, an
additional fuel that meets both the state fuel requirements and the
Federal RFG requirements would not need to be produced and distributed.
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 ozone 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.
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\11\ 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 Administration for 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.
---------------------------------------------------------------------------
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-hour ozone 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. See 70 FR 5596
(February 3, 2005) Here, the date of revocation has already passed. In
addition, Atlanta has demonstrated attainment of the 1-hour ozone NAAQS
and the 1997 8-hour ozone 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 2008 8-hour ozone NAAQS.
V. Public Comment Summary
EPA received five sets of comments in response to the NPRM. Four of
those comments urged adoption of the second option which would remove
the RFG requirement with assurance of no loss of emission reductions
relied upon in the SIP. The comments reflected that this option would
assure no loss of emission benefits relied upon in the SIP and would
avoid a new ``boutique'' blend of fuel from being distributed in the
Atlanta market where 13 core counties would be RFG required areas, but
where fuel in 32 additional surrounding counties would meet differing
SIP fuel requirements.
The Renewable Fuels Association (RFA) submitted comments that
identified an alternate approach, and absent that, supported adoption
of Option 1. RFA's main comments are summarized and EPA's response
provided separately, below:
Comment: An additional and preferable alternative would be for EPA
to certify Georgia gas as RFG.
Response: The regulatory specifications for the two fuels are
different: Georgia gas has an RVP cap to control VOC emissions whereas
RFG must meet a VOC performance requirement. In addition, as
demonstrated through the MOVES modeling described above, use of RFG
would result in slightly lower VOC emissions than Georgia gas. The
characteristics of RFG are specified in laws and regulations. EPA
cannot determine that a fuel that does not meet those characteristics
can be certified as RFG. Therefore, it is not a viable option to simply
certify Georgia gas as RFG.\12\
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\12\ Clean Air Act section 211(k) and in 40 CFR 80.40 through
80.70.
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Comment: The distinction between Atlanta and the other bump up
areas EPA addressed in the phase II rule, for which EPA has required
RFG use at least until redesignation to attainment
[[Page 14416]]
for the 8-hour standard, amounts to ``form over substance'' since
Atlanta is in non-attainment for the 8-hour standard like those other
bump up areas.
Response: The redesignation of Atlanta to attainment for the 1-hour
ozone standard was a significant event and is relevant to considering
Atlanta different than the other bump-up areas which had not been
redesignated to attainment for the 1-hour ozone standard prior to its
revocation. Atlanta's legal status is different than that of other
bump-up areas since it is the only area that was redesignated to
attainment of the 1-hour NAAQS before that standard was revoked. As
discussed above, the statute is ambiguous with respect to RFG
requirements after an area is no longer classified as a severe area,
based on redesignation to attainment for the 1-hour standard. Thus,
Atlanta's attainment status under the 1-hour standard before that
standard was revoked is not a matter of ``form'' only, but an important
issue with respect to statutory construction. In the proposal EPA
explained that Atlanta's unique circumstances supported consideration
of a different approach for Atlanta than that adopted in the Phase 2
rule for the bump-up areas that lost their classification of severe
based solely on the revocation of the 1-hour standard. See 71 FR at
36045-46. EPA continues to believe these differences are substantive
and support the interpretation adopted in this final rule.
Comment: Analysis of other provisions of the CAA (211(h) and (m)),
and EPA's own statements in its 9/29/1998 rule (which was struck down
in a judicial challenge) expanding eligibility to opt-in to RFG to
former nonattainment areas, demonstrate that the statute is not
ambiguous in the context of Atlanta, and that EPA has no discretion to
remove the RFG requirement.
Response: EPA disagrees with this comment. Both CAA Sections 221(h)
and (m) include provisions addressing their applicability to
nonattainment areas that are redesignated to attainment of the relevant
NAAQS. In contrast, 211(k) includes no such provisions. There is no
reason to assume, as the commenter does, that this necessarily means
that RFG covered areas must continue to use RFG indefinitely,
regardless of air quality improvements. It simply means that Congress
has not addressed the issue of RFG requirements when an RFG covered
area is redesignated to attainment for the ozone NAAQS. With respect to
EPA's statements in the preamble to the 1998 rule that sought to expand
RFG opt-in opportunities, EPA attempted to resolve ambiguity it
perceived in the statute in favor of expanded opt-in eligibility due to
the considerable emissions benefits of RFG at that time. This rule was
later invalidated in a judicial challenge. Today EPA is interpreting
different ambiguous language in a much different context, where there
are very limited benefits to RFG use as compared to Georgia gas, and
where the State has been redesignated to attainment of the 1-hour ozone
NAAQS prior to its revocation, and redesignated to attainment of the
1997 8-hour ozone NAAQS, without ever using RFG to reach these
milestones. Therefore, EPA does not agree that its statements in the
preamble to the 1998 rule necessitate a continued RFG requirement in
Atlanta.
