58330 Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, 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, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999), because it merely 

approves a state rule implementing a 

federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing section 111(d) 

submissions, EPA’s role is to approve 

state plans, provided that they meet the 

criteria of the Clean Air Act. In this 

context, in the absence of a prior 

existing requirement for the State to use 

voluntary consensus standards (VCS), 

EPA has no authority to disapprove a 

state plan submission for failure to use 

VCS. It would thus be inconsistent with 

applicable law for EPA, when it reviews 

a state plan submission, to use VCS in 

place of a state plan submission that 

otherwise satisfies the provisions of the 

Clean Air Act. Thus, the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.) 

The Congressional Review Act, 5 

U.S.C. section 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. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 5, 

2005. Interested parties should 

comment in response to the proposed 

rule rather than petition for judicial 

review, unless the objection arises after 

the comment period allowed for in the 

proposal. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 62 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and record keeping 

requirements, Sulfur oxides, Waste 

treatment and disposal. 

Dated: September 20, 2005. 

Robert W. Varney, 

Regional Administrator, EPA New England. 

■ 40 CFR Part 62 is amended as follows: 

PART 62—[AMENDED] 

■ 1. The authority citation for Part 62 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7642. 

Subpart W—Massachusetts 

■ 2. Subpart W is amended by adding a 

new § 62.5450 and a new undesignated 

center heading to read as follows: 

Air Emissions From Existing Hospital/ 

Medical/Infectious Waste Incinerators 

§ 62.5450 Identification of plan-negative 

declaration. 

On August 23, 2005, the 

Massachusetts Department of 

Environmental Protection submitted a 

letter certifying that there are no 

existing hospital/medical/infectious 

waste incinerators in the state subject to 

the emission guidelines under part 60, 

subpart Ce of this chapter. 

[FR Doc. 05–20106 Filed 10–5–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[OAR–2002–0042; FRL–7981–4] 

RIN 2060–AJ97 

Control of Emissions of Hazardous Air 

Pollutants From Mobile Sources: 

Default Baseline Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This action revises the mobile 

source air toxics (MSAT) rule’s default 

baseline values for reformulated 

gasoline and conventional gasoline to 

reflect the national average toxics 

performance of gasoline during 1998–

2000. EPA’s MSAT rule, Control of 

Emissions of Hazardous Air Pollutants 

From Mobile Sources (66 FR 17230, 

March 29, 2001), requires that the 

annual average toxic performance of 

gasoline must be at least as clean as the 

average performance of the gasoline 

produced or imported during the period 

1998–2000 (known as the ‘‘baseline 

period’’). The baseline performance is 

determined separately for each refinery 

and importer, and the rule established 

default toxics baseline values for 

refineries and importers that could not 

develop individual toxics baselines. The 

default toxics baseline values are based 

on the national average performance of 

gasoline during the baseline period. 

However, at the time of the final rule, 

gasoline toxics performance data were 

not yet available for the year 2000. 

Therefore, the final rule included 

regulations directing the EPA to revise 

the default toxics baseline values in the 

rule to reflect the entire 1998–2000 

baseline period once the appropriate 

data became available. With this action, 

EPA is revising the default toxics 

baseline values for refineries and 

importers to reflect the national average 

Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 58331 

toxics performance of gasoline during 

1998–2000. 

DATES: This final rule will be effective 

on November 7, 2005. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OAR–2002–0042. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the Air 

Docket in the EPA Docket Center, EPA/ 

DC, EPA West, Room B102, 1301 

Constitution Ave., NW., Washington 

DC. This Docket Facility and the Public 

Reading Room are 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: 

Christine Brunner, OTAQ, ASD 

Environmental Protection Agency, 2000 

Traverwood, Ann Arbor, MI 48105, 

telephone number: (734) 214–4287; fax 

number: (734) 214–4816; e-mail address: 

brunner.christine@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A Does This Action Apply to Me? 

This action may affect you if you 

produce, import, distribute or sell 

gasoline. The following table gives some 

examples of entities that may have to 

follow the regulations. 

Category NAICS1 codes SIC 2 codes Examples of potentially regulated entities 

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

Industry ................................................ 422710 5171 Gasoline or Diesel Marketers and Distributors. 

