Regulation of Fuels and Fuel Additives: Removal of the Reformulated Gasoline Program From the Northern Kentucky Portion of the Cincinnati-Hamilton Ozone Maintenance Area, 2453-2456 [2019-01320]

Download as PDF Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Rules and Regulations * * * * I. General Information II. Background III. Action IV. Public Participation V. Statutory and Executive Order Reviews VI. Legal Authority and Statutory Provisions * [FR Doc. 2019–00713 Filed 2–6–19; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY I. General Information 40 CFR Part 80 [EPA–HQ–OAR–2018–0114; FRL–9988–86– OAR] RIN 2060–AU32 Regulation of Fuels and Fuel Additives: Removal of the Reformulated Gasoline Program From the Northern Kentucky Portion of the Cincinnati-Hamilton Ozone Maintenance Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: In this final action, EPA is amending its reformulated gasoline regulations to reflect that Boone, Campbell, and Kenton counties in Kentucky (the Northern Kentucky Area), which are part of the CincinnatiHamilton, Ohio-Kentucky-Indiana ozone area, are no longer federal reformulated gasoline (RFG) covered areas as of July 1, 2018. As described in a separate document published on May 16, 2018, pursuant to EPA’s regulations, EPA approved an April 18, 2017 petition from the state of Kentucky to opt-out of the federal RFG program and removed the requirement to sell federal RFG in the Northern Kentucky Area as of July 1, 2018. This effective date applies to retailers, wholesale purchaser-consumers, refiners, importers, and distributors. This rulemaking merely conforms the list of RFG covered areas in the regulations to reflect the effective date of the opt-out for the Northern Kentucky Area. DATES: This final rule is effective on February 7, 2019. FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington, DC 20460; telephone number: (202) 343– 9256; email address: dickinson.david@ epa.gov or Rudy Kapichak, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood, Ann Arbor, MI 48105; telephone number: 734–214–4574; email address: kapichak.rudolph@ epa.gov. SUMMARY: SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in the following outline: VerDate Sep<11>2014 15:51 Feb 06, 2019 Jkt 247001 A. Does this action apply to me? Entities potentially affected by this final action are fuel producers and distributors who do business in the Northern Kentucky Area. Examples of potentially regulated entities NAICS 1 codes Petroleum refineries ..................... Gasoline Marketers and Distributors ............................................ Gasoline Retail Stations ............... Gasoline Transporters .................. 1 North System. American Industry 324110 424710 424720 447110 484220 484230 Classification The above table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. The table lists the types of entities of which EPA is aware that potentially could be affected by this final action. Other types of entities not listed on the table could also be affected. To determine whether your organization could be affected by this final action, you should carefully examine the regulations in 40 CFR part 80, subpart D—Reformulated Gasoline. If you have questions regarding the applicability of this action to a particular entity, see the FOR FURTHER INFORMATION CONTACT section of this preamble. 2453 areas) provide the process and criteria for a reasonable transition out of the federal RFG program if a state decides to opt-out.2 These opt-out regulations provide that the governor of the state must submit a petition to the Administrator requesting to opt-out of the federal RFG program. The petition must include specific information on how, if at all, the state has relied on RFG in a proposed or approved state implementation plan (SIP) or plan revision and, if RFG is relied upon, how the SIP will be revised to reflect the state’s opt-out from RFG. The opt-out regulations also provide that EPA will notify the state in writing of the Agency’s action on the petition and the date the opt-out becomes effective (i.e., the date RFG is no longer required in the affected area) when the petition is approved. The opt-out regulations also provide that EPA will publish a Federal Register document announcing the approval of any opt-out petition and the effective date of such opt-out. If a SIP revision is required, the effective date of EPA’s approval of the opt-out can be no less than 90 days from the effective date of EPA’s approval of the revision to the SIP that removes RFG as a control measure. See 40 CFR 80.72(c)(7). B. Kentucky Opt-In and Opt-Out of RFG for the Northern Kentucky Area In 1995, Kentucky voluntarily opted Boone, Campbell, and Kenton Counties (the Northern Kentucky Area), into the federal RFG program. Kentucky also opted its portion of the Louisville ozone area (Jefferson County and parts of Bullitt and Oldham Counties) into the federal RFG program; however, this action does not affect the use of RFG in B. How can I get copies of this document the Kentucky portion of the Louisville and other related information? ozone area. A current listing of the RFG covered areas and a summary of RFG EPA has established a docket for this requirements can be found at 40 CFR action under Docket ID No. EPA–HQ– 80.70 and on EPA’s website at: https:// OAR–2018–0114. All documents in the www.epa.gov/gasoline-standards/ docket are listed on the www.regulations.gov website. Although reformulated-gasoline. On April 18, 2017, Kentucky listed in the index, some information submitted a petition to the EPA may not be publicly available, e.g., Confidential Business Information (CBI) Administrator requesting to opt-out or other information whose disclosure is from the federal RFG program for the Northern Kentucky Area.3 In order to restricted by statute. Certain other material, such as copyrighted material, 2 Pursuant to authority under CAA sections 211(c) is not placed on the internet and will be and (k) and 301(a), EPA promulgated regulations at publicly available only in hard copy 40 CFR 80.72 to provide criteria and general form. Publicly available docket procedures for states to opt-out of the RFG program materials are available electronically where the state had previously voluntarily opted into the program. The regulations were initially through www.regulations.gov. II. Background A. RFG Opt-Out Procedures The reformulated gasoline (RFG) optout regulations (40 CFR 80.72— Procedures for opting out of the covered PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 adopted on July 8, 1996 (61 FR 35673) (the RFG ‘‘Opt-out Rule’’); and were revised on October 20, 1997 (62 FR 54552). 