61358 Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), because it merely 

makes a determination based on air 

quality data and results in the 

suspension of certain Federal 

requirements, 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 determines that air quality in 

the affected area is meeting Federal 

standards. 

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 because it would 

be inconsistent with applicable law for 

EPA, when determining the attainment 

status of an area, to use voluntary 

consensus standards in place of 

promulgated air quality standards and 

monitoring procedures that otherwise 

satisfy the provisions of the Clean Air 

Act. 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.). 

Under Executive Order 12898, EPA 

finds that this rule involves a 

determination of attainment based on 

air quality data and will not have 

disproportionately high and adverse 

human health or environmental effects 

on any communities in the area, 

including minority and low-income 

communities. 

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. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

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 15, 

2008. 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 to reclassify the 

HGB area as a severe ozone 

nonattainment area and to adjust 

applicable deadlines may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxides, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: October 8, 2008. 

Richard E. Greene, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart SS—Texas 

■ 2. Section 52.2275 is amended by 

adding paragraph (f) to read as follows: 

§ 52.2275 Control strategy and 

regulations: Ozone. 

* * * * * 

(f) Determination of Attainment. 

Effective November 17, 2008 EPA has 

determined that the Dallas/Fort Worth 

(DFW) 1-hour ozone nonattainment area 

has attained the 1-hour ozone standard. 

Under the provisions of EPA’s Clean 

Data Policy, this determination 

suspends the requirements for this area 

to submit an attainment demonstration 

or 5% increment of progress plan, a 

reasonable further progress plan, 

contingency measures, and other State 

Implementation Plans related to 

attainment of the 1-hour ozone NAAQS 

for so long as the area continues to 

attain the 1-hour ozone NAAQS. 

[FR Doc. E8–24592 Filed 10–15–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–2005–0036; FRL–8729–7] 

RIN 2060–A089 

Control of Hazardous Air Pollutants 

From Mobile Sources:Early Credit 

Technology Requirement Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

revise the February 26, 2007 mobile 

source air toxics rule’s requirements 

that specify which benzene control 

technologies a refiner may utilize to 

qualify to generate early benzene 

credits. This action will allow another 

specific benzene control technology, 

benzene alkylation, in addition to the 

four operational or technological 

changes specified in the current rule. 

This action also includes a general 

provision that allows a refiner to submit 

a request to EPA to approve other 

benzene-reducing operational changes 

or technologies for the purpose of 

generating early credits. 

DATES: This final rule is effective on 

December 15, 2008. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–2005–0036. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The EPA/DC 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Eastern Standard 

Time, 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, Office of 

Transportation and Air Quality, 

Assessment and Standards Division, 

Environmental Protection Agency, 2000 

Traverwood, Ann Arbor, MI 48105; 

telephone number: (734) 214–4287; fax 


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Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations 61359 

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

brunner.christine@epa.gov. Alternative 

contact: Assessment and Standards 

Division Hotline, telephone number: 

(734) 214–4636; e-mail address: 

asdinfo@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Does This Action Apply to Me? 

This action may affect you if you 

produce 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. 

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. 

Outline of This Preamble 

I. Background 

II. Response to Comments 

III. This Action 

IV. Environmental and Economic Impact 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

VI. Statutory Provisions and Legal Authority 

I. Background 

The Control of Hazardous Air 

Pollutants From Mobile Sources final 

rule (also known as the Mobile Source 

Air Toxics rule or MSAT2) was 

published on February 26, 2007 (72 FR 

8428). That rule requires that refiners 

and importers produce gasoline that has 

an annual average benzene content of 

0.62 volume percent (vol%) or less, 

beginning in 2011. (See § 80.1230(a).) 

The rule also requires that no refiner or 

importer have an actual average gasoline 

benzene level greater than 1.3 vol%. 

After achieving an actual annual average 

benzene level of 1.3 vol%, refiners and 

importers may use benzene credits to 

reduce their average benzene level to 

0.62 vol%. Refiners may generate 

benzene credits for their own use or to 

sell to others, in two ways. Once the 

program begins in 2011, a refiner 

generates credits (known as standard 

credits) when its average annual 

gasoline benzene level is less than 0.62 

vol%. 