422720 5172 

Industry ................................................ 484220 4212 Gasoline or Diesel Carriers. 

484230 4213 

1 North American Industry Classification System (NAICS). 

2Standard Industrial Classification (SIC) system code. 

This table is not intended to be 

exhaustive, but provides a guide for 

readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be affected by 

this action. Other types of entities not 

listed in the table could also be affected. 

To decide whether your organization 

might be affected by this action, you 

should carefully examine today’s action 

and the existing regulations in 40 CFR 

part 80. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the 

persons listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

II. Background 

As discussed in the proposal, the 

regulations promulgated in the final 

rule, Control of Emissions of Hazardous 

Air Pollutants From Mobile Sources (66 

FR 17230, March 29, 2001), also known 

as the Mobile Source Air Toxics (MSAT) 

rule, require that the annual average 

toxics performance of gasoline produced 

or imported beginning in 2002 must be 

at least as clean as the average 

performance of the gasoline produced or 

imported during the three-year period 

1998–2000 (40 CFR part 80, subpart J). 

Toxics performance is determined 

separately for reformulated gasoline 

(RFG) and conventional gasoline (CG). 

To establish a unique individual 

MSAT baseline, EPA requires each 

refiner and importer to submit 

documentation (i.e., toxics performance 

and volume data) supporting the 

determination of the baseline. Those 

refiners and importers who did not have 

sufficient refinery production or imports 

during 1998–2000 (based on the criteria 

specified in § 80.855(a) and § 80.915(a)) 

have the default baseline provided in 

§ 80.855(b)(1) as their individual MSAT 

baseline. 

As discussed in the rule, the default 

baseline is based on the average toxics 

performance of gasoline produced and 

imported for use in the United States 

during the baseline period (1998–2000). 

At the time of the rulemaking, year 2000 

batch data from refiners and importers 

were not available, so EPA included in 

the regulations an estimate of the 

default baseline, as well as a 

requirement at § 80.855(b)(2) that EPA 

update this estimate to reflect the 

gasoline produced during the entire 

baseline period, including the year 

2000. 

EPA issued a proposed a rule (70 FR 

640, January 4, 2005) which would 

fulfill the requirement at § 80.855(b)(2) 

to revise the default baseline values. 

The deadline for requesting a public 

hearing was January 24, 2005, and for 

submitting comments, February 3, 2005. 

No one requested to speak at a public 

hearing; five comments were received. 

Copies of the comments on the proposal 

can be obtained from the docket (see 

ADDRESSES). 

III. Description of Today’s Action 

A. Default Baseline Values 

EPA is finalizing the MSAT default 

compliance baseline values, or ‘‘default 

baseline values,’’ in § 80.855(b)(1) as 

proposed. For RFG, the revised value is 

26.78 percent reduction. For CG, the 

revised value is 97.38 mg/mile. The 

revised values include the appropriate 

compliance margins. 

TABLE 1.—MSAT DEFAULT BASELINE VALUES

Previous value 

(66 FR 17230, 3/29/01) 

Today’s 

action 

RFG (% reduction) ........................ 1998–2000 Average ................................................................. 26.01 ......................................... 27.48 

Default Baseline Value ∧ .......................................................... 26.711 ........................................

(correct value = 25.31) ..............

26.78 

................

CG (mg/mile) ................................. 1998–2000 Average ................................................................. 92.14 ......................................... 94.88 

Default Baseline Value ∧ .......................................................... 94.64 ......................................... 97.38 

∧ Includes compliance margin of 0.7% reduction for RFG, and 2.5 mg/mile for CG, per § 80.915(h). 1See the discussion in section ‘‘C. Correction’’. 

58332 Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 

2Federal Register Document Drafting Handbook, 

1991. 

3As mentioned in the proposal, during the 

baseline approval process, many errors were found 

in the submitted CG data. Thus, the default baseline 

values in the 2001 MSAT rule were based on a 

flawed data set, though the best available at the 

time. The CG default values contained in today’s 

rule are based on corrected batch data as well as 

(correct) year 2000 data. 

