[Federal Register Volume 65, Number 230 (Wednesday, November 29, 2000)]
[Rules and Regulations]
[Pages 71067-71073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30273]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-6908-8]
RIN 2060-AI60


Petition by American Samoa for Exemption from Anti-Dumping 
Requirements for Conventional Gasoline

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (``EPA'' or ``the 
Agency'') is granting a petition by the Territory of American Samoa for 
exemption from the anti-dumping requirements for gasoline sold in the 
United States after January 1, 1995. This action is being taken because 
compliance with the anti-dumping requirements is not feasible or is 
unreasonable due to American Samoa's unique geographic location and 
economic factors. If the gasoline anti-dumping exemption were not 
granted, American Samoa would be required to import gasoline from a 
supplier meeting the anti-dumping requirements adding a considerable 
expense to gasoline purchased by the American Samoan consumer. American 
Samoa is in full attainment with the National Ambient Air Quality 
Standard (``NAAQS'') for ozone. This action is not expected to cause 
harmful effects to the citizens of American Samoa.
    EPA is concurrently proposing in the Proposed Rules section of 
today's Federal Register approval of American Samoa's petition for 
reasons discussed in this document. The EPA will not institute a second 
comment period on this document. Any parties interested in commenting 
on this action should do so at this time. All correspondence should be 
directed to the addresses shown below.

DATES: This action will be effective on January 29, 2001, unless the 
Agency receives adverse or critical comments or a request for a public 
hearing by December 29, 2000. If the Agency receives adverse or 
critical comments, EPA will publish in the Federal Register timely 
notice withdrawing this action and the comments will be addressed in a 
subsequent final rule. If a request for a public hearing is received, 
this will be addressed in a subsequent Federal Register document.

ADDRESSES: Any persons wishing to submit comments should submit them 
(in duplicate, if possible) to the two dockets listed below, with a 
copy forwarded to Marilyn Winstead McCall, U.S. Environmental 
Protection Agency, Transportation and Regional Programs Division, 1200 
Pennsylvania Avenue, NW., (Mail Code: 6406J), Washington, DC 20460.
    Public Docket: Materials relevant to this petition are available 
for inspection in public docket A-99-17 at the Air Docket Office of the 
EPA, Room M-1500, 401 M Street, SW., Washington, D.C. 20460, (202) 260-
7548, between the hours of 8 a.m. to 5:30 p.m., Monday through Friday. 
A duplicate public docket A-91-40 has been established at U.S. EPA 
Region IX, 75 Hawthorne Street, (Mail Code: A-2-1), 17th Floor, San 
Francisco, CA 94105, (415) 744-1225, and is available between the hours 
of 8:30 a.m. to noon, and from 1 p.m. to 5 p.m., Monday through Friday. 
As provided in 40 CFR part 2, a reasonable fee may be charged for 
copying services.

FOR FURTHER INFORMATION CONTACT: Marilyn Winstead McCall at (202) 564-
9029, facsimile: (202) 565-2085, e-mail address: 
<a href="/cdn-cgi/l/email-protection#430e2000222f2f6d2e342a2d3037262227032633222e222a2f6d2633226d242c35"><span class="__cf_email__" data-cfemail="feb39dbd9f9292d0938997908d8a9b9f9abe9b8e9f939f9792d09b8e9fd0999188">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially affected by this rule are those involved with 
the production, distribution, importation, and sale of conventional 
gasoline used in the Territory of American Samoa. Regulated categories 
and entities include:

[[Page 71068]]



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Category:.........................  Examples of regulated entities:
Industry..........................  Gasoline refiners and importers,
                                     gasoline terminals, gasoline
                                     truckers, blenders, retailers and
                                     wholesale purchaser-consumers.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
rule. This table lists the types of entities we are now aware could 
potentially be affected by this rule. Other types of entities not 
listed could also be affected by this rule. To determine whether you 
are affected by this rule, you should carefully examine the 
applicability requirements in Secs. 80.90 and 80.125, Subparts E and F 
of title 40 of the Code of Federal Regulations (``CFR''). If you have 
any questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

I. Background

A. Why Is EPA Publishing This Rule Without Prior Proposal?

    EPA views this rule as a noncontroversial amendment to the gasoline 
anti-dumping regulations and anticipates no adverse comment. American 
Samoa is in attainment with the air quality standards. However, in the 
``Proposed Rules'' section of today's Federal Register, we are 
publishing a separate document that will serve as the proposal to 
approve the direct final rule if adverse comments are filed. If adverse 
comments are filed, please see EFFECTIVE DATE section above.

