Petition by American Samoa for Exemption from Anti-Dumping
Requirements for Conventional Gasoline
Related Material
[Federal Register: November 29, 2000 (Volume 65, Number 230)]
[Rules and Regulations]
[Page 71067-71073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no00-7]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-6908-8]
RIN 2060-AI60
Petition by American Samoa for Exemption from Anti-Dumping
Requirements for Conventional Gasoline
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (``EPA'' or ``the
Agency'') is granting a petition by the Territory of American Samoa for
exemption from the anti-dumping requirements for gasoline sold in the
United States after January 1, 1995. This action is being taken because
compliance with the anti-dumping requirements is not feasible or is
unreasonable due to American Samoa's unique geographic location and
economic factors. If the gasoline anti-dumping exemption were not
granted, American Samoa would be required to import gasoline from a
supplier meeting the anti-dumping requirements adding a considerable
expense to gasoline purchased by the American Samoan consumer. American
Samoa is in full attainment with the National Ambient Air Quality
Standard (``NAAQS'') for ozone. This action is not expected to cause
harmful effects to the citizens of American Samoa.
EPA is concurrently proposing in the Proposed Rules section of
today's Federal Register approval of American Samoa's petition for
reasons discussed in this document. The EPA will not institute a second
comment period on this document. Any parties interested in commenting
on this action should do so at this time. All correspondence should be
directed to the addresses shown below.
DATES: This action will be effective on January 29, 2001, unless the
Agency receives adverse or critical comments or a request for a public
hearing by December 29, 2000. If the Agency receives adverse or
critical comments, EPA will publish in the Federal Register timely
notice withdrawing this action and the comments will be addressed in a
subsequent final rule. If a request for a public hearing is received,
this will be addressed in a subsequent Federal Register document.
ADDRESSES: Any persons wishing to submit comments should submit them
(in duplicate, if possible) to the two dockets listed below, with a
copy forwarded to Marilyn Winstead McCall, U.S. Environmental
Protection Agency, Transportation and Regional Programs Division, 1200
Pennsylvania Avenue, NW., (Mail Code: 6406J), Washington, DC 20460.
Public Docket: Materials relevant to this petition are available
for inspection in public docket A-99-17 at the Air Docket Office of the
EPA, Room M-1500, 401 M Street, SW., Washington, D.C. 20460, (202) 260-
7548, between the hours of 8 a.m. to 5:30 p.m., Monday through Friday.
A duplicate public docket A-91-40 has been established at U.S. EPA
Region IX, 75 Hawthorne Street, (Mail Code: A-2-1), 17th Floor, San
Francisco, CA 94105, (415) 744-1225, and is available between the hours
of 8:30 a.m. to noon, and from 1 p.m. to 5 p.m., Monday through Friday.
As provided in 40 CFR part 2, a reasonable fee may be charged for
copying services.
FOR FURTHER INFORMATION CONTACT: Marilyn Winstead McCall at (202) 564-
9029, facsimile: (202) 565-2085, e-mail address:
McCall.mwinstead@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially affected by this rule are those involved with
the production, distribution, importation, and sale of conventional
gasoline used in the Territory of American Samoa. Regulated categories
and entities include:
[[Page 71068]]
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Category:......................... Examples of regulated entities:
Industry.......................... Gasoline refiners and importers,
gasoline terminals, gasoline
truckers, blenders, retailers and
wholesale purchaser-consumers.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
rule. This table lists the types of entities we are now aware could
potentially be affected by this rule. Other types of entities not
listed could also be affected by this rule. To determine whether you
are affected by this rule, you should carefully examine the
applicability requirements in Secs. 80.90 and 80.125, Subparts E and F
of title 40 of the Code of Federal Regulations (``CFR''). If you have
any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
I. Background
A. Why Is EPA Publishing This Rule Without Prior Proposal?
EPA views this rule as a noncontroversial amendment to the gasoline
anti-dumping regulations and anticipates no adverse comment. American
Samoa is in attainment with the air quality standards. However, in the
``Proposed Rules'' section of today's Federal Register, we are
publishing a separate document that will serve as the proposal to
approve the direct final rule if adverse comments are filed. If adverse
comments are filed, please see EFFECTIVE DATE section above.