Refiners may also generate credits 

prior to 2011. These credits are called 

early credits, and are the subject of this 

final rule. The MSAT2 rule allows early 

benzene credits to be generated in any 

annual averaging period prior to 2011 

(i.e., 2008, 2009, and 2010), as well as 

for the partial year period June 1– 

December 31, 2007. Early credits are 

generated on a refinery basis. In order to 

generate early credits, a refinery must 

meet several requirements: 

(1) Establish a benzene baseline based 

on the average benzene level of the 

gasoline produced at the refinery during 

the two-year period 2004–05. (See 

§ 80.1285.) 

(2) Achieve an annual average 

benzene level at least 10% lower than 

its baseline level. (See § 80.1275(a).) 

(3) Make operational changes or 

improvements in benzene control 

technology that will result in real 

benzene reductions. (See § 80.1275(d).) 

Any refining or operational changes 

may be utilized to comply with the 

average benzene content requirement. 

However, in order to generate early 

credits, the rule specifies four types of 

operational changes and benzene 

control technology improvements that 

would allow a refinery to qualify if it 

implemented the changes/ 

improvements after 2005 (and if it also 

met the other related requirements). 

§ 80.1275(d)(1). These operational 

changes and technology improvements 

are: 

(1) Treating the heavy straight run 

naphtha entering the reformer using 

light naphtha splitting and/or 

isomerization. 

(2) Treating the reformate stream 

exiting the reformer using benzene 

extraction or benzene saturation. 

(3) Directing additional refinery 

streams to the reformer for treatment as 

described in (1) and (2) above. 

(4) Directing reformate streams to 

other refineries with treatment 

capabilities as described in (2) above. 

A refinery needs to implement at least 

one of these listed changes/ 

improvements in order to generate early 

credits. 

This list includes all the strategies we 

thought would reduce fuel benzene (and 

thus benzene emissions) and be costeffective. The provision was intended to 

preclude refineries from generating 

early credits solely by benzene 

reductions achieved through ethanol 

blending. 

The final rule does not provide a way 

for EPA to consider alternative means of 

reducing fuel benzene and generating 

early credits, no matter how effective 

the alternative. Soon after the rule was 

finalized, it was brought to our attention 

that at least one refinery had plans to 

install benzene alkylation technology 

(also known as reformate alkylation). 

Benzene alkylation involves converting 

benzene into other aromatic compounds 

by the addition of alkyl groups to the 

benzene ring. Xylene, toluene and 

cumene are typical products formed by 

benzene alkylation. Benzene alkylation 

is not one of the four operational or 

technological changes enumerated in 

the final rule. Although EPA regarded 

benzene alkylation as a legitimate 

benzene reduction technology, and one 

which can be used to comply with the 

standard, we did not include it in the 

list of technologies for generation of 

early credits merely because we did not 

expect refiners to use it. (See the 

Regulatory Impact Analysis (EPA420– 

R–07–002, February 2007), Chapter 6, 

page 36.) 

We therefore considered a request to 

include benzene alkylation on the list of 


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61360 Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations 

1Based on mg/mi benzene emissions per volume 

fraction of the fuel component (benzene, aromatics, 

other) in gasoline. 

2Though this effect can be seen through Complex 

Model runs (which is based on 1990 vehicle 

technology), in the 2007 rulemaking, we found that 

tailpipe benzene emissions from Tier 2 vehicles 

have a similar response, in that significantly greater 

reductions in fuel aromatics levels are needed to get 

the same benzene reduction emissions impact that 

results from the MSAT2 benzene standard. See 

Control of Hazardous Air Pollutants from Mobile 

Sources, Regulatory Impact Analysis, Chapter 6, 

‘‘Feasibility of the Benzene Control Program,’’ 

February 2007. 