B. What Did American Samoa Request in Its Petition?

    On March 9, 1999, the Honorable Tauese P.F. Sunia, Governor of the 
Territory of American Samoa, petitioned the Agency for an exemption 
from the requirements of regulations in 40 CFR Part 80 that require 
conventional gasoline meet certain anti-dumping specifications. 
Specifically, the petition requested ``* * * exemption from the 
regulations of 40 CFR Part 80 Subparts E and F for the Anti-Dumping of 
Fuel.'' \1\
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    \1\ Letter from Governor Tauese P.F. Sunia, American Samoa, to 
Felicia Marcus, Regional Administrator, U.S. Environmental 
Protection Agency, Region 9, dated March 9, 1999.
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C. What Are the Gasoline Anti-Dumping Requirements and How Do They 
Apply to American Samoa?

    In 1993, EPA promulgated regulations on the production and sale of 
reformulated gasoline and gasoline that is not required to be 
reformulated, or ``conventional'' gasoline. For conventional gasoline, 
the gasoline produced by a refiner or importer must not be more 
polluting or cause more motor vehicle emissions than gasoline produced 
by that refiner or importer in 1990. In the production of reformulated 
gasoline (a gasoline that has been further processed and refined to 
reduce components that contribute most to pollution), a refiner cannot 
``dump'' into its conventional gasoline pool those polluting components 
removed from the refiner's reformulated gasoline. This is commonly 
called the ``anti-dumping'' gasoline program, and these requirements 
apply to all gasoline produced, imported, and consumed in the United 
States and its territories.

D. What Are the Statutory Provisions Governing This Petition?

    Section 211(k) of the Clean Air Act (``CAA'' or the ``Act'') 
requires that gasoline be reformulated to reduce motor vehicle 
emissions of toxic and tropospheric ozone-forming compounds, and that 
this reformulated gasoline be sold in the largest metropolitan areas 
with the most severe summertime ozone levels and in other ozone 
nonattainment areas that opt into the program. Section 211(k)(8) 
prohibits conventional gasoline sold in the rest of the country from 
becoming any more polluting than it was in 1990, thereby ensuring that 
refiners do not dump fuel components into conventional gasoline causing 
environmentally harmful emissions restricted in reformulated gasoline. 
Regulations were promulgated December 15, 1993, and are codified in 40 
CFR Part 80.
    Section 325 of the Clean Air Act provides that, upon petition by 
the Governor of Guam, American Samoa, the Virgin Islands, or the 
Commonwealth of the Northern Mariana Islands, the Administrator may 
exempt any person or source in such territory from various requirements 
of the Act. It states that ``* * * such exemption may be granted if the 
Administrator finds that compliance with such requirements is not 
feasible or is unreasonable due to unique, geographical, 
meteorological, or economic factors of such territory, or such other 
local factors as the Administrator deems significant.''

