[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Proposed Rules]
[Pages 42619-42625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20290]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2008-0924; FRL-8948-1]
RIN 2060-AP40


Regulation of Fuels and Fuel Additives: Federal Volatility 
Control Program in the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 
1997 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action proposes to establish an applicable standard of 
7.8 pounds per square inch (psi) Reid vapor pressure (RVP) under the 
federal volatility control program in the Denver-Boulder-Greeley-Ft. 
Collins-Loveland, Colorado, 1997 8-hour ozone nonattainment area during 
the high ozone season--June 1st to September 15th of each year--
beginning in 2010. This action would require the use of 7.8 psi RVP 
gasoline in Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas and 
Jefferson counties, and in portions of Larimer, and Weld counties.

DATES: Comments. Comments must be received on or before September 23, 
2009, unless a public hearing is requested by September 14, 2009.
    Public Hearing. To request a public hearing, contact Sean Hillson 
at (734) 214-4789 or <a href="/cdn-cgi/l/email-protection#d1b9b8bdbda2bebfffa2b4b0bf91b4a1b0ffb6bea7"><span class="__cf_email__" data-cfemail="e78f8e8b8b948889c994828689a7829786c9808891">[email protected]</span></a>. If a hearing is requested no 
later than September 14, 2009, a hearing will be held at a time and 
place to be published in the Federal Register. Persons wishing to 
testify at a public hearing must contact Sean Hillson at (734) 214-
4789, and submit copies of their testimony to the docket and to Sean 
Hillson at the addresses below, no later than 10 days prior to the 
hearing. After any such hearing, the docket for this rulemaking will 
remain open for an additional 30 days to receive comments. If a hearing 
is held, EPA will publish a notice in the Federal Register extending 
the comment period for 30 days after the hearing.

[[Page 42620]]


ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0924, by one of the following methods:
    <bullet> http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#50317d313e347d227d343f333b3524103520317e373f26"><span class="__cf_email__" data-cfemail="7e1f531f101a530c531a111d151b0a3e1b0e1f50191108">[email protected]</span></a>.
    <bullet> Fax: (202) 566-1741.
    <bullet> Mail: Air and Radiation Docket, EPA, Mailcode: 6102T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460. Attention Docket ID No. 
EPA-HQ-OAR-2008-0924. Please include a duplicate copy, if possible. We 
request that a separate copy of each public comment also be sent to the 
contact person listed below (see FOR FURTHER INFORMATION CONTACT).
    Hand Delivery: Air and Radiation Docket, EPA, Room B-102, 1301 
Constitution Ave., NW., Washington, DC 20004. Such deliveries are only 
accepted during the Docket's normal hours of operation and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0924. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: The Docket ID No. for this action is EPA-HQ-OAR-2008-0924. 
All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Public Reading 
Room, EPA/DC, EPA West, Room B-102, 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 and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Sean Hillson, Office of Transportation 
and Air Quality, Transportation and Regional Programs Division, 
Mailcode AASMCG, Environmental Protection Agency, 2000 Traverwood 
Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4789; fax 
number: (734) 214-4052; e-mail address: <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="e1a9888d8d928e8fcfb284808fa1849180cf868e97">[email protected]</a>.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'', 
``us'', or ``our'' is used, we mean EPA. This document concerns the 
amendment to EPA's regulations governing gasoline supplied to the 
Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone 
nonattainment area.
    Regulated Entities. Entities potentially affected by this rule are 
fuel producers and distributors who do business in Colorado. Regulated 
entities include:

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

    This table provides only a guide for readers regarding entities 
likely to be regulated by this action. You should carefully examine the 
regulations in 40 CFR 80.27 to determine whether your facility is 
impacted. If you have further questions, call the person listed in the 
FOR FURTHER INFORMATION CONTACT section of this preamble.