3 The Secretary of Kentucky’s Energy and Environment Cabinet submitted the opt-out petition on behalf of the Commonwealth of Kentucky. A copy of the opt-out petition is included in the docket. E:\FR\FM\07FER1.SGM 07FER1 2454 Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Rules and Regulations fulfill the requirements of the RFG optout regulations and to support its initial request, on September 13, 2017, Kentucky submitted a revision to its maintenance plan for the Northern Kentucky Area to remove the emissions reductions associated with the use of RFG in this area and to demonstrate that the RFG opt-out would not interfere with the area’s ability to attain or maintain the 2008 ozone National Ambient Air Quality Standard (NAAQS) and any other NAAQS as required by Clean Air Act (CAA) section 110(l). (See 40 CFR 80.72(b)). EPA published a proposed approval of the SIP revision on February 14, 2018 (83 FR 6496) and a final approval of the SIP revision on April 2, 2018 (83 FR 13872). The final approval of the maintenance plan revision was effective upon publication, on April 2, 2018. By letter dated April 30, 2018, EPA informed Kentucky of the grant of its petition as required by the RFG Opt-Out Rule. EPA also indicated that the effective date of the RFG opt-out for the Northern Kentucky Area would be July 1, 2018, which is 90 days after the effective date of EPA’s approval of the maintenance plan revision and CAA section 110(l) analysis, as required by 40 CFR 80.72(c)(7). On May 16, 2018, EPA published the Federal Register document required by the RFG Opt-Out Rule that informed the public of the July 1, 2018 effective date and indicated that EPA would publish a final rule later to remove the Northern Kentucky Area from the list of RFG covered areas in 40 CFR 80.70 after the effective date of the opt-out (83 FR 22595). The July 1, 2018 opt-out effective date is the date for the removal of the prohibition on the sale of conventional gasoline in the Northern Kentucky Area and applies to retailers, wholesale purchasers-consumers, refiners, importers, and distributors of gasoline. III. Action In this rule, EPA is amending 40 CFR 80.70(j) to reflect that the Northern Kentucky Area (Boone, Campbell, and Kenton counties) is no longer a federal RFG covered area. This final rule merely conforms the applicable regulations with EPA’s prior approval of the Kentucky petition. IV. Public Participation EPA is issuing this final action without prior notice and comment. The rulemaking procedures provided in CAA section 307(d) do not apply when the Agency for good cause finds that notice-and-comment procedures are impracticable, unnecessary, or contrary to the public interest pursuant to section VerDate Sep<11>2014 15:51 Feb 06, 2019 Jkt 247001 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B). This is a ministerial action that amends 40 CFR 80.70 to reflect the prior EPA approval of Kentucky’s opt-out petition, which was based on criteria in EPA regulations for opting out of the federal RFG program. In the RFG opt-out regulations, EPA established a petition process that would address, on a caseby-case basis, future individual state requests to opt-out of the RFG program. The regulations established clear and objective criteria for EPA to apply that include criteria for when a state’s petition is complete and the appropriate transition time for opt-out of the RFG program. Further, at the time of promulgation of those regulations, EPA had explained that the application of these regulatory criteria on a case-bycase basis to individual opt-out requests would not require notice-and-comment rulemaking, either under CAA section 307(d) or the Administrative Procedure Act. Here, and as explained in the approval action, EPA is simply revising the list of RFG covered areas in 40 CFR 80.70 to conform with EPA’s prior approval of Kentucky’s request, which was effective on July 1, 2018 (83 FR 22595). That approval was a separate action, which was based on criteria in EPA’s regulations for opting out of the federal RFG program and is not the subject of this rule. For these reasons, EPA finds that notice-and-comment procedures under CAA section 307(d)(1) are unnecessary. This final rule is effective immediately upon publication. Section 553(d)(1) of the Administrative Procedure Act, 5 U.S.C. 553(d)(1), provides that final rules shall not become effective until 30 days after publication in the Federal Register ‘‘except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.’’ The purpose of this provision is to ‘‘give affected parties a reasonable time to adjust their behavior before the final rule takes effect.’’ Omnipoint Corp. v. Fed. Commc’n Comm’n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when the agency finalizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the affect is not adverse. EPA has determined that the finalized rule does not change any regulatory obligations and merely revises the list of covered areas in 40 CFR 80.70 to reflect EPA’s prior action on May 16, 2018 which relieved a restriction (the requirement of the PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 federal RFG program) in the Northern Kentucky Area. For these reasons, this rule will be effective immediately upon publication. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is not a significant regulatory action and therefore was not submitted to the Office of Management and Budget (OMB) for review. B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs This action is considered an Executive Order 13771 deregulatory action. This final rule and EPA’s earlier approval of Kentucky’s request to opt the three counties in the Northern Kentucky Area out of the federal RFG program provide meaningful burden reduction because it removes the requirements of the federal RFG program for gasoline sold in the Northern Kentucky Area and, as a result, fuel suppliers will no longer be required to sell gasoline that meets the federal RFG standards. Removing the federal RFG requirements will also be beneficial because this action can improve the fungibility of gasoline sold in the State of Kentucky by allowing gasoline sold in the Northern Kentucky Area to be identical to fuel sold in most of Kentucky. C. Paperwork Reduction Act (PRA) This action does not impose any information collection burden under the PRA, because it does not contain any information collection activities. D. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. The small entities subject to the requirements of this action are refiners, importers or blenders of gasoline that choose to produce or import gasoline that meets the federal RFG program requirements E:\FR\FM\07FER1.SGM 07FER1 Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Rules and Regulations for sale in the Northern Kentucky Area, and gasoline distributers and retail stations in the Northern Kentucky Area. EPA previously approved Kentucky’s request to opt the three counties in the Northern Kentucky Area out of the federal RFG program remove the federal RFG requirements for gasoline sold in the Northern Kentucky Area as of July 1, 2018. This action merely amends the regulation at 40 CFR 80.70 to reflect the Northern Kentucky Area is no longer a covered area. This action does not impose any requirements or create impacts on small entities beyond those, if any, already required by or resulting from the CAA section 211(k) federal RFG program. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities. E. Unfunded Mandates Reform Act (UMRA) This final rule does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. EPA previously approved Kentucky’s request to opt the three counties in the Northern Kentucky Area out of the federal RFG program removed a requirement for the sale of federal RFG in the area as provided for in CAA section 211(k) and EPA’s regulations at 40 CFR 80.72. This action merely amends the regulation at 40 CFR 80.70 to reflect the Northern Kentucky Area is no longer a covered area. F. 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. