[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
----------------------------------------------------------------------------------------------------------------
Industry....................................            324110              2911  Petroleum Refiners.
Industry....................................            422710              5171  Gasoline Marketers and
                                                        422720              5172   Distributors.
Industry....................................            484220              4212  Gasoline Carriers.
                                                        484230              4213
----------------------------------------------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------

    \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 .
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \12\ Clean Air Act section 211(k) and in 40 CFR 80.40 through 
80.70.
---------------------------------------------------------------------------

    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