14410 Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 

CARB’s submittal is titled, ‘‘Bay Area 

Winter Emissions Inventory for Primary 

PM2.5 & PM Precursors: Year 2010.’’ 

* * * * * 

[FR Doc. 2014–05527 Filed 3–13–14; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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. 

Category NAICS codes a SIC codes b Examples of potentially regulated entities 

Industry ..................................................................... 324110 2911 Petroleum Refiners. 

Industry ..................................................................... 422710 

422720 

5171 

5172 

Gasoline Marketers and Distributors. 

Industry ..................................................................... 484220 

484230 

4212 

4213 

Gasoline Carriers. 

a North American Industry Classification System (NAICS). 

bStandard 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 

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Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 14411 

1Subsequent 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. 

redesignated to attainment for the onehour 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 ‘‘nonregulatory’’ 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). 

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 ‘‘antibacksliding,’’ 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 antibacksliding approach and established a 

trigger date for determining which 1- 

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14412 Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 

2One 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. 

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 ‘‘bumpedup’’ 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 bumpup 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. 

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 

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Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 14413 

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). 

4The 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. 

5A 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. 

6The benzene standards are in terms of a volume 

percent of the fuel, not a percent emissions 

reduction. 

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 antibacksliding 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

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 

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 

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14414 Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 

7This 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. 

8Since 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 . 

9There 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. 

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 twophase 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. 

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

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 

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10At 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. 

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. 

12Clean Air Act section 211(k) and in 40 CFR 

80.40 through 80.70. 

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). 

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. 

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

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 

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14416 Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 

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. 

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Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 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-forprofit 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 

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14418 Federal Register / Vol. 79, No. 50 / Friday, March 14, 2014 / Rules and Regulations 

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 

■ 1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7542, 7545, and 

7601(a). 

■ 2. Section 80.70 is amended by 

revising paragraph (m)(2) to read as 

follows: 

§ 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 131017871–4175–02] 

RIN 0648–BD72 

List of Fisheries for 2014 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) publishes its 

final List of Fisheries (LOF) for 2014, as 

required by the Marine Mammal 

Protection Act (MMPA). The final LOF 

for 2014 reflects new information on 

interactions between commercial 

fisheries and marine mammals. NMFS 

must classify each commercial fishery 

on the LOF into one of three categories 

under the MMPA based upon the level 

of mortality and serious injury of marine 

mammals that occurs incidental to each 

mstockstill on DSK4VPTVN1PROD with RULES