Outline

I. Introduction
II. What Is the History of Gasoline Volatility Regulation?
III. What Are the EPA Rulemaking Actions Addressing the Transition 
From the 1-Hour to the 8-Hour Ozone NAAQS?
IV. What Information Supports More Stringent Federal RVP 
Requirements in Colorado's 8-Hour Ozone Nonattainment Areas?
    A. History
    B. Cost/Benefit Analysis
V. Proposed Action
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
VII. Legal Authority and Statutory Provisions

I. Introduction

    Section 211(h) of the Clean Air Act (CAA) requires that EPA 
promulgate regulations establishing a maximum RVP of 9.0 psi for 
gasoline introduced into commerce during the high ozone season. It also 
provides that EPA shall ``establish more stringent Reid Vapor Pressure 
standards in a nonattainment area as the Administrator finds 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.'' In today's action, EPA is proposing to 
establish an applicable standard for gasoline at 7.8 pounds per square 
inch (psi) under the federal volatility control program in the Denver-
Boulder-Greeley-Ft. Collins-Loveland, Colorado, 8-hour ozone 
nonattainment area (as codified in volume 40 of the Code of Federal 
Regulations (CFR) Part 81) during the high ozone season. This action 
would require the use of 7.8 psi RVP gasoline in Adams, Arapahoe, 
Boulder, Broomfield, Denver, Douglas and Jefferson counties, and in 
portions of Larimer and Weld counties.
    This notice describes our proposed action to set the RVP limit for 
gasoline

[[Page 42621]]

at 7.8 psi RVP gasoline in the Denver-Boulder-Greeley-Ft. Collins-
Loveland, Colorado, 8-hour nonattainment area during the high ozone 
season.
    This preamble is organized into six parts. Section I is this 
introduction. Section II provides the history of federal gasoline 
volatility regulation. Section III describes EPA's rulemaking actions 
to transition from the 1-hour to the 8-hour ozone standard. Section IV 
provides information to support the Agency's proposed action regarding 
tightening of the volatility standards in the prior Denver Ozone Early 
Action Compact (EAC) area that is now effectively designated 
nonattainment under the 1997 8-hour ozone standard.\1\ Section V 
summarizes the Agency's proposed action. Finally, Section VI is a 
review of applicable statutory and Executive Orders.
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    \1\ 72 FR 53952 (Sept. 21, 2007).
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II. What Is the History of Gasoline Volatility Regulation?

    In 1987, EPA determined that gasoline nationwide had become 
increasingly volatile, causing an increase in evaporative emissions 
from gasoline-powered vehicles and equipment.\2\ Evaporative emissions 
from gasoline, referred to as volatile organic compounds (VOCs), are 
precursors to the formation of tropospheric ozone and contribute to the 
nation's ground-level ozone problem. Exposure to ground-level ozone can 
reduce lung function (thereby aggravating asthma or other respiratory 
conditions), increase susceptibility to respiratory infection, and may 
contribute to premature death in people with heart and lung disease.
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    \2\ 52 FR 31274 (Aug. 19, 1987).
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    Under section 211(c) of the Clean Air Act (CAA or ``the Act''), we 
promulgated regulations on March 22, 1989, 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 \3\ program, which was designed to reduce the 
volatility of commercial gasoline during the summer ozone control 
season.\4\ On June 11, 1990, EPA promulgated more stringent volatility 
controls under Phase II of the volatility control program.\5\ These 
requirements established maximum RVP standards of 9.0 psi or 7.8 psi 
(depending on the State, the month, and the area's initial ozone 
attainment designation with respect to the 1-hour ozone National 
Ambient Air Quality Standard or ``NAAQS'') during the ozone control 
season.
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    \3\ Hawaii, Alaska and U.S. territories were exempted.
    \4\ 54 FR 11868 (Mar. 22, 1989).
    \5\ 55 FR 23658 (June 11, 1990).
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    The 1990 CAA Amendments established a new section, 211(h), to 
address fuel 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.
    On December 12, 1991, EPA modified the Phase II volatility 
regulations to be consistent with section 211(h) of the CAA.\6\ The 
modified regulations prohibited the sale of gasoline with an RVP above 
9.0 psi in all areas designated attainment for the 1-hour ozone 
standard, beginning in 1992. For areas designated as nonattainment, the 
regulations retained the original Phase II standards published in 
1990.\7\
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    \6\ 56 FR 64704 (Dec. 12, 1991).
    \7\ 55 FR 23658 (June 11, 1990).
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III. What Are the EPA Rulemaking Actions Addressing the Transition From 
the 1-Hour to the 8-Hour Ozone NAAQS?