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175. EPA’s earlier approval of Kentucky’s request to opt the three counties in the Northern Kentucky Area out of the federal RFG program affected only those refiners, importers or blenders of gasoline that chose to produce or import gasoline that met federal RFG program requirements for sale in the Northern Kentucky Area and gasoline distributers and retail stations in the Area. This action merely amends the regulation at 40 CFR 80.70 to reflect the Northern Kentucky Area is no longer VerDate Sep<11>2014 15:51 Feb 06, 2019 Jkt 247001 a covered area. Thus, Executive Order 13175 does not apply to this action. H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of ‘‘covered regulatory action’’ in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. EPA has no reason to believe that this action will disproportionately affect children since Kentucky has provided evidence that opt-out from the federal RFG gasoline program will not interfere with its attainment of the ozone NAAQS, or any other applicable CAA requirement. By separate action, EPA has approved Kentucky’s noninterference demonstration regarding its maintenance plan for the 2008 ozone NAAQS, and that Kentucky’s opt-out from the federal RFG gasoline program in the Northern Kentucky Area will not interfere with any other NAAQS or CAA requirement. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866. J. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the applicable ozone NAAQS which establish the level of protection provided to human health or the environment. EPA previously approved Kentucky’s request to opt the three counties in the Northern Kentucky Area out of the federal RFG program removes the federal RFG gasoline program requirements for the Northern Kentucky PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 2455 Area. EPA has concluded that the federal RFG opt-out will not cause a measurable increase in ozone concentrations that would result in a violation of any ozone NAAQS including the 2008 ozone NAAQS and the more stringent 2015 ozone NAAQS. Therefore, disproportionately high and adverse human health or environmental effects on minority or low-income populations are not an anticipated result. The results of this evaluation are contained in EPA’s proposed and final rules for Kentucky’s non-interference demonstration. A copy of Kentucky’s April 12, 2017 letter requesting that EPA relax the gasoline RVP standard, and Kentucky’s September 13, 2017 letter that included additional technical analysis demonstrating that the opt-out from the federal RFG program would not interfere with continued maintenance of the 2008 ozone NAAQS in the Northern Kentucky Area, or with any other applicable CAA requirement, has been placed in the public docket for this action. This action merely amends the regulation at 40 CFR 80.70 to reflect the Northern Kentucky Area is no longer a covered area. L. Congressional Review Act (CRA) This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller of the United States. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). VI. Legal Authority and Statutory Provisions The statutory authority for this action is granted to EPA by sections 211(k) and 301(a) of the Clean Air Act, as amended; 42 U.S.C. 7545(h) and 7601(a). List of Subjects in 40 CFR Part 80 Environmental protection, Administrative practice and procedures, Air pollution control, Fuel additives, Gasoline, Motor vehicle and motor vehicle engines, Motor vehicle pollution, Penalties, Reporting and recordkeeping requirements. Dated: December 21, 2018. Andrew R. Wheeler, Acting Administrator. For the reasons set forth in the preamble, EPA amends 40 CFR part 80 as follows: PART 80—REGULATION OF FUELS AND FUEL ADDITIVES 1. The authority citation for part 80 continues to read as follows: ■ Authority: 42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a). E:\FR\FM\07FER1.SGM 07FER1 2456 Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Rules and Regulations information about the docket available at https://www.epa.gov/dockets. FOR FURTHER INFORMATION CONTACT: Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address: RDFRNotices@epa.gov. SUPPLEMENTARY INFORMATION: 2. Section 80.70 is amended by revising paragraph (j)(3) to read as follows: ■ § 80.70 Covered areas. * * * * * (j) * * * (3) Jefferson County, Kentucky; * * * * * [FR Doc. 2019–01320 Filed 2–6–19; 8:45 am] BILLING CODE 6560–50–P I. General Information ENVIRONMENTAL PROTECTION AGENCY A. Does this action apply to me? 40 CFR Part 180 [EPA–HQ–OPP–2018–0163; FRL–9987–42] Glycine betaine; Exemption From the Requirement of a Tolerance Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: This regulation establishes an exemption from the requirement of a tolerance for residues of glycine betaine (CAS Reg. No. 107–43–7) when used as an inert ingredient (plant nutrient) in pesticide formulations applied to growing crops only. SciReg, Inc., on behalf of Fine Agrochemicals Ltd, submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of glycine betaine. DATES: This regulation is effective February 7, 2019. Objections and requests for hearings must be received on or before April 8, 2019, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION). SUMMARY: The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2018–0163, is available at https://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460–0001. 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 OPP Docket is (703) 305–5805. Please review the visitor instructions and additional ADDRESSES: VerDate Sep<11>2014 15:51 Feb 06, 2019 Jkt 247001 You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). B. How can I get electronic access to other related information? You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office’s e-CFR site at https:// www.ecfr.gov/cgi-bin/text-idx?&c= ecfr&tpl=/ecfrbrowse/Title40/40tab_ 02.tpl. C. How can I file an objection or hearing request? Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ– OPP–2018–0163 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 8, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b). In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP– 2018–0163, by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute. • Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/ DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001. • Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https:// www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https:// www.epa.gov/dockets. II. Petition for Exemption In the Federal Register of May 18, 2018 (83 FR 23247) (FRL–9976–87), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN–11101) by SciReg, Inc., 12733 Director’s Loop, Woodbridge, VA 22192 on behalf of Fine Agrochemicals Ltd. The petition requested that 40 CFR 180.920 be amended by establishing an exemption from the requirement of a tolerance for residues of glycine betaine (CAS Reg. No. 107–43–7) when used as an inert ingredient (plant nutrient) in pesticide formulations applied to growing crops. That document referenced a summary of the petition prepared by SciReg, Inc., on behalf of Fine Agrochemicals Ltd., the petitioner, which is available in the docket, https:// www.regulations.gov. There were no comments received in response to the notice of filing. III. Inert Ingredient Definition Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as E:\FR\FM\07FER1.SGM 07FER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 84, Number 26 (Thursday, February 7, 2019)]
[Rules and Regulations]
[Pages 2453-2456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01320]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2018-0114; FRL-9988-86-OAR]
RIN 2060-AU32