II. Discussion of American Samoa's Petition

A. Are There Unique Geographic, Demographic and Climatic Factors in 
American Samoa That Affect Their Petition?

    American Samoa is a group of five volcanic islands and two coral 
atolls, located in Polynesia, approximately 2,300 miles southwest of 
Hawaii and 1,600 miles northeast of New Zealand. American Samoa 
contains approximately 76 square miles, about two-thirds of which are 
mountainous with steep slopes that make it virtually inaccessible. The 
largest island is Tutuila which is approximately 53 square miles. The 
small island of Aunu'u lies near the east end of Tutuila. The other 
inhabited islands are Tau, Ofu, Olesaga and Swain's Island. Rose Atoll 
is uninhabited. The population was estimated to be 52,400 in 1993--over 
96% of which live on the island of Tutuila.
    American Samoa has a tropical, maritime climate, with abundant 
rainfall, winds, and warm, humid days and nights. The mean annual 
temperature is about 80 degrees. Rainfall is about 125 inches a year 
near the airport, but varies greatly over small distances because of 
the mountainous topography. Pago Pago (the major city) which is less 
than 4 miles north of the airport and at the head of a hill-encircled 
harbor is open to the prevailing winds and receives nearly 200 inches 
of rainfall a year. The crest of the mountain range receives over 250 
inches each year. American Samoa's petition states that due to the 
prevailing easterly trade winds throughout the year, its tropical 
climate, remoteness, and low population, the air quality in the 
territory is generally pristine. It is in attainment with the air 
quality standards including the National Ambient Air Quality 
(``NAAQS'') standard for ozone.

B. Are There Economic Factors in American Samoa That Are Unique and 
That Affect Their Petition?

    Because of its remoteness from the mainland, American Samoa has 
imported its fuel from refineries in Hawaii and the Far East. American 
Samoa's March 9, 1999 petition stated that at the time the petition was 
filed, almost all of their motor vehicle

[[Page 71069]]

gasoline has been supplied by the Tesoro Corporation refinery in 
Hawaii. This gasoline complied with the gasoline anti-dumping 
regulations for conventional gasoline. Motor vehicle gasoline 
represents only about 11 percent of the fuel market in the territory; 
diesel fuel represents 72 percent; and jet fuel represents about 17 
percent. ExxonMobil (``Mobil'') supplies the islands with about 65% of 
the diesel fuel from its refineries in Australia and Singapore.

C. Other Significant Local Factors

    American Samoa's petition states that in 1990, American Samoa's 
annual per capita income was $3,039. The U.S. median income is about 
$21,120.\2\ Moreover, due to relatively high transportation costs, 
retail gasoline prices are already significantly higher in American 
Samoa than in the continental U.S. In August 2000, the U.S. average 
price of regular unleaded gasoline at the retail level was $1.48 per 
gallon.\3\ In American Samoa, the average price is 20 cents higher than 
that on the mainland. Therefore, in August 2000, it was around $1.68 
per gallon.
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    \2\ U. S. Bureau of Census (Phone conversation December 1999 
with EPA employee).
    \3\ ``The Oil Daily,'' Vol. 50, No. 167, August 30, 2000, page 
7.
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    There are 5,126 registered motor vehicles in American Samoa. The 
motor gasoline market is small compared to the diesel market. The 
American Samoan government owns its own fuel terminal and fuel dock and 
selects a terminal operator to manage the facilities. A U.S. District 
Court (for California) determined in 1973 that one oil marketer had 
violated the Sherman Act by attempting to monopolize the distribution 
and sale of petroleum products in American Samoa. Subsequently, the 
Court issued a ``Court Plan,'' the goal of which was to assure an equal 
competitive position to all suppliers of petroleum products in American 
Samoa, including the opportunity to use the tank farm for storage on a 
shared basis. The American Samoa government's aim was to assure that 
American Samoans receive the benefits of competition by having a choice 
of products at the lowest prices.
    Tesoro has supplied American Samoa with complying gasoline from 
1995 through 1999. During this time, Tesoro also operated the fuel 
terminal in its capacity as terminal operator.