Comment: EPA failed to consider the toxic pollutant emissions
benefits of RFG.
Response: Since the comments were received, EPA has adopted and
implemented the Mobile Source Air Toxics Rule (MSAT2). As a result of
this rule, conventional gasoline must meet the same toxics requirements
as RFG. Accordingly, although EPA agrees with the commenter that it is
appropriate to consider toxic pollutant emissions of RFG as compared to
Georgia gas in finalizing this rule; this consideration does not weigh
in favor of requiring Atlanta to use RFG.
Comment: EPA's discussion of infrastructure concerns ignored
investments made by some companies to provide RFG to Atlanta.
Response: In late 2005, Congress passed the Energy Policy Act which
directed EPA to remove the oxygenate requirement in RFG and to
establish a renewable fuels standard program to require increasing use
of renewable fuels such as ethanol in motor vehicle gasoline. The
statute was considerably amended in 2007 to require that even larger
volumes of renewable fuel be used, with volumes increasing annually to
36 billion gallons in 2022. The investments referenced by the
commenters related principally to the production, distribution, and
blending of ethanol. In light of the statutory changes noted above,
such infrastructure changes have likely been used to provide renewable
fuel for satisfying the new renewable fuel standard requirements. This
same infrastructure will therefore continue to be needed regardless of
whether RFG is required in Atlanta. Moreover, requiring three fuel
blends (conventional gasoline, Georgia gas, and RFG) to be distributed
in the region would likely present distribution, tankage, and fuel
fungibility challenges and constraints. This factor therefore weighs
against requiring continued use of RFG in Atlanta.
In soliciting comment on the proposal, we suggested consideration
of three criteria: (1) Current 8-hour ozone designation, (2) the likely
effect on ozone NAAQS attainment, and (3) the likely effect on the fuel
infrastructure. We have considered these same factors in finalizing
this rule, and have also considered the fact that in light of recent
regulatory improvements to conventional gasoline requirements, there is
no toxic pollutant emissions benefit to using RFG as compared to
Georgia gas. Emissions impacts associated with this decision are
described in detail in Section II of this preamble. The fact that
Georgia has not relied on RFG for purposes of its approved ozone SIP
means that removing the RFG requirement will have no impact on ozone
NAAQS attainment. EPA further believes that removing the requirement
for RFG in Atlanta will remove significant potential hurdles in fuel
fungibility. Were RFG to be required in the 13 counties that were
bumped up to severe under the 1-hour ozone standard, the Georgia gas
program would continue to require Georgia gas be supplied to the
remaining 32 counties covered by that requirement (45 county area).
Therefore, by removing the RFG requirement, EPA removes the potential
that three distinct fuels (CG, RFG, and GA gas) would be produced for
the region. Removing regulatory impediments that may result in a
fractured market enhances the fungibility of fuel and protects
consumers in times of fuel supply shortages. For the reasons discussed
herein, EPA believes it is appropriate to adopt the second option
discussed in the proposal.
VI. What action is EPA taking?
In this action, EPA has determined that an area reclassified as a
severe ozone nonattainment area under the 1-hour ozone standard as a
result of failure to meet attainment deadlines, and which was then
redesignated to attainment for the 1-hour ozone standard prior to
revocation of that standard (i.e. Atlanta), is not required to remain
an RFG covered area, even if it is currently designated as an ozone
nonattainment area (marginal) for the 8-hour ozone NAAQS. Our
determination is based upon an interpretation of section 211(k)(10)(D),
consideration of the appropriate anti-backsliding approach under the
circumstances in question, and the public comments we have received.
[[Page 14417]]
Given the ambiguity in section 211(k)(10)(D) on the issue of
whether and how long a bump-up area continues to be a covered area when
it is no longer classified as severe, EPA has exercised discretion in
this action to determine appropriate requirements for the Atlanta area.
Atlanta is unique among the bump-up areas in that it was redesignated
to attainment for the 1-hour ozone NAAQS prior to that standard's
revocation. At the time, Atlanta was also designated nonattainment and
classified as marginal for the 1997 8-hour NAAQS. For Atlanta, the
choice of a reasonable trigger date makes a difference in whether the
requirement to use RFG continues after revocation of the 1-hour ozone
NAAQS.
In the Phase 2 rule, EPA recognized that section 211(k)(10)(D) of
the CAA is ambiguous with respect to whether and how long a bump-up
area continues to be an RFG covered area when it is no longer
classified as severe. Given this ambiguity, EPA stated that it has
discretion to determine whether section 211(k)(10)(D) authorizes
removal of a bump-up area from the RFG program when it is no longer
classified as severe, and to set appropriate criteria for such removal.