Regulation of Fuels and Fuel Additives: Removal of the
Reformulated Gasoline Program From the Northern Kentucky Portion of the
Cincinnati-Hamilton Ozone Maintenance Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this final action, EPA is amending its reformulated
gasoline regulations to reflect that Boone, Campbell, and Kenton
counties in Kentucky (the Northern Kentucky Area), which are part of
the Cincinnati-Hamilton, Ohio-Kentucky-Indiana ozone area, are no
longer federal reformulated gasoline (RFG) covered areas as of July 1,
2018. As described in a separate document published on May 16, 2018,
pursuant to EPA's regulations, EPA approved an April 18, 2017 petition
from the state of Kentucky to opt-out of the federal RFG program and
removed the requirement to sell federal RFG in the Northern Kentucky
Area as of July 1, 2018. This effective date applies to retailers,
wholesale purchaser-consumers, refiners, importers, and distributors.
This rulemaking merely conforms the list of RFG covered areas in the
regulations to reflect the effective date of the opt-out for the
Northern Kentucky Area.

DATES: This final rule is effective on February 7, 2019.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Office of
Transportation and Air Quality, U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, Washington, DC 20460; telephone number: (202)
343-9256; email address: dickinson.david@epa.gov or Rudy Kapichak,
Office of Transportation and Air Quality, U.S. Environmental Protection
Agency, 2000 Traverwood, Ann Arbor, MI 48105; telephone number: 734-
214-4574; email address: kapichak.rudolph@epa.gov.