    In July 1997, EPA promulgated a revised ozone standard which would 
be measured over an 8-hour period, i.e., the 8-hour ozone NAAQS or 
standard.\8\ The 8-hr Ozone NAAQS rule was challenged by numerous 
litigants and in May 1999, the U.S. Court of Appeals for the D.C. 
Circuit issued a decision remanding, but not vacating, the 8-hour ozone 
standard. In February 2001, the Supreme Court upheld our authority to 
set the ozone NAAQS and remanded the case to the D.C. Circuit Court for 
disposition of issues the Court did not address in its initial 
decision.\9\ The Court of Appeals addressed these remaining issues and 
upheld the 8-hour ozone NAAQS.\10\ In April 2004, EPA designated and 
classified areas for the 1997 8-hr ozone standard.\11\
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    \8\ 62 FR 38856 (July 18, 1997).
    \9\ Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001).
    \10\ American Trucking Assoc. v. EPA, 195 F.3d 4 (D.C. Cir., 
1999).
    \11\ 69 FR 23857 (Apr. 30, 2004).
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    Additionally, in April 2004, we promulgated the Phase 1 Ozone 
Implementation rule that addressed the revocation of the 1-hour ozone 
NAAQS and identified the 1-hour requirements that would remain 
applicable after revocation (i.e., the ``anti-backsliding 
provisions'').\12\ These requirements varied based on areas' 
designation for the 1-hour standard and such areas' designation for the 
1997 8-hour ozone NAAQS. Although the Phase 1 Ozone implementation rule 
was challenged in court and portions of the rule were vacated, the 
vacated portions of the rule are not relevant to today's proposed 
action.\13\
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    \12\ 69 FR 23951 (Apr. 30, 2004).
    \13\ S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. 
Cir. 2006 rehearing denied S. Coast Air Quality Mgmt. Dist. v. EPA, 
2007 U.S. App. Lexis 13751 (D.C. Cir. June 8, 2007).
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    In November 2005, EPA promulgated the Phase 2 Ozone Implementation 
rule that addressed various control and planning obligations that are 
applicable to areas designated nonattainment for the 1997 8-hour ozone 
NAAQS.\14\ No part of the Phase 2 Ozone implementation rule is relevant 
for today's proposed rulemaking.
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    \14\ 70 FR 71612 (Nov. 29, 2005).
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IV. What Information Supports More Stringent Federal RVP Requirements 
in Colorado's 8-Hour Nonattainment Areas?

A. History

    On November 6, 1991, we published ozone nonattainment designations 
for the 1-hour ozone NAAQS pursuant to sections 107(d)(1)(C), 
107(d)(2)(A), and 107(d)(4)(A) of the CAA.\15\ In that action, we noted 
that the Denver-Boulder area was designated nonattainment by operation 
of law under CAA Section 107(d)(1)(C) and we classified it as a 
``transitional area'' as determined under section 185A of the CAA. The 
Denver-Boulder nonattainment area included the following counties: all 
of Denver, Douglas, and Jefferson Counties, Boulder County, excluding 
the Rocky Mountain National Park, and the portions of Adams and 
Arapahoe Counties west of Kiowa Creek. Because the Denver-Boulder area 
was designated as a transitional ozone nonattainment area, the 
applicable volatility standard for the Denver-Boulder area, under the

[[Page 42622]]