Today’s action promulgates revised 

default baseline values calculated using 

the Batch Performance methodology. In 

the proposal, we presented two 

calculation methodologies we had 

evaluated for the purposes of calculating 

the default baseline values: the Batch 

Performance method and the Fuel 

Parameter method. Both use 1998–2000 

gasoline property data submitted by 

refiners and importers. We proposed to 

use the Batch Performance method 

because it better reflects and accounts 

for the actual gasoline (based on 

composition) that was in the market 

during 1998–2000. The Batch 

Performance method also more closely 

resembles how refiners and importers 

determine compliance with the RFG and 

anti-dumping regulations, which is on a 

batch by batch basis, by analyzing each 

batch and then determining the average 

toxics performance of the batches. All 

those who commented on this aspect of 

the proposal supported the Batch 

Performance calculation methodology as 

more appropriate than the Fuel 

Parameter methodology. 

All but one of the commenters 

supported this action to revise the 

default baseline values. The commenter 

who did not support the change claimed 

that the change disproportionately 

affects blender/refiners and importers. 

While more blender/refiners and 

importers than crude-processing refiners 

are subject to the default baseline, this 

action simply updates the default 

baseline values as required by the 

original MSAT rule and does not change 

(compared to the original MSAT rule) 

those who are subject to the default 

baseline. 

Today’s action revising the default 

baseline values was required under 

§ 80.855(b)(2). Because today’s action 

completes that requirement, the 

regulatory language at § 80.855(b)(2) is 

being removed, and that paragraph 

designated as ‘‘Reserved,’’ a term used 

to maintain the continuity of 

codification in the Code of Federal 

Regulations (CFR).2

B. Effective Date 

The default baseline values 

promulgated today will be effective 

beginning with the 2006 annual 

compliance period which begins on 

January 1, 2006. EPA had proposed a 

start date of January 1, 2005. Most 

commenters did not support the 

proposed January 1, 2005, start date, 

though one entity mildly supported that 

date for the CG revised default baseline 

value, as that value is less stringent than 

the value originally promulgated. Those 

opposed to the 2005 start date stated 

that it would amount to a retroactive 

rulemaking (since the requirement 

would apply as of the January 1, 2005, 

compliance period but would be 

promulgated after that date). Most 

supported a January 1, 2006, start date, 

provided the final rule was promulgated 

before September 30, 2005, or more 

generally, a start date beginning with 

the next compliance period after 

promulgation. EPA agrees that a January 

1, 2006, start date is more appropriate 

given the timing of the proposed and the 

final rules, and is promulgating that 

start date in today’s action. We believe 

that this start date provides affected 

parties sufficient lead time to prepare 

for the changes required by today’s 

action, yet does not further delay any 

environmental benefits associated with 

the baseline value revisions. 

C. Correction 

For the reasons set out in the 

preamble to the proposed rule, today’s 

action corrects, for calendar years 2002 

through 2005, the RFG default MSAT 

value listed in the March 29, 2001, final 

rule. In that action, the compliance 

margin was incorrectly applied to the 

RFG average toxics reduction estimated 

for the period 1998–1999. Thus, in 

addition to promulgating the default 

toxics baseline that would apply 

beginning in 2006, today’s action also 

corrects the RFG default toxics baseline 

applicable to the compliance years 

2002, 2003, 2004, and 2005, by 

appropriately applying the compliance 

margin to the RFG average toxics 

reduction estimated in the 2001 final 

rule. The resulting default RFG baseline 

is 25.31% reduction. 

D. Environmental and Economic Impact 

EPA included a discussion of the 

environmental and economic impacts of 

the MSAT rule in the March 2001 

preamble to the rule. Today’s action 

updating the default baseline values 

does not significantly change those 

environmental or economic analyses, 

though EPA expects that there may be 

minor impacts. Because the RFG default 

baseline value becomes slightly more 

stringent, there may be some cost to 

affected parties to comply with this 

revised value. With this slight increase 

in stringency will likely come a small 

increase in environmental benefits 

compared to the current standard. 

However, it is difficult to estimate the 

full impact (both economic and 

environmental) since most of those 

subject to the MSAT default RFG 

baseline do not import or produce RFG 

on a regular basis or do not produce 

significant quantities of RFG or may 

never produce RFG. Based on 2003 

compliance reports, we estimate that 

about 40% of the RFG suppliers 

(refiners and importers) are subject to 

the MSAT default baseline, and none of 

those are considered small refiners or 

importers. In addition, we estimate that 

these entities supplied less than 10 

percent of the RFG volume. 