B. What Did American Samoa Request in Its Petition?
On March 9, 1999, the Honorable Tauese P.F. Sunia, Governor of the
Territory of American Samoa, petitioned the Agency for an exemption
from the requirements of regulations in 40 CFR Part 80 that require
conventional gasoline meet certain anti-dumping specifications.
Specifically, the petition requested ``* * * exemption from the
regulations of 40 CFR Part 80 Subparts E and F for the Anti-Dumping of
Fuel.'' \1\
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\1\ Letter from Governor Tauese P.F. Sunia, American Samoa, to
Felicia Marcus, Regional Administrator, U.S. Environmental
Protection Agency, Region 9, dated March 9, 1999.
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C. What Are the Gasoline Anti-Dumping Requirements and How Do They
Apply to American Samoa?
In 1993, EPA promulgated regulations on the production and sale of
reformulated gasoline and gasoline that is not required to be
reformulated, or ``conventional'' gasoline. For conventional gasoline,
the gasoline produced by a refiner or importer must not be more
polluting or cause more motor vehicle emissions than gasoline produced
by that refiner or importer in 1990. In the production of reformulated
gasoline (a gasoline that has been further processed and refined to
reduce components that contribute most to pollution), a refiner cannot
``dump'' into its conventional gasoline pool those polluting components
removed from the refiner's reformulated gasoline. This is commonly
called the ``anti-dumping'' gasoline program, and these requirements
apply to all gasoline produced, imported, and consumed in the United
States and its territories.
D. What Are the Statutory Provisions Governing This Petition?
Section 211(k) of the Clean Air Act (``CAA'' or the ``Act'')
requires that gasoline be reformulated to reduce motor vehicle
emissions of toxic and tropospheric ozone-forming compounds, and that
this reformulated gasoline be sold in the largest metropolitan areas
with the most severe summertime ozone levels and in other ozone
nonattainment areas that opt into the program. Section 211(k)(8)
prohibits conventional gasoline sold in the rest of the country from
becoming any more polluting than it was in 1990, thereby ensuring that
refiners do not dump fuel components into conventional gasoline causing
environmentally harmful emissions restricted in reformulated gasoline.
Regulations were promulgated December 15, 1993, and are codified in 40
CFR Part 80.
Section 325 of the Clean Air Act provides that, upon petition by
the Governor of Guam, American Samoa, the Virgin Islands, or the
Commonwealth of the Northern Mariana Islands, the Administrator may
exempt any person or source in such territory from various requirements
of the Act. It states that ``* * * such exemption may be granted if the
Administrator finds that compliance with such requirements is not
feasible or is unreasonable due to unique, geographical,
meteorological, or economic factors of such territory, or such other
local factors as the Administrator deems significant.''
II. Discussion of American Samoa's Petition
A. Are There Unique Geographic, Demographic and Climatic Factors in
American Samoa That Affect Their Petition?
American Samoa is a group of five volcanic islands and two coral
atolls, located in Polynesia, approximately 2,300 miles southwest of
Hawaii and 1,600 miles northeast of New Zealand. American Samoa
contains approximately 76 square miles, about two-thirds of which are
mountainous with steep slopes that make it virtually inaccessible. The
largest island is Tutuila which is approximately 53 square miles. The
small island of Aunu'u lies near the east end of Tutuila. The other
inhabited islands are Tau, Ofu, Olesaga and Swain's Island. Rose Atoll
is uninhabited. The population was estimated to be 52,400 in 1993--over
96% of which live on the island of Tutuila.