SUPPLEMENTARY INFORMATION:
The contents of this preamble are listed in the following outline:

I. General Information
II. Background
III. Action
IV. Public Participation
V. Statutory and Executive Order Reviews
VI. Legal Authority and Statutory Provisions

I. General Information

A. Does this action apply to me?

Entities potentially affected by this final action are fuel
producers and distributors who do business in the Northern Kentucky
Area.

------------------------------------------------------------------------
NAICS 1
Examples of potentially regulated entities codes
------------------------------------------------------------------------
Petroleum refineries......................................... 324110
424710
Gasoline Marketers and Distributors.......................... 424720
Gasoline Retail Stations..................................... 447110
Gasoline Transporters........................................ 484220
484230
------------------------------------------------------------------------
\1\ North American Industry Classification System.

The above table is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be regulated
by this action. The table lists the types of entities of which EPA is
aware that potentially could be affected by this final action. Other
types of entities not listed on the table could also be affected. To
determine whether your organization could be affected by this final
action, you should carefully examine the regulations in 40 CFR part 80,
subpart D--Reformulated Gasoline. If you have questions regarding the
applicability of this action to a particular entity, see the FOR
FURTHER INFORMATION CONTACT section of this preamble.

B. How can I get copies of this document and other related information?

EPA has established a docket for this action under Docket ID No.
EPA-HQ-OAR-2018-0114. All documents in the docket are listed on the
www.regulations.gov website. Although listed in the index, some
information may not be publicly available, e.g., Confidential Business
Information (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
electronically through www.regulations.gov.