See 70 FR at 71686. EPA believes that the comprehensive planning
conducted by states through the SIP process, the array of regulatory
tools at the states' disposal, and based on its unique circumstances,
the limited emissions benefits currently attributable to RFG in the
Atlanta area indicate that it would be appropriate to no longer require
that the Atlanta bump-up area be an RFG covered area. Providing the
State the discretion whether to include federal RFG as part of the
required control measures relied upon for ozone attainment and
maintenance recognizes the central role played by the States in
developing SIPs, including developing the maintenance plan, and the
array of tools available to States to achieve attainment and
maintenance.
Therefore, EPA is interpreting the definition of covered area in
section 211(k)(10)(D) for an area formerly classified as a severe ozone
nonattainment area under the 1-hour ozone NAAQS that was redesignated
to attainment for that standard before its revocation, and which is
currently designated as nonattaiment for the 8-hour ozone standard with
a classification less than severe, as allowing removal of RFG upon
request by the State and demonstration that removal would not result in
loss of any RFG-related emission reductions relied upon in the State's
Implementation Plan.
VII. Application of This Interpretation to the Atlanta Area
Atlanta meets the criteria specified in today's rule for removal as
an RFG covered area, including the State having requested such removal
and the State not having relied on emission from federal RFG in its
approved SIP. Therefore, the effect of today's action is that Atlanta
is no longer a federal RFG covered area and there is no present
requirement to use federal RFG in the Atlanta area. Today's action does
not limit Atlanta's opportunity to opt-in to the federal RFG program in
the future if the requirements are met for an opt-in. Moreover, if the
Atlanta area was ever to be reclassified as a severe nonattainment area
under the 8-hour ozone NAAQS, the nonattainment area would become an
RFG covered area as a result.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
As of November 14, 2013, the Office of Management and Budget (OMB),
determined that this action is not a ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This action removes an existing requirement not yet implemented.
However, the Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the final
RFG/antidumping rulemaking (see 59 FR 7716, February 16, 1994) and
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. has assigned OMB control number 2060-0277 (EPA ICR No. 1591.25).
The OMB control numbers for EPA's regulations in 40 CFR are listed in
40 CFR part 9.
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.
After considering the economic impacts of this action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities, as the
option finalized herein removes a regulatory requirement not yet
implemented.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. This action removes an existing
regulatory requirement not yet implemented.
E. Executive Order 13132 (Federalism)
This action 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 action removes an existing
requirement not yet implemented. Thus, Executive Order 13132 does not
apply to this action. Although section 6 of Executive Order 13132 does
not apply to this action, the State of Georgia submitted comments to
the proposal and supported the option being finalized today.
F. Executive Order 13175
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action will
not have
[[Page 14418]]
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. This final rule does not create a mandate
for any tribal government nor would the rule impose any enforceable
duties on these entities. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it implements specific standards established by Congress
in statutes.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 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. 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 involved technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629, February 16, 1994)
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. For the option finalized in this rule to be implemented,
the State must demonstrate that removal of the RFG requirement would
not result in loss of emission reductions relied upon in the ozone
state implementation plan and it has done so. Moreover, since RFG has
never actually been implemented in Atlanta, this action will not result
in an actual change in emissions.
K. Statutory Authority
The Statutory authority for the action finalized today is granted
to EPA by sections 211(k) and 301 of the Clean Air Act, as amended; 42
U.S.C. 7545(k) and 7601.
L. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. 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(2). This rule will be effective upon publication in the Federal
Register.
List of Subjects in 40 CFR Part 80
Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Diesel fuel,
Energy, Forest and forest products, Fuel additives, Gasoline, Imports,
Labeling, Motor vehicle pollution, Penalties, Petroleum, Reporting and
recordkeeping requirements.
Dated: March 7, 2014.
Gina McCarthy,
Administrator.
Accordingly, 40 CFR part 80 is amended as follows:
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
0
1. The authority citation for part 80 continues to read as follows:
Authority: 42 U.S.C. 7414, 7542, 7545, and 7601(a).
0
2. Section 80.70 is amended by revising paragraph (m)(2) to read as
follows:
Sec. 80.70 Covered areas.
* * * * *
(m) * * *
(2) An area identified as a covered area pursuant to this paragraph
(m), based on its classification as a severe non-attainment area under
the 1-hour ozone NAAQS, but which is redesignated to attainment for the
1-hour ozone NAAQS, may be removed as a covered area at the request of
a State providing that the State does not rely on RFG in any State
Implementation Plan.
[FR Doc. 2014-05697 Filed 3-13-14; 8:45 am]
BILLING CODE 6560-50-P