American Samoa has a tropical, maritime climate, with abundant
rainfall, winds, and warm, humid days and nights. The mean annual
temperature is about 80 degrees. Rainfall is about 125 inches a year
near the airport, but varies greatly over small distances because of
the mountainous topography. Pago Pago (the major city) which is less
than 4 miles north of the airport and at the head of a hill-encircled
harbor is open to the prevailing winds and receives nearly 200 inches
of rainfall a year. The crest of the mountain range receives over 250
inches each year. American Samoa's petition states that due to the
prevailing easterly trade winds throughout the year, its tropical
climate, remoteness, and low population, the air quality in the
territory is generally pristine. It is in attainment with the air
quality standards including the National Ambient Air Quality
(``NAAQS'') standard for ozone.
B. Are There Economic Factors in American Samoa That Are Unique and
That Affect Their Petition?
Because of its remoteness from the mainland, American Samoa has
imported its fuel from refineries in Hawaii and the Far East. American
Samoa's March 9, 1999 petition stated that at the time the petition was
filed, almost all of their motor vehicle
[[Page 71069]]
gasoline has been supplied by the Tesoro Corporation refinery in
Hawaii. This gasoline complied with the gasoline anti-dumping
regulations for conventional gasoline. Motor vehicle gasoline
represents only about 11 percent of the fuel market in the territory;
diesel fuel represents 72 percent; and jet fuel represents about 17
percent. ExxonMobil (``Mobil'') supplies the islands with about 65% of
the diesel fuel from its refineries in Australia and Singapore.
C. Other Significant Local Factors
American Samoa's petition states that in 1990, American Samoa's
annual per capita income was $3,039. The U.S. median income is about
$21,120.\2\ Moreover, due to relatively high transportation costs,
retail gasoline prices are already significantly higher in American
Samoa than in the continental U.S. In August 2000, the U.S. average
price of regular unleaded gasoline at the retail level was $1.48 per
gallon.\3\ In American Samoa, the average price is 20 cents higher than
that on the mainland. Therefore, in August 2000, it was around $1.68
per gallon.
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\2\ U. S. Bureau of Census (Phone conversation December 1999
with EPA employee).
\3\ ``The Oil Daily,'' Vol. 50, No. 167, August 30, 2000, page
7.
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There are 5,126 registered motor vehicles in American Samoa. The
motor gasoline market is small compared to the diesel market. The
American Samoan government owns its own fuel terminal and fuel dock and
selects a terminal operator to manage the facilities. A U.S. District
Court (for California) determined in 1973 that one oil marketer had
violated the Sherman Act by attempting to monopolize the distribution
and sale of petroleum products in American Samoa. Subsequently, the
Court issued a ``Court Plan,'' the goal of which was to assure an equal
competitive position to all suppliers of petroleum products in American
Samoa, including the opportunity to use the tank farm for storage on a
shared basis. The American Samoa government's aim was to assure that
American Samoans receive the benefits of competition by having a choice
of products at the lowest prices.
Tesoro has supplied American Samoa with complying gasoline from
1995 through 1999. During this time, Tesoro also operated the fuel
terminal in its capacity as terminal operator.
D. Enforcement Deferred (``Interim'') Period
Since the petition was filed, EPA learned in November 1999, that
Tesoro was withdrawing from the American Samoan gasoline market
effective January 1, 2000.\4\ This company has been supplying American
Samoa with about 80% of its gasoline, whereas Mobil has been supplying
about 20% , albeit at a higher price (due to the need to make special
runs of compliant product from the company's Melbourne, Australia
refinery). However, this company does not always supply fuel from the
Australian refinery--sometimes their cargoes originate from a Singapore
refinery which does not have the capability of making complying
gasoline.
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\4\ Letter from Jack Kachmarik, Chief Petroleum Officer,
American Samoa Government to EPA, dated November 12, 1999.