II. Background

A. RFG Opt-Out Procedures

The reformulated gasoline (RFG) opt-out regulations (40 CFR 80.72--
Procedures for opting out of the covered areas) provide the process and
criteria for a reasonable transition out of the federal RFG program if
a state decides to opt-out.\2\ These opt-out regulations provide that
the governor of the state must submit a petition to the Administrator
requesting to opt-out of the federal RFG program. The petition must
include specific information on how, if at all, the state has relied on
RFG in a proposed or approved state implementation plan (SIP) or plan
revision and, if RFG is relied upon, how the SIP will be revised to
reflect the state's opt-out from RFG. The opt-out regulations also
provide that EPA will notify the state in writing of the Agency's
action on the petition and the date the opt-out becomes effective
(i.e., the date RFG is no longer required in the affected area) when
the petition is approved. The opt-out regulations also provide that EPA
will publish a Federal Register document announcing the approval of any
opt-out petition and the effective date of such opt-out. If a SIP
revision is required, the effective date of EPA's approval of the opt-
out can be no less than 90 days from the effective date of EPA's
approval of the revision to the SIP that removes RFG as a control
measure. See 40 CFR 80.72(c)(7).
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\2\ Pursuant to authority under CAA sections 211(c) and (k) and
301(a), EPA promulgated regulations at 40 CFR 80.72 to provide
criteria and general procedures for states to opt-out of the RFG
program where the state had previously voluntarily opted into the
program. The regulations were initially adopted on July 8, 1996 (61
FR 35673) (the RFG ``Opt-out Rule''); and were revised on October
20, 1997 (62 FR 54552).
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B. Kentucky Opt-In and Opt-Out of RFG for the Northern Kentucky Area

In 1995, Kentucky voluntarily opted Boone, Campbell, and Kenton
Counties (the Northern Kentucky Area), into the federal RFG program.
Kentucky also opted its portion of the Louisville ozone area (Jefferson
County and parts of Bullitt and Oldham Counties) into the federal RFG
program; however, this action does not affect the use of RFG in the
Kentucky portion of the Louisville ozone area. A current listing of the
RFG covered areas and a summary of RFG requirements can be found at 40
CFR 80.70 and on EPA's website at: https://www.epa.gov/gasoline-standards/reformulated-gasoline.
On April 18, 2017, Kentucky submitted a petition to the EPA
Administrator requesting to opt-out from the federal RFG program for
the Northern Kentucky Area.\3\ In order to

[[Page 2454]]

fulfill the requirements of the RFG opt-out regulations and to support
its initial request, on September 13, 2017, Kentucky submitted a
revision to its maintenance plan for the Northern Kentucky Area to
remove the emissions reductions associated with the use of RFG in this
area and to demonstrate that the RFG opt-out would not interfere with
the area's ability to attain or maintain the 2008 ozone National
Ambient Air Quality Standard (NAAQS) and any other NAAQS as required by
Clean Air Act (CAA) section 110(l). (See 40 CFR 80.72(b)). EPA
published a proposed approval of the SIP revision on February 14, 2018
(83 FR 6496) and a final approval of the SIP revision on April 2, 2018
(83 FR 13872). The final approval of the maintenance plan revision was
effective upon publication, on April 2, 2018.
---------------------------------------------------------------------------

\3\ The Secretary of Kentucky's Energy and Environment Cabinet
submitted the opt-out petition on behalf of the Commonwealth of
Kentucky. A copy of the opt-out petition is included in the docket.
---------------------------------------------------------------------------

By letter dated April 30, 2018, EPA informed Kentucky of the grant
of its petition as required by the RFG Opt-Out Rule. EPA also indicated
that the effective date of the RFG opt-out for the Northern Kentucky
Area would be July 1, 2018, which is 90 days after the effective date
of EPA's approval of the maintenance plan revision and CAA section
110(l) analysis, as required by 40 CFR 80.72(c)(7). On May 16, 2018,
EPA published the Federal Register document required by the RFG Opt-Out
Rule that informed the public of the July 1, 2018 effective date and
indicated that EPA would publish a final rule later to remove the
Northern Kentucky Area from the list of RFG covered areas in 40 CFR
80.70 after the effective date of the opt-out (83 FR 22595). The July
1, 2018 opt-out effective date is the date for the removal of the
prohibition on the sale of conventional gasoline in the Northern
Kentucky Area and applies to retailers, wholesale purchasers-consumers,
refiners, importers, and distributors of gasoline.