D. Enforcement Deferred (``Interim'') Period

    Since the petition was filed, EPA learned in November 1999, that 
Tesoro was withdrawing from the American Samoan gasoline market 
effective January 1, 2000.\4\ This company has been supplying American 
Samoa with about 80% of its gasoline, whereas Mobil has been supplying 
about 20% , albeit at a higher price (due to the need to make special 
runs of compliant product from the company's Melbourne, Australia 
refinery). However, this company does not always supply fuel from the 
Australian refinery--sometimes their cargoes originate from a Singapore 
refinery which does not have the capability of making complying 
gasoline.
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    \4\ Letter from Jack Kachmarik, Chief Petroleum Officer, 
American Samoa Government to EPA, dated November 12, 1999.
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    Negotiations with BP South West Pacific Limited (``BP'') have 
concluded in BP's taking over the gasoline supply commitments formerly 
held by Tesoro, beginning January 1, 2000. They estimate that ``huge 
costs'' will result if they are required to comply with the anti-
dumping requirements, with as much as 14 to 18 cents more per gallon 
being charged the American Samoan consumer. Since a gallon of gasoline 
on the islands is already 20 cents more per gallon than on the U.S. 
mainland, the cost to the American Samoan citizen for a gallon of 
complying gasoline could be as much as 38 cents more per gallon. 
Consequently, American Samoa petitioned EPA on December 30, 1999, for 
``* * * enforcement discretion by declining to enforce the gasoline 
anti-dumping regulations pending the effectiveness of the anticipated 
rule.'' \5\ Subsequently, EPA granted enforcement discretion for a one 
year period--from January 1, 2000 to January 1, 2001.\6\
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    \5\ Letter from Tauese P.F. Sunia, Governor of the Territory of 
American Samoa, to Mr. Robert W. Perciasepe, dated December 30, 
1999.
    \6\ Letter from Steven A. Herman, Assistant Administrator, EPA 
Office of Enforcement and Compliance Assurance, to Governor Tauese 
P.F. Sunia, dated January 14, 2000.
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    The end result of the November 1999 notification of Tesoro's 
withdrawing from the American Samoan market is that American Samoa is 
left with two importers (Mobil and BP) that are willing to supply 
American Samoa with gasoline. The cost of the gasoline supplied will be 
significantly lower if they are not required to comply with the 
gasoline anti-dumping regulations.

III. Clarification of the Gasoline Anti-Dumping Requirements 
(Subparts E and F)

A. How Is Compliance With the Gasoline Anti-Dumping Requirements 
Measured?

    Compliance is measured by comparing emissions of a refiner's or 
importer's conventional gasoline against those of a baseline gasoline--
either a baseline based on the quality of the refiner's or importer's 
1990 gasoline or on a statutory baseline specified by the Clean Air 
Act. EPA's regulations at 40 CFR part 80, subparts E and F require a 
refiner or importer that establishes a baseline to hire an independent 
auditor to verify its baseline parameters. They also require that each 
refiner or importer maintain records and report to EPA certain 
information pertaining to production of conventional gasoline, 
beginning in February 1996, and every subsequent year.\7\
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    \7\ See 40 CFR part 80, Secs. 80.105 and 80.125.
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B. Which of the Gasoline Parameters Are Required To Meet the Baseline 
Under the Anti-Dumping Regulations?

    Section 211(k)(8) requires that average per gallon emissions of 
volatile organic compounds (VOC), carbon monoxide (CO), nitrogen oxides 
( NO<INF>X</INF>) and toxics due to conventional gasoline produced by a 
refiner or importer not increase over 1990 levels for each refiner or 
importer. Since VOC and CO emission increases are expected to be 
controlled through other regulatory programs, the anti-dumping 
provisions are limited to regulating emissions of toxics and 
NO<INF>X</INF> emissions.
    Pursuant to section 211(k)(8) of the Act, EPA adopted the 
regulations in subpart E to address exhaust benzene, total exhaust 
toxics and NO<INF>X</INF> emissions from conventional gasoline use. 
Under a simple emissions model, applicable from January 1, 1995 to 
January 1, 1998, a limit is set for sulfur, olefins and T90 as well as 
exhaust benzene. A more complex emissions model was required January 1, 
1998, with limits set on exhaust toxics and NO<INF>X</INF>. All the 
limits are set as annual averages.

IV. Rationale for Exemption

A. Unique Geographic and Economic Factors Relating to an Exemption in 
American Samoa.

    Due to the distance from the U.S. mainland, American Samoa has been 
supplied with most of its gasoline by Tesoro Corporation's Hawaii 
refinery. There is another company operating a refinery in Hawaii; 
however, since 1991, only the Tesoro refinery has been