3 Data collected from a recent test program 

(described in Chapter 6.11 of the Regulatory Impact 

Analysis of the 2007 MSAT rule) suggest that a 

typical Tier 2 vehicle emits approximately 3.10 mg/ 

mi of benzene when burning gasoline with 1 vol% 

benzene and 30 vol% aromatics. Simulations done 

using the Complex Model for gasoline compliance 

(described in 40 CFR 80.45) suggest that 

approximately 25 wt% of exhaust benzene emission 

is due to benzene in the fuel (typically about 1 

vol%), about 30 wt% of exhaust benzene emission 

is due to aromatics in the fuel (typically about 30 

vol%), and the remaining 45 wt% of exhaust 

benzene emission is from the rest of the fuel (i.e., 

non-aromatic compounds). Given this information, 

and making the assumption that alkylation would 

be used to convert 0.4 vol% of benzene to 0.4 vol% 

aromatics (to take pool benzene from 1.0 vol% to 

0.60 vol%, slightly overcomplying with the new 

standard), we can estimate that a vehicle’s tailpipe 

benzene emissions would be reduced from 3.10 mg/ 

mi to 2.80 mg/mi if alkylation were used to reduce 

fuel benzene, compared to 2.79 mg/mi if another 

method of benzene reduction were used that did 

not create additional aromatics. This difference is 

less than 1%, and is relatively insensitive to the 

original emission level of the vehicle or the amount 

of fuel benzene reduction occurring. The difference 

is even smaller if one includes evaporative benzene 

emission, which is reduced by an identical amount 

for any method of benzene reduction. 

early credit-generating technologies to 

have merit, and on March 12, 2008, we 

published a direct final rulemaking and 

a parallel proposal that would have 

revised the February 26, 2007 MSAT2 

requirement regarding the benzene 

control technologies that qualify a 

refiner to generate early benzene credits 

to allow benzene alkylation in addition 

to the four operational or technological 

changes allowed by the MSAT2 rule. 

The direct final rule would have also 

allowed a refiner to submit a request to 

EPA to approve other benzene-reducing 

operational changes or technologies for 

the purpose of generating early credits. 

We stated that if we received adverse 

comment by April 11, 2008, the direct 

final rule would not take effect and we 

would publish a timely withdrawal in 

the Federal Register. Commenters did 

in fact submit significant adverse 

comment and we accordingly published 

a withdrawal of the direct final rule on 

May 9, 2008. (See 73 FR 26325.) We 

stated in the direct final rule and the 

parallel proposed rule that we would 

address comments in any subsequent 

final action, which would be based on 

the parallel proposed rule, without a 

second comment period on the action. 

Today’s action is based on the parallel 

proposed rule, and finalizes that 

proposal, so that refiners using benzene 

alkylation may generate early credits, 

and refiners can make site-specific 

demonstrations to EPA which may 

result in other technologies being 

eligible to generate early credits. 

II. Response to Comments 

We received comments from the 

Northeast States for Coordinated Air 

Use Management (NESCAUM) and the 

New York State Department of 

Environmental Conservation (NYDEC). 

The commenters expressed several 

concerns with the rule. First, they were 

concerned that the rule continued the 

2007 rule’s focus on gasoline benzene 

content rather than benzene vehicle 

emissions. Second, commenters 

expressed the related concern that 

although benzene alkylation reduces 

gasoline benzene levels, it may not 

reduce benzene vehicle emissions. One 

commenter suggested that early credits 

be discounted to account for vehicular 

benzene emissions attributable to reformed benzene. Commenters also 

expressed concern about increased 

aromatics emissions from vehicles. 

Finally, commenters opposed allowing 

other future refinery operational 

changes to be approved after petition to 

and review by EPA for the purpose of 

generating early credits. 

As will be discussed below, benzene 

alkylation meaningfully reduces 

gasoline benzene levels and thus 

directly reduces benzene emissions. For 

this reason, we believe that allowing 

refiners to qualify to generate early 

credits through the use of benzene 

alkylation is consistent with the intent 

of technology requirement associated 

with the early credit provisions. Use of 

benzene alkylation will not have the 

adverse effects of concern to the 

commenters: benzene vehicle emissions 

will be reduced, and there will not be 

appreciable increases in aromatics 

emissions from vehicles. 

Fuel aromatics and fuel benzene 

levels both affect vehicle benzene 

emissions, but not to anywhere near the 

same degree. Fuel benzene has more 

than a 20-fold 1 greater impact on 

benzene emissions from vehicles than 

other fuel components, including fuel 

aromatics levels. In the March 29, 2006 

proposed rule, we discussed how nonbenzene aromatics account for about 

30% by volume of gasoline and 

contribute about 30% of benzene 

emissions while benzene constitutes 

only about one volume percent of the 

fuel but is responsible for about 25% of 

the benzene emissions. (The remaining 

benzene emissions are formed from 

other (non-aromatic) compounds. See 71 

FR 15864). Based on evaluations using 

the Complex Model, we concluded there 

that a 20% reduction in aromatics 

would be needed to achieve the same 

level of benzene emissions reductions as 

the 0.62 vol% standard. (See 71 FR 

15864.) 2 Thus, in the 2007 final rule, we 

concluded that fuel benzene control is 

the most effective means of reducing 

benzene and overall MSAT emissions 

because it offers measurable and certain 

benzene reductions that are not affected 

by ‘‘changes in fuel composition or 

vehicle technology.’’ (See 72 FR 8477.) 