III. Action

In this rule, EPA is amending 40 CFR 80.70(j) to reflect that the
Northern Kentucky Area (Boone, Campbell, and Kenton counties) is no
longer a federal RFG covered area. This final rule merely conforms the
applicable regulations with EPA's prior approval of the Kentucky
petition.

IV. Public Participation

EPA is issuing this final action without prior notice and comment.
The rulemaking procedures provided in CAA section 307(d) do not apply
when the Agency for good cause finds that notice-and-comment procedures
are impracticable, unnecessary, or contrary to the public interest
pursuant to section 553(b)(B) of the Administrative Procedure Act, 5
U.S.C. 553(b)(B). This is a ministerial action that amends 40 CFR 80.70
to reflect the prior EPA approval of Kentucky's opt-out petition, which
was based on criteria in EPA regulations for opting out of the federal
RFG program. In the RFG opt-out regulations, EPA established a petition
process that would address, on a case-by-case basis, future individual
state requests to opt-out of the RFG program. The regulations
established clear and objective criteria for EPA to apply that include
criteria for when a state's petition is complete and the appropriate
transition time for opt-out of the RFG program. Further, at the time of
promulgation of those regulations, EPA had explained that the
application of these regulatory criteria on a case-by-case basis to
individual opt-out requests would not require notice-and-comment
rulemaking, either under CAA section 307(d) or the Administrative
Procedure Act.
Here, and as explained in the approval action, EPA is simply
revising the list of RFG covered areas in 40 CFR 80.70 to conform with
EPA's prior approval of Kentucky's request, which was effective on July
1, 2018 (83 FR 22595). That approval was a separate action, which was
based on criteria in EPA's regulations for opting out of the federal
RFG program and is not the subject of this rule. For these reasons, EPA
finds that notice-and-comment procedures under CAA section 307(d)(1)
are unnecessary.
This final rule is effective immediately upon publication. Section
553(d)(1) of the Administrative Procedure Act, 5 U.S.C. 553(d)(1),
provides that final rules shall not become effective until 30 days
after publication in the Federal Register ``except . . . a substantive
rule which grants or recognizes an exemption or relieves a
restriction.'' The purpose of this provision is to ``give affected
parties a reasonable time to adjust their behavior before the final
rule takes effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d
620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551
F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However,
when the agency finalizes an exemption or relieves a restriction,
affected parties do not need a reasonable time to adjust because the
affect is not adverse. EPA has determined that the finalized rule does
not change any regulatory obligations and merely revises the list of
covered areas in 40 CFR 80.70 to reflect EPA's prior action on May 16,
2018 which relieved a restriction (the requirement of the federal RFG
program) in the Northern Kentucky Area. For these reasons, this rule
will be effective immediately upon publication.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order

13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and therefore
was not submitted to the Office of Management and Budget (OMB) for
review.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

This action is considered an Executive Order 13771 deregulatory
action. This final rule and EPA's earlier approval of Kentucky's
request to opt the three counties in the Northern Kentucky Area out of
the federal RFG program provide meaningful burden reduction because it
removes the requirements of the federal RFG program for gasoline sold
in the Northern Kentucky Area and, as a result, fuel suppliers will no
longer be required to sell gasoline that meets the federal RFG
standards. Removing the federal RFG requirements will also be
beneficial because this action can improve the fungibility of gasoline
sold in the State of Kentucky by allowing gasoline sold in the Northern
Kentucky Area to be identical to fuel sold in most of Kentucky.

C. Paperwork Reduction Act (PRA)

This action does not impose any information collection burden under
the PRA, because it does not contain any information collection
activities.

D. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. The small entities subject to the
requirements of this action are refiners, importers or blenders of
gasoline that choose to produce or import gasoline that meets the
federal RFG program requirements

[[Page 2455]]

for sale in the Northern Kentucky Area, and gasoline distributers and
retail stations in the Northern Kentucky Area. EPA previously approved
Kentucky's request to opt the three counties in the Northern Kentucky
Area out of the federal RFG program remove the federal RFG requirements
for gasoline sold in the Northern Kentucky Area as of July 1, 2018.
This action merely amends the regulation at 40 CFR 80.70 to reflect the
Northern Kentucky Area is no longer a covered area. This action does
not impose any requirements or create impacts on small entities beyond
those, if any, already required by or resulting from the CAA section
211(k) federal RFG program. We have therefore concluded that this
action will have no net regulatory burden for all directly regulated
small entities.