Federal RVP rule promulgated on December 12, 1991, was 7.8 psi from 
June 1 to September 15 beginning in 1992. From 1992 through 2003, and 
in response to waiver petitions from the Governor of Colorado, however, 
we waived the 7.8 psi RVP standard for the Denver area and required the 
9.0 psi standard instead. In depth discussions of these past actions 
can be found in the applicable Federal Register notices.\16\ In 2004, 
based on monitored violations, we decided it was appropriate to require 
compliance with the 7.8 psi RVP standard in the Denver-Boulder area. As 
a result, the 7.8 psi RVP standard currently applies in the area that 
comprised the original Denver-Boulder 1-hour ozone nonattainment area 
as described in our November 6, 1991 Federal Register notice.\17\
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    \15\ 56 FR 56694 (Nov. 6, 1991).
    \16\ See 53 FR 26067 (April 30, 1993); 59 FR 15629 (April 4, 
1994); 61 FR 16391 (April 15, 1996); 63 FR 31627 (June 10, 1998); 
and 66 FR 28808 (May 24, 2001).
    \17\ 56 FR 56735 (Nov. 6, 1991).
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    As mentioned above, in 1997, EPA adopted a new, more stringent 
ozone NAAQS based on the latest ozone health effects information. The 
standard was set at a level of 0.08 ppm averaged over an 8-hour period. 
Attainment of the standard is based on the 4th maximum 8-hour ozone 
concentration recorded at each monitoring location each year, averaged 
over a three-year period.
    State and regional agencies in the Denver metropolitan area entered 
into a voluntary agreement with EPA in December 2002 that laid out a 
process for achieving attainment with EPA's 1997 8-hour ozone standard 
in an expeditious manner, but no later than December 31, 2007. Called 
the Early Action Compact for Ozone (EAC), the agreement sets forth a 
schedule for the development of technical information and the adoption 
of control measures into the State Implementation Plan (SIP) needed to 
comply with the 8-hour standard by December 31, 2007 and maintain the 
standard beyond that date. The EAC Ozone Action Plan (OAP) was adopted 
by the Colorado Air Quality Control Commission (AQCC) in March 2004 and 
submitted to EPA in the summer of 2004. EPA promulgated approval of the 
OAP in the Federal Register.\18\ A revision to the OAP to preserve the 
reductions estimated in the original plan was approved by the AQCC on 
December 17, 2006. EPA approved the revision in February 2008.
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    \18\ 70 FR 44052 (Aug. 1, 2005).
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    In April 2004, EPA designated and classified areas of the country 
that violated the 1997 8-hour ozone standard. Based on 2001-2003 design 
values, the Denver area violated the 8-hour ozone standard at three 
monitors and was included on EPA's 2004 list of nonattainment areas. In 
addition, the geographic boundaries of the earlier 1-hour nonattainment 
area were expanded. However, based on terms in the Early Action 
Compact, EPA deferred the effective date of the area's nonattainment 
designation. The deferral was conditioned on the area continuing to 
meet the deadlines in the EAC and achieving the 8-hour standard by 
December 31, 2007 (based on air quality data from the 2005-2007 ozone 
seasons).
    Despite measures in the OAP that reduced ozone-causing emissions in 
the Denver area, the area failed to achieve the standard by December 
31, 2007. A three-year (2005-2007) design value of 0.085 ppm at one 
monitor (Rocky Flats North), violated the 8-hour ozone NAAQS.
    Consequently, EPA did not continue the deferral of the effective 
date of the Denver 8-hour ozone nonattainment designation. The 
nonattainment designation became effective on November 20, 2007.\19\ 
The 8-hour ozone nonattainment area is referred to as the Denver-
Boulder-Greeley-Ft. Collins-Loveland, Colorado, ozone nonattainment 
area and includes the following counties: All of Adams, Arapahoe, 
Boulder (now including part of the Rocky Mountain National Park), 
Broomfield, Denver, Douglas and Jefferson Counties, and portions of 
Larimer and Weld Counties. The Denver-Boulder-Greeley-Ft. Collins-
Loveland 8-hour ozone nonattainment area is required to attain the 
standard as expeditiously as practicable, but no later than November 
2010.
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    \19\ 72 FR 53952 (Sept. 21, 2007).
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B. Cost Benefit Analysis