Reducing fuel benzene through 

alkylation or any other benzene 

reduction technology results in greater 

than 95% reduction in benzene exhaust 

emissions compared to the benzene 

emissions caused by the fuel benzene 

removed. We estimate that there is less 

than a 1% difference among benzene 

reduction technologies in their 

effectiveness at reducing benzene 

emissions.3 Because benzene emissions 

reductions are significant regardless of 

the fuel benzene reduction technology, 

there is no reason to discourage the use 

of one technology over another. For the 

same reason, we do not agree with the 

suggestion to discount early credits 

generated by use of benzene alkylation 

to account for vehicular emissions. 

The commenters’ concern about 

increases in vehicle non-benzene 

aromatic emissions is also somewhat 

misplaced. Again, given the small 

amount of benzene in gasoline (1 vol%) 

relative to total aromatics (20–40 vol%), 

the additional contribution of aromatics 

attributable to alkylating the benzene is 

minimal, as would be any increase in 

aromatic emissions. In addition, as we 

discussed in the 2007 rule, fuel 

aromatics levels are expected to 

decrease because of increased ethanol 

use, so aromatics emission levels should 

be dropping in any event. 

Thus, based on the analyses in the 

2007 rule of the impacts of fuel benzene 

and aromatics reductions on emissions, 

the slight increase in fuel aromatics 

content that could result from refineries 

using benzene alkylation for the 

purposes of generating early credits 

under this rule should reduce benzene 

emissions that would otherwise not be 

reduced at this time. No deleterious 

vehicle emissions impacts are expected. 

It thus is appropriate for refiners using 

benzene alkylation to reduce fuel 

benzene levels to be eligible to generate 

early credits. 

With respect to the other portion of 

today’s rule, we continue to believe that 

allowing a refiner to petition us to use 


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Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations 61361 

an operating change not currently listed 

in order to qualify to generate early 

benzene credits is appropriate. A refiner 

would have to show in the petition that 

the operating change would reduce fuel 

benzene levels which, as just discussed, 

is the best means of reducing benzene 

vehicle emissions. The MSAT2 program 

encourages early fuel benzene 

reductions in order to get early benzene 

emissions reductions. This action is not 

about permitting a refinery to 

implement a new technology or make an 

operating change—those actions can 

happen at any time within or outside of 

the early credit generation window, 

regardless of the refinery’s intent vis-avis generating early credits. Today’s 

action requires the petitioner to show 

that the change they intend to make 

reduces fuel benzene levels which 

directly and significantly reduces 

benzene vehicle emissions more than 

any other fuel compositional change. 

The petition process has the added 

value of being more timely than a 

rulemaking, which is important since 

early credits can only be generated 

through 2010, and refiners must apply 

to generate early credits before the start 

of the annual averaging period in which 

they first want to generate early credits. 

III. This Action 

We published a Questions and 

Answers document related to the 

MSAT2 program on August 16, 2007. 

(http://epa.gov/otaq/regs/toxics/

420f07053.pdf) In that document, we 

specifically addressed benzene 

alkylation and indicated that benzene 

alkylation meets the intent of the 

technology requirement for early 

credits. As discussed in the preamble of 

the final rule, early credits are generated 

based on innovations in gasoline 

benzene control technology that result 

in real benzene reductions prior to the 

start of the program in 2011. (See 72 FR 

8486.) The use of benzene alkylation 

directly results in lower gasoline 

benzene levels. 

Today’s action revises § 80.1275(d)(1) 

to include benzene alkylation in the list 

of acceptable reduction operational and 

technological strategies. We have also 

included a general provision that allows 

a refiner to petition EPA to use an 

operational or technological change that 

is not listed in the regulation for the 

purpose of generating early credits. The 

refiner must demonstrate that the 

benzene control technology 

improvement or operational change 

results in a net reduction in the 

refinery’s average gasoline benzene 

level, exclusive of benzene reductions 

due simply to blending practices. The 

petition must be submitted to EPA prior 

to the start of the first averaging period 

in which the refinery plans to generate 

early credits. EPA expects it would act 

on such a petition before the end of that 

averaging period. The refiner must also 

provide additional information 

requested by EPA. 