[[Page 71070]]

interested in servicing the American Samoan gasoline market. Prior to 
1991, both Shell Oil and Mobil Oil supplied gasoline to American Samoa. 
These companies have since withdrawn as full time suppliers from the 
American Samoan market. Therefore, since 1995--the year the gasoline 
anti-dumping regulations went into effect--American Samoa has been 
mainly supplied with gasoline complying with the anti-dumping 
regulations from the Tesoro Hawaiian refinery.
    Tesoro was also selected to operate the petroleum terminals on the 
islands in a 1998 request for proposals issued by the American Samoan 
government. American Samoa's petition states that a virtual monopoly 
situation exists by this one company by their controlling the operation 
of the terminals as well as almost all of the gasoline supply. The 
petition states that this is one reason why other companies have been 
discouraged from entering the gasoline market in American Samoa.
    The Court Plan mentioned previously was modified in 1994 retaining 
the Court's jurisdiction over the terminal facilities and preserving 
the ability of potential new suppliers to use the facilities on a 
shared-cost basis. The supporting material presented to the court 
included a permit and agreement between American Samoa and the terminal 
operator which contained a modified maximum allowable price formula as 
a safeguard against excessive monopoly pricing by the terminal 
operator. American Samoa's petition states that because of this dual 
responsibility by Tesoro and the fact that only Tesoro was capable of 
supplying complying gasoline on a full time basis, a monopoly situation 
has existed and, therefore, competition was discouraged.
    Two other companies--Mobil and BP--entered the fuel market in 1998, 
and mainly import diesel fuel to the islands. They have not been able 
to import gasoline that meets the anti-dumping regulations (except for 
a small amount of ``special order'' gasoline imported from Australia by 
Mobil that is offered at a much higher price than that offered by 
Tesoro). Mobil and BP operate refineries in Australia and Singapore. As 
previously stated, Mobil operates a refinery in Melbourne, Australia 
that makes some gasoline which complies with the anti-dumping 
regulations. However, because this gasoline is ``specially ordered,'' 
it costs the American Samoan consumer about 10 cents more per gallon 
above the normal prices, and Mobil cannot assure a continuous supply. 
Also, Mobil does not always supply the American Samoan fuel market out 
of their Melbourne refinery. Some cargoes (containing mostly diesel 
fuel) come from their refineries in Singapore which do not make the 
``special-order'' gasoline.

B. Exemption Basis

    Mobil and BP have indicated an interest in supplying the American 
Samoa market by agreeing to take over the marketing commitments 
formerly held by Tesoro after that company withdrew in January 2000. 
\8\ Both of these companies supply gasoline to Fiji, Western Samoa and 
other Pacific Islands. Transportation costs dictate that these Pacific 
Islands' markets be supplied by Far Eastern refineries. While EPA's 
regulations do not apply to those Far Eastern refineries, they do apply 
to any importer of gasoline into the U.S. and its territories. The 
American Samoa gasoline market is a very small market--only 
approximately 5,000,000 gallons of motor gasoline are imported per 
year.
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    \8\ See Letter from Jack Kachmarik, Chief Petroleum Officer, 
American Samoa Government, to EPA, dated November 12, 1999.
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    After the expiration of the interim period and if the exemption is 
not granted, Mobil and BP would be required to supply American Samoa 
with gasoline that does not exceed the statutory baseline emissions for 
exhaust toxics and NO<INF>X</INF>--the two emissions controlled by the 
anti-dumping program. The statutory baseline is a combination of summer 
and winter components, including emissions calculated under the 
appropriate seasonal version of the Complex Model, the tool used in 
determining compliance with the reformulated gasoline and anti-dumping 
regulations. \9\ Additionally, the anti-dumping regulations require 
that the emissions of gasoline sold in areas not subject to EPA's 
gasoline volatility requirements \10\ which include American Samoa and 
other U.S. territories, be evaluated using only the winter version of 
the Complex Model. As discussed in a recent rulemaking (see 64 FR 
30904, June 9, 1999), it is somewhat more difficult to produce or 
import gasoline which meets the statutory baseline requirements when 
that gasoline must all be evaluated using the winter version of the 
Complex Model, because the winter version predicts higher emissions 
than the summer version, and, as stated, the statutory baseline is a 
combination of the summer and winter components. In the referenced 
rulemaking, under certain conditions, a refiner is allowed to evaluate 
its gasoline using only the summer model (given American Samoa's 
climate, it would be more appropriate to use the summer model if a 
single seasonal model is being considered) and compare the results to 
only the summer baseline. The quality of a few batches shipped to 
American Samoa (by BP) in 2000 (February 8, 2000 to June 23, 2000, 
which represents about 30 percent of the total gasoline volume imported 
to the islands annually), showed that the gasoline, when evaluated with 
either seasonal model and compared to the corresponding statutory 
seasonal baseline, was close to complying. However, both Mobil and BP 
have indicated that the gasoline sent to Samoa will be produced at a 
number of foreign refineries and that such quality cannot be 
guaranteed, especially considering transportation costs and the small 
volumes of gasoline used in American Samoa. In this situation, 
compliance with the statutory baseline (either the annual average 
statutory baseline or either seasonal statutory baseline) can be even 
more onerous because the quality (with regard to fuel properties like 
benzene and sulfur content) of gasoline produced at Far Eastern 
refineries can be quite different from that of gasoline produced by the 
typical mainland U.S. refinery. For example, Singapore refineries 
typically produce gasoline having lower concentrations of sulfur and 
olefins and relatively higher concentrations of benzene and aromatics. 
EPA understands that gasoline being imported from the Singapore 
refineries would be similar in quality to that being imported into Guam 
and the Northern Mariana Islands where exemptions from the gasoline 
anti-dumping regulations apply. For a more detailed discussion of these 
differences, please see notices of direct final decision exempting 
gasoline from the anti-dumping requirements in Guam and the Northern 
Mariana Islands. \11\
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    \9\ See 40 CFR 80.101(f).
    \10\ See 40 CFR 80.27.
    \11\ See 61 FR 53854, October 16, 1996, and 62 FR 63855, 
December 3, 1997, respectively.
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    Because of these differences in fuel quality, and because of the 
requirement that American Samoa gasoline be evaluated using the winter 
version of the Complex Model, EPA believes the Far Eastern gasoline 
that would be available to American Samoa cannot consistently satisfy 
the anti-dumping requirements when compared to statutory baseline 
gasoline. Additionally, EPA believes that consistent compliance with 
either the winter or summer statutory baseline