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Negotiations with BP South West Pacific Limited (``BP'') have
concluded in BP's taking over the gasoline supply commitments formerly
held by Tesoro, beginning January 1, 2000. They estimate that ``huge
costs'' will result if they are required to comply with the anti-
dumping requirements, with as much as 14 to 18 cents more per gallon
being charged the American Samoan consumer. Since a gallon of gasoline
on the islands is already 20 cents more per gallon than on the U.S.
mainland, the cost to the American Samoan citizen for a gallon of
complying gasoline could be as much as 38 cents more per gallon.
Consequently, American Samoa petitioned EPA on December 30, 1999, for
``* * * enforcement discretion by declining to enforce the gasoline
anti-dumping regulations pending the effectiveness of the anticipated
rule.'' \5\ Subsequently, EPA granted enforcement discretion for a one
year period--from January 1, 2000 to January 1, 2001.\6\
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\5\ Letter from Tauese P.F. Sunia, Governor of the Territory of
American Samoa, to Mr. Robert W. Perciasepe, dated December 30,
1999.
\6\ Letter from Steven A. Herman, Assistant Administrator, EPA
Office of Enforcement and Compliance Assurance, to Governor Tauese
P.F. Sunia, dated January 14, 2000.
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The end result of the November 1999 notification of Tesoro's
withdrawing from the American Samoan market is that American Samoa is
left with two importers (Mobil and BP) that are willing to supply
American Samoa with gasoline. The cost of the gasoline supplied will be
significantly lower if they are not required to comply with the
gasoline anti-dumping regulations.
III. Clarification of the Gasoline Anti-Dumping Requirements
(Subparts E and F)
A. How Is Compliance With the Gasoline Anti-Dumping Requirements
Measured?
Compliance is measured by comparing emissions of a refiner's or
importer's conventional gasoline against those of a baseline gasoline--
either a baseline based on the quality of the refiner's or importer's
1990 gasoline or on a statutory baseline specified by the Clean Air
Act. EPA's regulations at 40 CFR part 80, subparts E and F require a
refiner or importer that establishes a baseline to hire an independent
auditor to verify its baseline parameters. They also require that each
refiner or importer maintain records and report to EPA certain
information pertaining to production of conventional gasoline,
beginning in February 1996, and every subsequent year.\7\
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\7\ See 40 CFR part 80, Secs. 80.105 and 80.125.
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B. Which of the Gasoline Parameters Are Required To Meet the Baseline
Under the Anti-Dumping Regulations?
Section 211(k)(8) requires that average per gallon emissions of
volatile organic compounds (VOC), carbon monoxide (CO), nitrogen oxides
( NOX) and toxics due to conventional gasoline produced by a
refiner or importer not increase over 1990 levels for each refiner or
importer. Since VOC and CO emission increases are expected to be
controlled through other regulatory programs, the anti-dumping
provisions are limited to regulating emissions of toxics and
NOX emissions.
Pursuant to section 211(k)(8) of the Act, EPA adopted the
regulations in subpart E to address exhaust benzene, total exhaust
toxics and NOX emissions from conventional gasoline use.
Under a simple emissions model, applicable from January 1, 1995 to
January 1, 1998, a limit is set for sulfur, olefins and T90 as well as
exhaust benzene. A more complex emissions model was required January 1,
1998, with limits set on exhaust toxics and NOX. All the
limits are set as annual averages.
IV. Rationale for Exemption
A. Unique Geographic and Economic Factors Relating to an Exemption in
American Samoa.
Due to the distance from the U.S. mainland, American Samoa has been
supplied with most of its gasoline by Tesoro Corporation's Hawaii
refinery. There is another company operating a refinery in Hawaii;
however, since 1991, only the Tesoro refinery has been
[[Page 71070]]
interested in servicing the American Samoan gasoline market. Prior to
1991, both Shell Oil and Mobil Oil supplied gasoline to American Samoa.
These companies have since withdrawn as full time suppliers from the
American Samoan market. Therefore, since 1995--the year the gasoline
anti-dumping regulations went into effect--American Samoa has been
mainly supplied with gasoline complying with the anti-dumping
regulations from the Tesoro Hawaiian refinery.