    Gasoline with 7.8 psi RVP is already required in the former 1-hour 
ozone nonattainment area, which represents a significant portion of the 
fuel used in the newly expanded area. The change proposed in this 
action extends the low RVP fuel requirement to portions of Larimer and 
Weld counties and into the remaining portions of Arapahoe, Adams, 
Boulder and Broomfield counties. Denver is located in Petroleum 
Administration for Defense Districts (PADD) IV, which is the most 
isolated area within the 48 lower states of the U.S. in terms of 
supply. PADD IV includes the Rocky Mountain states (Montana, Idaho, 
Wyoming, Utah, and Colorado). Gasoline supply to the Denver market 
originates from 6 main refiners. These refiners vary in size, refining 
capacity and complexity. These refineries are: Suncor (Commerce City, 
CO), Valero Corp. (Commerce City, CO), Conoco-Phillips (Borger, TX), 
Valero Corp. (Sunray, TX), Sinclair Oil Corp. (Caper and Rawlings, WY), 
and Frontier Oil Corp. (Cheyenne, WY and El Dorado, KS).
    The State estimates (see docket submittal) a total of 3.4 million 
gallons of gasoline per day (1.2 billion gallons per year) are consumed 
in the entire 1997 8-hour ozone nonattainment area; of that, 
approximately 665,616 gallons of gasoline per day (242.9 million 
gallons per year) are utilized in the 9.0 psi RVP areas of the 8-hour 
ozone nonattainment area. To further bound the incremental volume of 
low RVP gasoline that would need to be supplied to the expanded 8-hour 
ozone nonattainment area, the State sampled gas stations in the 
proposed expanded area and found that approximately 80% of gasoline in 
the expanded 8-hour ozone nonattainment area met Denver's more 
stringent 7.8 psi RVP base gasoline volatility requirement. This means 
that only 20% or 133,000 gallons per day, or 18.4 million gallons per 
summer (May 1st through Sept. 15th) will be affected if the area's 
volatility limit is set at 7.8 psi from the current 9.0 psi RVP. RVP 
compliance at the retail level runs from June 1st to September 15th. 
The May 1st date was used in the economic analysis to recognize that 
low RVP fuel must be produced at the refinery level prior to the retail 
compliance date such that terminals and retailers have sufficient time 
to turn tanks over prior to their required compliance.
    There are two cost estimates applied for the proposed volatility 
control. The State estimates that reducing gasoline volatility to 7.8 
psi RVP in the expanded 8-hour ozone nonattainment area could impact 
the cost of producing gasoline from 0 to 3.4 cents per gallon. We 
modeled the cost of reducing RVP when we evaluated the cost of benzene 
control for the Mobile Source Air Toxics (MSAT2) rulemaking.\20\ That 
analysis used the linear program (LP) refinery model to estimate the 
costs. Because that analysis did not estimate RVP control costs for 
PADD IV, which includes Colorado, we rely on PADD II costs to be 
reflective. The per gallon cost estimate for 7.8 psi RVP control from 
that analysis was 0.45 cents per gallon. Using 133,000 gallons of 
gasoline per day to represent the share of the expanded 8-hour ozone 
nonattainment area gasoline market that would be required to meet the 
7.8 psi RVP standard from June 1st through September 15th, at a cost of 
0.45 to 3.4

[[Page 42623]]

cents per gallon, we estimate that reducing the gasoline volatility 
limit to 7.8 psi RVP for non-blended gasoline in this area, would 
result in a cost of less than $700,000 per summer ($600 to $4500 per 
day). Therefore, the marginal costs for the expanded nonattainment area 
do not exceed the threshold that would classify this action as 
significant.
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    \20\ 72 FR 8427 (Feb. 2, 2007).
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V. Proposed Action and Rationale

    EPA is proposing to establish an applicable standard of 7.8 psi RVP 
under the federal volatility control program in the Denver-Boulder-
Greeley-Ft. Collins-Loveland, Colorado, 1997 8-hour ozone nonattainment 
area (as codified in volume 40 of the Code of Federal Regulations (CFR) 
Part 81) during the high ozone season--June 1st to September 15th of 
each year--beginning in 2010. This action would require the use of 7.8 
psi RVP gasoline in Adams, Arapahoe, Boulder, Broomfield, Denver, 
Douglas and Jefferson counties, and in portions of Larimer, and Weld 
counties.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' This action raises 
novel legal or policy issues arising out of legal mandates. 
Accordingly, EPA submitted this action to the Office of Management and 
Budget (OMB) for review under EO 12866 and any changes made in response 
to OMB recommendations have been documented in the docket for this 
action.
    In addition, the Colorado Department of Public Health and 
Environment prepared an analysis of the potential costs and benefits 
associated with this action. This analysis is contained in ``Analysis 
of Expansion of Low RVP Area by the State of Colorado''. A copy of the 
analysis is available in the docket for this action and the analysis is 
summarized in Section IV.B.

B. Paperwork Reduction Act

    The information collection requirements contained in the phase I 
and phase 2 volatility rules (55 FR 11868, March 22, 1989 and 55 FR 
23658, June 11, 1990) have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act 44 
U.S.C. 3501 et seq., and have been assigned OMB control number 2060-
0178. This action does not impose any new information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., and therefore is not subject to these requirements.