The other requirements for generating 

early credits are unchanged. These 

include submitting a benzene baseline, 

reducing the refinery’s baseline benzene 

level by at least 10% in a given 

averaging period, and not moving 

gasoline or blendstock streams between 

refineries for the purpose of generating 

early credits. (See 72 FR 8486.) 

IV. Environmental and Economic 

Impact 

This action allows companies that 

have alternative means or strategies for 

reducing gasoline benzene to request 

EPA approval to use them for the 

purpose of generating early benzene 

credits. Average gasoline benzene levels 

from such refiners will decrease faster 

and earlier than if they had not 

generated early credits leading to lower 

benzene emissions than would have 

been achieved otherwise. Such credits 

will also help provide for a robust credit 

pool when the program starts in 2011. 

Vehicle benzene emissions will be 

reduced and there will not be significant 

increases in vehicle emissions of other 

aromatics. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action revises the February 26, 

2007 mobile source air toxics rule’s 

requirements that specify the benzene 

control technologies that qualify a 

refiner to generate early benzene credits. 

It allows another specific benzene 

control technology, benzene alkylation, 

to be used for the purpose of generating 

early credits, and allows a refiner to 

submit a request to EPA to approve 

other benzene-reducing operational 

changes or technologies for the purpose 

of generating early credits. 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 the Executive Order. 

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 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 

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 this action on small entities, small 

entity is defined as: (1) A petroleum 

refining company with fewer than 1,500 

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 final rule, I certify 

that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

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– 


rwilkins on PROD1PC63 with NOTICES
61362 Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations 

1538 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 does not 

significantly change the original rule. 

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 only applies to parties that 

produce 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 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 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). 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. 

This rule amends existing regulatory 

provisions applicable only to producers 

of gasoline and will impose no direct 

costs on tribal governments. Thus, 

Executive Order 13175 does not apply 

to this action. 

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 Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it is not an 

economically significant regulatory 

action as defined in Executive Order 

12866. 

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 18355 (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, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 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. This rule provides 

additional means for refiners to qualify 

to generate early credits by 

implementing a benzene reducing 

technology or operational mode. This in 

turn will reduce vehicle benzene 

emissions. 

K. 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 December 15, 

2008. 

VI. Statutory Provisions and Legal 

Authority 

The statutory authority for the fuels 

controls in today’s final rule can be 

found in sections 202(l) 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 


rwilkins on PROD1PC63 with NOTICES
Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations 61363 

recordkeeping requirements, comes 

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

CAA. 

List of Subjects in 40 CFR Part 80 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Confidential 

business information, Fuel additives, 

Gasoline, Imports, Labeling, Motor 

vehicle fuel, Motor vehicle pollution, 

Penalties, Reporting and recordkeeping 

requirements. 

Dated: October 9, 2008. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons set forth in the 

preamble, 40 CFR part 80 is amended as 

set forth below: 

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 80.1275 is amended as 

follows: 

■ a. By adding paragraph (d)(1)(v). 

■ b. By redesignating paragraph (d)(2) as 

paragraph (d)(3). 

■ c. By adding paragraph (d)(2). 

§ 80.1275 How are early benzene credits 

generated? 

* * * * * 

(d) * * * 

(1) * * * 

(v) Providing for benzene alkylation. 

(2)(i) A refiner may petition EPA to 

approve, for purposes of paragraph 

(d)(1) of this section, the use of 

operational changes and/or 

improvements in benzene control 

technology that are not listed in 

paragraph (d)(1) of this section to reduce 

gasoline benzene levels at a refinery. 

(ii) The petition specified in 

paragraph (d)(2)(i) of this section must 

be sent to: U.S. EPA, NVFEL–ASD, Attn: 

MSAT2 Early Credit Benzene Reduction 

Technology, 2000 Traverwood Dr., Ann 

Arbor, MI 48105. 

(iii) The petition specified in 

paragraph (d)(2)(i) of this section must 

show how the benzene control 

technology improvement or operational 

change results in a net reduction in the 

refinery’s average gasoline benzene 

level, exclusive of benzene reductions 

due simply to blending practices. 