Tesoro was also selected to operate the petroleum terminals on the
islands in a 1998 request for proposals issued by the American Samoan
government. American Samoa's petition states that a virtual monopoly
situation exists by this one company by their controlling the operation
of the terminals as well as almost all of the gasoline supply. The
petition states that this is one reason why other companies have been
discouraged from entering the gasoline market in American Samoa.
The Court Plan mentioned previously was modified in 1994 retaining
the Court's jurisdiction over the terminal facilities and preserving
the ability of potential new suppliers to use the facilities on a
shared-cost basis. The supporting material presented to the court
included a permit and agreement between American Samoa and the terminal
operator which contained a modified maximum allowable price formula as
a safeguard against excessive monopoly pricing by the terminal
operator. American Samoa's petition states that because of this dual
responsibility by Tesoro and the fact that only Tesoro was capable of
supplying complying gasoline on a full time basis, a monopoly situation
has existed and, therefore, competition was discouraged.
Two other companies--Mobil and BP--entered the fuel market in 1998,
and mainly import diesel fuel to the islands. They have not been able
to import gasoline that meets the anti-dumping regulations (except for
a small amount of ``special order'' gasoline imported from Australia by
Mobil that is offered at a much higher price than that offered by
Tesoro). Mobil and BP operate refineries in Australia and Singapore. As
previously stated, Mobil operates a refinery in Melbourne, Australia
that makes some gasoline which complies with the anti-dumping
regulations. However, because this gasoline is ``specially ordered,''
it costs the American Samoan consumer about 10 cents more per gallon
above the normal prices, and Mobil cannot assure a continuous supply.
Also, Mobil does not always supply the American Samoan fuel market out
of their Melbourne refinery. Some cargoes (containing mostly diesel
fuel) come from their refineries in Singapore which do not make the
``special-order'' gasoline.
B. Exemption Basis
Mobil and BP have indicated an interest in supplying the American
Samoa market by agreeing to take over the marketing commitments
formerly held by Tesoro after that company withdrew in January 2000.
\8\ Both of these companies supply gasoline to Fiji, Western Samoa and
other Pacific Islands. Transportation costs dictate that these Pacific
Islands' markets be supplied by Far Eastern refineries. While EPA's
regulations do not apply to those Far Eastern refineries, they do apply
to any importer of gasoline into the U.S. and its territories. The
American Samoa gasoline market is a very small market--only
approximately 5,000,000 gallons of motor gasoline are imported per
year.
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\8\ See Letter from Jack Kachmarik, Chief Petroleum Officer,
American Samoa Government, to EPA, dated November 12, 1999.
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After the expiration of the interim period and if the exemption is
not granted, Mobil and BP would be required to supply American Samoa
with gasoline that does not exceed the statutory baseline emissions for
exhaust toxics and NOX--the two emissions controlled by the
anti-dumping program. The statutory baseline is a combination of summer
and winter components, including emissions calculated under the
appropriate seasonal version of the Complex Model, the tool used in
determining compliance with the reformulated gasoline and anti-dumping
regulations. \9\ Additionally, the anti-dumping regulations require
that the emissions of gasoline sold in areas not subject to EPA's
gasoline volatility requirements \10\ which include American Samoa and
other U.S. territories, be evaluated using only the winter version of
the Complex Model. As discussed in a recent rulemaking (see 64 FR
30904, June 9, 1999), it is somewhat more difficult to produce or
import gasoline which meets the statutory baseline requirements when
that gasoline must all be evaluated using the winter version of the
Complex Model, because the winter version predicts higher emissions
than the summer version, and, as stated, the statutory baseline is a
combination of the summer and winter components. In the referenced
rulemaking, under certain conditions, a refiner is allowed to evaluate
its gasoline using only the summer model (given American Samoa's
climate, it would be more appropriate to use the summer model if a
single seasonal model is being considered) and compare the results to
only the summer baseline. The quality of a few batches shipped to
American Samoa (by BP) in 2000 (February 8, 2000 to June 23, 2000,
which represents about 30 percent of the total gasoline volume imported
to the islands annually), showed that the gasoline, when evaluated with
either seasonal model and compared to the corresponding statutory
seasonal baseline, was close to complying. However, both Mobil and BP
have indicated that the gasoline sent to Samoa will be produced at a
number of foreign refineries and that such quality cannot be
guaranteed, especially considering transportation costs and the small
volumes of gasoline used in American Samoa. In this situation,
compliance with the statutory baseline (either the annual average
statutory baseline or either seasonal statutory baseline) can be even
more onerous because the quality (with regard to fuel properties like
benzene and sulfur content) of gasoline produced at Far Eastern
refineries can be quite different from that of gasoline produced by the
typical mainland U.S. refinery. For example, Singapore refineries
typically produce gasoline having lower concentrations of sulfur and
olefins and relatively higher concentrations of benzene and aromatics.