The change in the CG default baseline 

value may result in an increase in 

emissions compared to the current 

standard since the value becomes less 

stringent as a result of today’s action. 

However, given the discrepancy in CG 

data quality between the data used in 

the baseline calculation in the 2001 

MSAT rule and in this final action,3 it 

is difficult to fully determine the 

environmental impact of this change. In 

addition, most of those subject to the CG 

default baseline are importers or 

blenders who do not produce or import 

large quantities of CG and/or who 

produce or import on an irregular basis. 

The majority of the CG volume is 

subject to an individual MSAT 

standard. Thus, for the total pool of CG, 

the environmental effect of this change 

in the default baseline is likely to be 

small. 

E. Other Comments 

Several commenters addressed issues 

not part of this rulemaking and therefore 

beyond its scope. These comments are 

briefly discussed in a memo to the 

docket. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51,735 (October 4, 1993)) the Agency 

must determine whether the 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; 

Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 58333 

(2) create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) materially alter the budgetary 

impact of entitlements, 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. 

It has been determined that this rule 

is not a ‘‘significant regulatory action’’

under the terms of Executive Order 

12866 and is therefore not subject to 

OMB review. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq because the 

amendments in this rule do not change 

the information collection requirements 

of the underlying MSAT rule. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this final rule. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A petroleum 

refining company with fewer than 1500 

employees or a petroleum wholesaler or 

broker with fewer than 100 employees, 

based on the North American Industrial 

Classification System (NAICS); (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 today’s action on small 

entities, EPA has concluded that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. We have 

determined that approximately 25 

refiners and importers meet the NAICS 

criteria described above and are subject 

to the MSAT default baseline for their 

reformulated gasoline. None of these 

entities produced or imported RFG 

during the MSAT baseline period or 

since then. Based on our knowledge of 

these refiners and importers, in fact, we 

would not expect any of them to 

produce or import RFG in the near 

future. Thus, we do not expect the 

revised RFG MSAT default value to 

adversely impact these small entities 

compared to the current RFG MSAT 

default value. In the event these refiners 

and importers choose to produce or 

import RFG, they will have had 

sufficient notice of the standard. 

Additionally, because the toxics 

determination is a function of many fuel 

parameters, as well as the volumes of 

the batches, the slight increase in 

stringency of the RFG MSAT default 

value should not pose a significant 

burden toward achieving compliance. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, the 

impact of this rule would be reduced for 

small entities by various provisions in 

the MSAT rule. The MSAT rule 

contains deficit and credit carryforward 

provisions which provide compliance 

flexibility to regulated entities. Under 

these provisions, refiners and importers 

are allowed to carry a toxics deficit 

(indicating noncompliance with their 

MSAT standard) forward for one year, 

using credits generated in the prior or 

post years to make up the deficit. The 

underlying rule also includes a 

compliance margin to account for 

ordinary variations in fuel quality. 

Because RFG toxics performance is a 

function of many fuel parameters, as 

well as the volumes of the batches, the 

slight increase (about 6%) in the 

stringency of the RFG MSAT default 

value should not pose a significant 

burden toward achieving compliance. 

Beginning in 2006, the requirement that 

a refiner’s or importer’s average gasoline 

sulfur level not exceed 30 ppm should 

provide additional assistance to 

regulated entities in complying with the 

MSAT requirements, since sulfur 

reductions also decrease toxics 

emissions, as determined by the 

Complex Model. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal 

agencies to assess the effects of their 

regulatory actions on State, local, and 

tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘federal mandates’’ that may result 

in expenditures to State, local, and 

tribal governments, in the aggregate, or 

to the private sector, of $100 million or 

more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

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 contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, or tribal governments or the 

private sector. EPA has determined that 

this rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

Today’s action simply modifies the 

original rule in a limited manner, and 

would not significantly change the 

original rule. Thus, today’s final rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. 