E. Unfunded Mandates Reform Act (UMRA)

This final rule does not contain an unfunded mandate of $100
million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. EPA previously
approved Kentucky's request to opt the three counties in the Northern
Kentucky Area out of the federal RFG program removed a requirement for
the sale of federal RFG in the area as provided for in CAA section
211(k) and EPA's regulations at 40 CFR 80.72. This action merely amends
the regulation at 40 CFR 80.70 to reflect the Northern Kentucky Area is
no longer a covered area.

F. 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.

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

This action does not have tribal implications, as specified in
Executive Order 13175. EPA's earlier approval of Kentucky's request to
opt the three counties in the Northern Kentucky Area out of the federal
RFG program affected only those refiners, importers or blenders of
gasoline that chose to produce or import gasoline that met federal RFG
program requirements for sale in the Northern Kentucky Area and
gasoline distributers and retail stations in the Area. This action
merely amends the regulation at 40 CFR 80.70 to reflect the Northern
Kentucky Area is no longer a covered area. Thus, Executive Order 13175
does not apply to this action.

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

EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk. EPA has no reason to believe that this action will
disproportionately affect children since Kentucky has provided evidence
that opt-out from the federal RFG gasoline program will not interfere
with its attainment of the ozone NAAQS, or any other applicable CAA
requirement. By separate action, EPA has approved Kentucky's non-
interference demonstration regarding its maintenance plan for the 2008
ozone NAAQS, and that Kentucky's opt-out from the federal RFG gasoline
program in the Northern Kentucky Area will not interfere with any other
NAAQS or CAA requirement.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

EPA believes the human health or environmental risk addressed by
this action will not have potential disproportionately high and adverse
human health or environmental effects on minority, low-income or
indigenous populations because it does not affect the applicable ozone
NAAQS which establish the level of protection provided to human health
or the environment. EPA previously approved Kentucky's request to opt
the three counties in the Northern Kentucky Area out of the federal RFG
program removes the federal RFG gasoline program requirements for the
Northern Kentucky Area. EPA has concluded that the federal RFG opt-out
will not cause a measurable increase in ozone concentrations that would
result in a violation of any ozone NAAQS including the 2008 ozone NAAQS
and the more stringent 2015 ozone NAAQS. Therefore, disproportionately
high and adverse human health or environmental effects on minority or
low-income populations are not an anticipated result. The results of
this evaluation are contained in EPA's proposed and final rules for
Kentucky's non-interference demonstration. A copy of Kentucky's April
12, 2017 letter requesting that EPA relax the gasoline RVP standard,
and Kentucky's September 13, 2017 letter that included additional
technical analysis demonstrating that the opt-out from the federal RFG
program would not interfere with continued maintenance of the 2008
ozone NAAQS in the Northern Kentucky Area, or with any other applicable
CAA requirement, has been placed in the public docket for this action.
This action merely amends the regulation at 40 CFR 80.70 to reflect the
Northern Kentucky Area is no longer a covered area.

L. Congressional Review Act (CRA)

This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller of the
United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

VI. Legal Authority and Statutory Provisions

The statutory authority for this action is granted to EPA by
sections 211(k) and 301(a) of the Clean Air Act, as amended; 42 U.S.C.
7545(h) and 7601(a).

List of Subjects in 40 CFR Part 80

Environmental protection, Administrative practice and procedures,
Air pollution control, Fuel additives, Gasoline, Motor vehicle and
motor vehicle engines, Motor vehicle pollution, Penalties, Reporting
and recordkeeping requirements.

Dated: December 21, 2018.
Andrew R. Wheeler,
Acting Administrator.

For the reasons set forth in the preamble, EPA amends 40 CFR part
80 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, 7521, 7542, 7545, and 7601(a).

[[Page 2456]]

0
2. Section 80.70 is amended by revising paragraph (j)(3) to read as
follows:

Sec. 80.70 Covered areas.

* * * * *
(j) * * *
(3) Jefferson County, Kentucky;
* * * * *
[FR Doc. 2019-01320 Filed 2-6-19; 8:45 am]
BILLING CODE 6560-50-P

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