C. 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 as defined 
by the Small Business Administration's (SBA) regulations at 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 today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities directly regulated by this proposed rule are refiners, 
importers or blenders of gasoline that choose to produce or import low 
RVP gasoline for sale in the expanded portion of the Denver-Boulder-
Greeley-Ft. Collins-Loveland, CO, 8-hour ozone nonattainment area not 
already covered by low RVP requirements, and gasoline distributors and 
retail stations in those areas. We have determined that only one small 
refiner would be affected by the low RVP requirements. Other small 
entities, such as gasoline distributors and retail stations located in 
the area that will become a covered area as a result of today's action, 
will be subject to the same requirements as those small entities which 
are located in the current covered area. EPA believes the impacts these 
small entities (e.g. small blenders, importers, retailers, etc.) would 
occur primarily in the form of a slightly higher wholesale gasoline 
price which would then be passed along in product price increases. In 
the preamble of this notice, we have estimated low RVP costs to be 0.45 
to 3.4 cents/gallon during the summer volatility season. There would be 
no fuel or price difference outside the summer control season (i.e., 
during September 15 to May 1). Since all wholesale suppliers would 
increase prices by about the same amount, the competitive environment 
for small entities purchasing that gasoline should not be affected 
significantly. We continue to be interested in the potential impacts of 
the proposed rule on small entities and welcome comments on issues 
related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying affected small governments, enabling officials of 
affected small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Today's rule affects portions of the

[[Page 42624]]

Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone 
nonattainment area that were not previously part of the 1-Hour ozone 
nonattainment area. EPA estimates that a 133,000 gallons a day of 
gasoline would be affected by this rule; resulting in an economic 
impact of less than $700,000 per summer. Today's rule, therefore, is 
not subject to the requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255 August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. This 
proposed rule impacts portions of the Denver-Boulder-Greeley-Ft. 
Collins-Loveland, Colorado, 1997 8-hour ozone nonattainment area not 
previously part of the 1-Hour nonattainment area. Thus, Executive Order 
13175 does not apply to this rule.

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, Apr. 23, 1997) applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to the Executive Order because it is not 
economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. As described in section IV.B., the 
requirement to use low RVP gasoline in the expanded nonattainment area 
will result in an increase of roughly 3,200 barrels per day of low RVP 
gasoline that has to be supplied to the area. This increase in the 
volume of low RVP gasoline does not meet the threshold of being 
considered a ``significant energy action''.

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, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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

    Executive Order (EO) 12898 (59 FR 7629, Feb. 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 proposed 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 applicable 8-hour ozone NAAQS which establish the level of 
protection provided to human health or the environment. This rule will 
tighten the applicable volatility standard of gasoline during the 
summer possibly resulting in slightly lower mobile source emissions. 
Therefore disproportionately high and adverse human health or 
environmental effects on minority or low-income populations are not an 
anticipated result.

VII. Legal Authority and Statutory Provisions

    Authority for this proposed action is in sections 211(h) and 301(a) 
of the Clean Air Act, 42 U.S.C. 7545(h) and 7601(a).

List of Subjects in 40 CFR Part 80

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

    Dated: August 17, 2009.
Lisa P. Jackson,
Administrator.
    Title 40, chapter I, part 80 of the Code of Federal Regulations is 
proposed to be amended as follows:

[[Page 42625]]

PART 80--[AMENDED]

    1. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7545 and 7601(a).

    2. In Sec.  80.27(a)(2)(ii), the table is amended by revising the 
entry for Colorado and footnote 2 to read as follows:


Sec.  80.27  Controls and prohibitions on gasoline volatility.

    (a) * * *
    (2) * * *
    (ii) * * *

                                                   Applicable Standards \1\ 1992 and Subsequent Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               State                                       May              June             July            August         September
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Colorado \2\.......................................................             9.0              7.8              7.8              7.8              7.8
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Standards are expressed in pounds per square inch (psi).
\2\ The Colorado Covered Area encompasses the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone nonattainment area (see 40 CFR part 81).

* * * * *
[FR Doc. E9-20290 Filed 8-21-09; 8:45 am]
BILLING CODE 6560-50-P


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