58334 Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 

EPA has determined that this rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments, because it applies 

only to parties which produce or import 

gasoline. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The rule 

amends existing regulatory provisions 

applicable only to producers and 

importers of gasoline and does not alter 

State authority to regulate these entities. 

The amendments will impose no direct 

costs on State or local governments. 

Thus, Executive Order 13132 does not 

apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

This final rule does not have tribal 

implications, as specified in Executive 

Order 13175. It will not have 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, as 

specified in Executive Order 13175. The 

rule amends existing regulatory 

provisions applicable only to producers 

and importers of gasoline and will 

impose no direct costs on tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that are based on health or safety 

risks, such that the analysis required 

under section 5–501 of the Order has 

the potential to influence the regulation. 

This final rule is not subject to 

Executive Order 13045 because it is not 

an economically significant regulatory 

action as defined in Executive Order 

12866 and it is based on technology 

performance and not on health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (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 

As noted in the proposed rule, 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

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. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. 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 final 

rule will be effective on November 7, 

2005. 

Statutory Provisions and Legal 

Authority 

The statutory authority for the fuels 

controls in today’s final rule can be 

found in sections 202 and 211(c) of the 

Clean Air Act (CAA), as amended. 

Support for any procedural and 

enforcement-related aspects of the fuel 

controls in today’s rule, including 

recordkeeping requirements, comes 

from sections 114(a) and 301(a) of the 

CAA. 

List of Subjects in 40 CFR Part 80 

Administrative practice and 

procedure, Air pollution control, 

Confidential business information, 

Environmental protection, Gasoline, 

Labeling, Motor vehicle fuel, Motor 

vehicle pollution, Penalties, Reporting 

and recordkeeping requirements. 

Dated: September 30, 2005. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons set forth in the 

preamble, 40 CFR part 80 is amended as 

set forth below: 

Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 58335 

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, 7545, and 

7601(a). 

■ 2. Section 80.855 is amended by 

removing and reserving paragraph (b)(2) 

and revising paragraphs (b)(1)(i) and 

(b)(1)(ii) to read as follows: 

§ 80.855 What is the compliance baseline 

for refineries or importers with insufficient 

data? 

* * * * * 

(b)(1) * * * 

(i) For conventional gasoline, prior to 

January 1, 2006, 94.64 mg/mile; starting 

January 1, 2006, 97.38 mg/mile. 

(ii) For reformulated gasoline, prior to 

January 1, 2006, 25.31 percent reduction 

from statutory baseline; starting January 

1, 2006, 26.78 percent reduction from 

statutory baseline. 

(2) [Reserved] 

* * * * * 

[FR Doc. 05–20109 Filed 10–5–05; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AJ13 

Endangered and Threatened Wildlife 

and Plants; Determination of 

Endangered Status for the Salt Creek 

Tiger Beetle (Cicindela nevadica 

lincolniana) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), determine 

endangered status for the Salt Creek 

tiger beetle (Cicindela nevadica 

lincolniana), pursuant to the 

Endangered Species Act (Act) of 1973, 

as amended (Act). This species is 

endemic to the saline wetlands of 

eastern Nebraska (NE) and associated 

streams in the northern third of 

Lancaster County and southern margin 

of Saunders County. Only three small 

populations of this subspecies remain, 

and the known adult population size in 

2005 was only 153 individuals. This 

final rule extends Federal protection 

and recovery provisions of the Act to 

the Salt Creek tiger beetle. 

DATES: This final rule is effective 

November 7, 2005. 

ADDRESSES: The complete file for this 

final rule is available for inspection, by 

appointment, during normal business 

hours at the U.S. Fish and Wildlife 

Service, Nebraska Ecological Services 

Field Office, 203 West Second Street, 

Federal Building, Second Floor, Grand 

Island, NE 68801. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Steve Anschutz, Field Supervisor, at the 

above address (telephone (308) 382–

6468, extension 12; facsimile (308) 384–

8835)). 

SUPPLEMENTARY INFORMATION: 

Background 

Please see the proposed rule to list the 

Salt Creek tiger beetle as endangered 

(February 1, 2005; 70 FR 5101) for 

detailed information on the subspecies’

taxonomy, natural history, distribution, 

and population status. We include a 

brief synopsis of that information here, 

along with new information that has 

been obtained since publication of the 

proposed rule. 