[[Page 71071]]

(after evaluating the gasoline using the corresponding seasonal model) 
cannot practically be guaranteed (i.e., without unacceptable economical 
impacts to the American Samoa consumer and without environmental 
benefit), and thus is not a reasonable alternative to exemption from 
the anti-dumping requirements in this situation. If this exemption were 
not granted, importers of gasoline to American Samoa would have to seek 
out and transport gasoline with the qualities which would allow it to 
comply with the statutory baseline annual average exhaust toxics and 
NO<INF>X</INF> emissions. This would significantly increase the price 
of gasoline in American Samoa because transportation costs for such a 
small quantity of gasoline would be high. Gasoline in American Samoa is 
already 20 cents per gallon higher than on the mainland, and BP and 
Mobil state that price increases of 10 cents more per gallon could be 
added to the already high price of gasoline in American Samoa if the 
petition is not granted. Since Tesoro, whose refinery is located in 
Hawaii, withdrew from the American Samoa market, there have been no 
importers in the Pacific Rim that have indicated to EPA their 
willingness to supply American Samoa with gasoline that complies with 
the statutory baseline. Therefore as no optional sources of complying 
gasoline have been forthcoming, American Samoa is reliant upon BP and 
Mobil Far Eastern refineries to fill their gasoline supply. Both 
companies state that if the exemption is granted the price of gasoline 
could decrease by 5 to 10 cents per gallon. This decrease would be 
partly due to increased competition and to these companies' abilities 
to sell solely on the basis of lower Singapore prices, which alone, 
would drop the price by 4 to 5 cents per gallon. EPA does not expect 
that exempting gasoline imported to American Samoa from the anti-
dumping requirements will negatively affect air quality.