EPA understands that gasoline being imported from the Singapore
refineries would be similar in quality to that being imported into Guam
and the Northern Mariana Islands where exemptions from the gasoline
anti-dumping regulations apply. For a more detailed discussion of these
differences, please see notices of direct final decision exempting
gasoline from the anti-dumping requirements in Guam and the Northern
Mariana Islands. \11\
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\9\ See 40 CFR 80.101(f).
\10\ See 40 CFR 80.27.
\11\ See 61 FR 53854, October 16, 1996, and 62 FR 63855,
December 3, 1997, respectively.
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Because of these differences in fuel quality, and because of the
requirement that American Samoa gasoline be evaluated using the winter
version of the Complex Model, EPA believes the Far Eastern gasoline
that would be available to American Samoa cannot consistently satisfy
the anti-dumping requirements when compared to statutory baseline
gasoline. Additionally, EPA believes that consistent compliance with
either the winter or summer statutory baseline
[[Page 71071]]
(after evaluating the gasoline using the corresponding seasonal model)
cannot practically be guaranteed (i.e., without unacceptable economical
impacts to the American Samoa consumer and without environmental
benefit), and thus is not a reasonable alternative to exemption from
the anti-dumping requirements in this situation. If this exemption were
not granted, importers of gasoline to American Samoa would have to seek
out and transport gasoline with the qualities which would allow it to
comply with the statutory baseline annual average exhaust toxics and
NOX emissions. This would significantly increase the price
of gasoline in American Samoa because transportation costs for such a
small quantity of gasoline would be high. Gasoline in American Samoa is
already 20 cents per gallon higher than on the mainland, and BP and
Mobil state that price increases of 10 cents more per gallon could be
added to the already high price of gasoline in American Samoa if the
petition is not granted. Since Tesoro, whose refinery is located in
Hawaii, withdrew from the American Samoa market, there have been no
importers in the Pacific Rim that have indicated to EPA their
willingness to supply American Samoa with gasoline that complies with
the statutory baseline. Therefore as no optional sources of complying
gasoline have been forthcoming, American Samoa is reliant upon BP and
Mobil Far Eastern refineries to fill their gasoline supply. Both
companies state that if the exemption is granted the price of gasoline
could decrease by 5 to 10 cents per gallon. This decrease would be
partly due to increased competition and to these companies' abilities
to sell solely on the basis of lower Singapore prices, which alone,
would drop the price by 4 to 5 cents per gallon. EPA does not expect
that exempting gasoline imported to American Samoa from the anti-
dumping requirements will negatively affect air quality.
Final Action
EPA has decided to grant a petition by the Territory of American
Samoa and exempt the Territory of American Samoa from compliance with
the anti-dumping standards for conventional gasoline under section
211(k)(8). The Agency believes that compliance with the gasoline anti-
dumping requirements is unreasonable given the significantly increased
costs to consumers in American Samoa in achieving compliance. These
increased costs are directly attributable to American Samoa's location
and resulting inability of importers to comply with the anti-dumping
requirements without significantly greater costs than those expected
for importers in the U.S. mainland. Gasoline price increases of the
magnitude expected to result from compliance with the conventional
gasoline anti-dumping regulations at 40 CFR part 80, subparts E and F
could be especially burdensome for the many citizens of American Samoa.