The Salt Creek tiger beetle (Cicindela 

nevadica lincolniana) is an active, 

ground-dwelling, predatory insect that 

captures small arthropods in a ‘‘tigerlike’’ manner by grasping prey with its 

mandibles (mouthparts). Salt Creek tiger 

beetle larvae live in permanent burrows 

in the ground. They are voracious 

predators, fastening themselves by 

means of abdominal hooks to the tops 

of their burrows and rapidly extending 

outward to seize passing prey. Adult 

Salt Creek tiger beetle are metallic 

brown to dark olive-green above, with a 

metallic dark green underside, and 

measure 1.3 centimeters (cm) (0.5 inch 

(in.)) in total length. 

Taxonomy 

The Salt Creek tiger beetle is a 

member of the family Cicindelidae, 

genus Cicindela. Eighty-five species and 

more than 200 subspecies of tiger 

beetles in the genus Cicindela are 

known from the United States (Boyd et 

al. 1982, Freitag 1999). Originally, the 

Salt Creek tiger beetle was described by 

Casey (1916) as a separate species, C. 

lincolniana. Willis (1967) identified C. 

n. lincolniana as a subspecies of C. 

nevadica, which evolved from C. n. 

knausii. This is the currently accepted 

taxonomic classification. The evolution 

of C. n. lincolniana was a result of its 

isolation some time after the Kansan 

glaciation (435,000 to 300,000 years 

before the present), but possibly during 

the Yarmouth glaciation (300,000 to 

265,000 years before the present). Busby 

(2003) recently examined populations of 

C. nevadica and confirmed that C. n. 

lincolniana is distinctive from other 

populations of C. nevadica in the 

central Great Plains. 

Life History 

Allgeier et al. (2004) and Spomer et 

al. (2004a) indicated that the Salt Creek 

tiger beetle has a 2-year life cycle, not 

uncommon for tiger beetles. Spomer and 

Higley (2001) and Spomer et al. (2004a) 

described the life cycle of the Salt Creek 

tiger beetle in detail through egg, larval, 

and adult stages. Adults are first 

observed as early as the end of May or 

as late as mid-June, peak in late June or 

early July, and disappear by mid-to late 

July. By August, almost all adults have 

died in the field (Spomer et al. 2004a). 

Females lay their eggs along sloping 

banks of creeks in areas where the salt 

layer is exposed in the soil horizon, in 

barren salt flats of saline wetlands, or 

along saline stream edges that are found 

in close association with water, near a 

seep or stream. During the night, female 

Salt Creek tiger beetles lay about 50 eggs 

in burrows (Farrar 2003, Allgeier et al. 

2004). After the egg hatches and the 

young larva emerges from the burrow, 

the larva digs a burrow and uses its 

head to scoop out soil. Larval burrows 

can occur throughout a saline 

streambank and on barren salt flats of 

saline wetlands. Based on field 

observations, numerous saline seeps 

cause variation in soil moisture and 

salinity in the streambanks that allow 

burrows to occur away from the water’s 

edge (W. Allgeier, pers. comm. 2005). 

The small larva waits at the top of its 

burrow and ambushes prey that passes 

near the burrow entrance. The larva will 

plug its burrow and retreat inside 

during periods of high water, very hot 

weather, or very dry conditions. As the 

larva grows, it molts to a larger instar (a 

life stage between molts), enlarging and 

lengthening its burrow. For the most 

part, a Salt Creek tiger beetle larva will 

remain active until cold weather, at 

which time it plugs its burrow and 

hibernates. The Salt Creek tiger beetle 

has three instars. It probably 

overwinters as a third instar, pupates in 

May, and emerges as an adult. Before 

pupation, the larva seals its burrow 

entrance and digs a side chamber about 

5 to 8 cm (2 to 3 in.) below the soil 

surface. After the adult emerges from 

the pupa, it remains in the chamber 

until its cuticle hardens. 

Habitat 

Tiger beetle species occur in many 

different habitats, including riparian 

habitats, beaches, dunes, woodlands, 

grasslands, and other open areas 

(Pearson 1988; Knisley and Hill 1992). 

Individual tiger beetle species are 

generally highly habitat-specific because