(iv) The petition specified in 

paragraph (d)(2)(i) of this section must 

be submitted to EPA prior to the start of 

the first averaging period in which the 

refinery plans to generate early credits. 

(v) The refiner must provide 

additional information as requested by 

EPA. 

* * * * * 

[FR Doc. E8–24591 Filed 10–15–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

42 CFR Part 73 

RIN 0920–AA09 

Possession, Use, and Transfer of 

Select Agents and Toxins 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: Final rule. 

SUMMARY: This document completes the 

biennial review and republication of the 

lists of biological agents and toxins 

regulated by the U.S. Department of 

Health and Human Services (HHS), as 

well as those biological agents and 

toxins regulated by both HHS and the 

U.S. Department of Agriculture (USDA). 

Because USDA has chosen to no longer 

regulate ten biological agents and toxins 

which HHS still believes have the 

potential to pose a severe threat to 

public health and safety, we have 

moved those ten biological agents and 

toxins from the overlap select agents 

and toxins section to the HHS select 

agents and toxins section of the select 

agent regulations. 

In a companion document published 

in this issue of the Federal Register, the 

USDA has established corresponding 

final rules regarding the select agents 

and toxins regulated only by the USDA, 

as well as those overlap select agents 

and toxins regulated by both agencies. 

DATES: The final rule is effective 

November 17, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Robbin Weyant, Director, Division of 

Select Agents and Toxins, Centers for 

Disease Control and Prevention, 1600 

Clifton Rd., MS A–46, Atlanta, GA 

30333. Telephone: (404) 718–2000. 

SUPPLEMENTARY INFORMATION: The Public 

Health Security and Bioterrorism 

Preparedness and Response Act of 2002, 

Subtitle A of Public Law 107–188 (42 

U.S.C. 262a) (the Bioterrorism 

Preparedness Act), requires the HHS 

Secretary to establish by regulation a list 

of each biological agent and each toxin 

that has the potential to pose a severe 

threat to public health and safety. In 

determining whether to include an 

agent or toxin on the list, the HHS 

Secretary considers the effect on human 

health of exposure to an agent or toxin; 

the degree of contagiousness of the 

agent and the methods by which the 

agent or toxin is transferred to humans; 

the availability and effectiveness of 

pharmacotherapies and immunizations 

to treat and prevent illnesses resulting 

from an agent or toxin; the potential for 

an agent or toxin to be used as a 

biological weapon; and the needs of 

children and other vulnerable 

populations. The Bioterrorism 

Preparedness Act requires that the HHS 

Secretary review and republish the list 

of select agents and toxins on at least a 

biennial basis. 

The HHS Secretary promulgated the 

current select agents and toxins lists in 

a final rule, published on March 18, 

2005, and made effective on April 18, 

2005. The select agents and toxins lists 

found in Part 73 are found in two 

sections. The biological agents and 

toxins listed in section 73.3 (HHS select 

agents and toxins) are those biological 

agents and toxins regulated only by 

HHS. The biological agents and toxins 

listed in section 73.4 (Overlap select 

agents and toxins) are those biological 

agents and toxins regulated both by 

HHS and USDA under the provisions of 

the Agricultural Bioterrorism Protection 

Act of 2002. 

The Agricultural Bioterrorism 

Protection Act of 2002, Subtitle B of 

Public Law 107–188 (7 U.S.C. 8401) (the 

Agricultural Bioterrorism Protection 

Act), requires the USDA Secretary to 

establish by regulation a list of each 

biological agent and each toxin that the 

Secretary determines has the potential 

to pose a severe threat to animal or plant 

health or animal or plant products. In 

determining whether to include an 

agent or toxin on the list, the USDA 

Secretary considers the effect of 

exposure to the agent or toxin on animal 

or plant health, and on the production 

and marketability of animal or plant 

products; the pathogenicity of the agent 

or the toxicity of the toxin and the 

methods by which the agent or toxin is 

transferred to animals and plants; the 

availability and effectiveness of 

pharmacotherapies and prophylaxis to 

treat and prevent any illness caused by 

the agent or toxin; and the potential of 

an agent or toxin for use as a biological 

weapon. The USDA Secretary is also 

required to conduct a biennial review of 

the USDA select agents and toxins list. 

To assist with the biennial review, 

HHS reviewed recommendations 

provided by subject matter experts and 

the Intragovernmental Select Agents and 


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