Final Action

    EPA has decided to grant a petition by the Territory of American 
Samoa and exempt the Territory of American Samoa from compliance with 
the anti-dumping standards for conventional gasoline under section 
211(k)(8). The Agency believes that compliance with the gasoline anti-
dumping requirements is unreasonable given the significantly increased 
costs to consumers in American Samoa in achieving compliance. These 
increased costs are directly attributable to American Samoa's location 
and resulting inability of importers to comply with the anti-dumping 
requirements without significantly greater costs than those expected 
for importers in the U.S. mainland. Gasoline price increases of the 
magnitude expected to result from compliance with the conventional 
gasoline anti-dumping regulations at 40 CFR part 80, subparts E and F 
could be especially burdensome for the many citizens of American Samoa.
    In addition, despite its geographic remoteness from the mainland, 
compliance with the anti-dumping provisions might require that American 
Samoa import conventional gasoline from the U.S. mainland, greatly 
increasing the cost of conventional gasoline for the American Samoans. 
EPA finds that these economic factors are unique to the Territory of 
American Samoa.
    This exemption applies to all importers and suppliers of gasoline 
in American Samoa. EPA will review and reopen this exemption in the 
future if conditions change to warrant such an action.

VI. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866, the Agency must determine whether this 
regulatory action is ``significant'' and therefore subject to OMB 
review and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866.

B. Paperwork Reduction Act

    This action does not add any information collection requirements or 
increase 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. 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 that 
achieve 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.
    Today's rule imposes no enforceable duty or mandate on any State, 
local or tribal governments or the private sector. Rather, today's rule 
removes enforceable duties and mandates on these entities.

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

    Protection of Children from Environmental Health Risks and Safety 
Risks 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

[[Page 71072]]

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 Executive Order 13045 because it is not 
an economically significant regulatory action as defined by 12866, and 
it does not address an environmental health or safety risk that would 
have a disproportionate effect on children.

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'' as defined in the 
Executive Order include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to OMB, in a separately identified section of the preamble 
to the rule, a federalism summary impact statement (FSIS). The FSIS 
must include a description of the extent of EPA's consultation with 
State and local officials, a summary of the nature of their concerns 
and EPA's position supporting the need to issue the regulation, and a 
statement of the extent to which the concerns of State and local 
officials have been met. Also, when EPA transmits a draft final rule 
with federalism implications to OMB for review pursuant to Executive 
Order 12866, it must include a certification from EPA's Federalism 
Official stating that EPA has met the requirements of Executive Order 
13132 in a meaningful and timely manner.
    This rule will not have a substantial direct effect on States or 
local governments, or on the distribution of power and responsibilities 
among the various levels of government as specified in Executive Order 
13132. This rule, by exempting the gasoline anti-dumping requirements 
in American Samoa, removes the federal role of mandating and enforcing 
these gasoline requirements.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 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 
rule does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

G. Congressional Review

    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. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement, 5 U.S.C. 808(2). 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. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(a).

H. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental 
jurisdictions.
    After considering the economic impacts of today's direct final 
rule, I certify that this action will not have a significant economic 
impact on a substantial number of small entities. In determining 
whether a rule has a significant economic impact on a substantial 
number of small entities, the impact of concern is any significant 
adverse economic impact on small entities, since the primary purpose of 
the regulatory flexibility analyses is to identify and address 
regulatory alternatives ``which minimize any significant economic 
impact of the proposed rule on small entities.'' 5 U.S.C. Sections 603 
and 604. Thus an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
this rule removes the gasoline anti-dumping regulations from American 
Samoa, we conclude that today's direct final rule will relieve 
regulatory burden for all small entities.

I. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless, the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns and statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting

[[Page 71073]]

elected officials and other representatives of Indian tribal 
governments to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.
    Today's rule does not create any mandates or impose any obligations 
on State, Local, or Tribal governments, and thus does not significantly 
or uniquely affect the communities of Indian tribal governments. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

J. Electronic Copies of Rule

    A copy of this action is available on the Internet at http://www.epa.gov/otaq under the title: ``Direct Final Rule on Petition by 
American Samoa for Exemption from Anti-Dumping Requirements for 
Conventional Gasoline.''

K. Statutory Authority

    Authority for the action described in this notice is in section 
325(a)(1) (42 U.S.C. 7625-1(a)(1)) of the Clean Air Act as amended.


    Dated: November 17, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-30273 Filed 11-28-00; 8:45 am]
BILLING CODE 6560-50-P


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