In addition, despite its geographic remoteness from the mainland,
compliance with the anti-dumping provisions might require that American
Samoa import conventional gasoline from the U.S. mainland, greatly
increasing the cost of conventional gasoline for the American Samoans.
EPA finds that these economic factors are unique to the Territory of
American Samoa.
This exemption applies to all importers and suppliers of gasoline
in American Samoa. EPA will review and reopen this exemption in the
future if conditions change to warrant such an action.
VI. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, the Agency must determine whether this
regulatory action is ``significant'' and therefore subject to OMB
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866.
B. Paperwork Reduction Act
This action does not add any information collection requirements or
increase burden under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and therefore is not subject to these
requirements.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives that
achieve the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule imposes no enforceable duty or mandate on any State,
local or tribal governments or the private sector. Rather, today's rule
removes enforceable duties and mandates on these entities.
D. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Protection of Children from Environmental Health Risks and Safety
Risks applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of
[[Page 71072]]
the planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant regulatory action as defined by 12866, and
it does not address an environmental health or safety risk that would
have a disproportionate effect on children.
E. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' as defined in the
Executive Order include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to OMB, in a separately identified section of the preamble
to the rule, a federalism summary impact statement (FSIS). The FSIS
must include a description of the extent of EPA's consultation with
State and local officials, a summary of the nature of their concerns
and EPA's position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of State and local
officials have been met. Also, when EPA transmits a draft final rule
with federalism implications to OMB for review pursuant to Executive
Order 12866, it must include a certification from EPA's Federalism
Official stating that EPA has met the requirements of Executive Order
13132 in a meaningful and timely manner.
This rule will not have a substantial direct effect on States or
local governments, or on the distribution of power and responsibilities
among the various levels of government as specified in Executive Order
13132. This rule, by exempting the gasoline anti-dumping requirements
in American Samoa, removes the federal role of mandating and enforcing
these gasoline requirements.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g. materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rule does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
G. Congressional Review
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 808 allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement, 5 U.S.C. 808(2). EPA will submit a
report containing this rule and other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the United States prior to publication of the rule in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(a).
H. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
After considering the economic impacts of today's direct final
rule, I certify that this action will not have a significant economic
impact on a substantial number of small entities. In determining
whether a rule has a significant economic impact on a substantial
number of small entities, the impact of concern is any significant
adverse economic impact on small entities, since the primary purpose of
the regulatory flexibility analyses is to identify and address
regulatory alternatives ``which minimize any significant economic
impact of the proposed rule on small entities.'' 5 U.S.C. Sections 603
and 604. Thus an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. Since
this rule removes the gasoline anti-dumping regulations from American
Samoa, we conclude that today's direct final rule will relieve
regulatory burden for all small entities.
I. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless, the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns and statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting
[[Page 71073]]
elected officials and other representatives of Indian tribal
governments to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.
Today's rule does not create any mandates or impose any obligations
on State, Local, or Tribal governments, and thus does not significantly
or uniquely affect the communities of Indian tribal governments.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
J. Electronic Copies of Rule
A copy of this action is available on the Internet at
http://www.epa.gov/otaq under the title: ``Direct Final Rule on Petition by
American Samoa for Exemption from Anti-Dumping Requirements for
Conventional Gasoline.''
K. Statutory Authority
Authority for the action described in this notice is in section
325(a)(1) (42 U.S.C. 7625-1(a)(1)) of the Clean Air Act as amended.
Dated: November 17, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-30273 Filed 11-28-00; 8:45 am]
BILLING CODE 6560-50-P
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