[Federal Register: December 27, 2006 (Volume 71, Number 248)]
[Proposed Rules]
[Page 77690-77694]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de06-33]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2006-0841; FRL-8261-8]
Regulation of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program to the East St. Louis, IL Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Under section 211(k)(6) of the Clean Air Act, the
Administrator of EPA shall require the sale of reformulated gasoline
(RFG) in an ozone nonattainment area upon the application of the
Governor of the State in which the nonattainment area is located. This
notice proposes to extend the Act's prohibition against the sale of
conventional (i.e., non-reformulated) gasoline in RFG areas to the
Illinois portion of the St. Louis, Missouri-Illinois 8-hour ozone
nonattainment area hereafter referred to as the East St. Louis,
Illinois nonattainment area. The Agency proposes to implement this
prohibition on May 1, 2007, for all persons other than retailers and
wholesale purchaser-consumers (i.e., refiners, importers, and
distributors). For retailers and wholesale purchaser-consumers, EPA
proposes to implement the prohibition on June 1, 2007. On June 1, 2007,
the East St. Louis ozone nonattainment area would be a covered area for
all purposes in the federal RFG program. EPA seeks comment on
alternative implementation dates it could establish if unexpected
delays in issuing the final rule render the proposed implementation
dates impractical.
DATES: Comments on this proposed rule must be received in writing by
January 26, 2007. To request a public hearing, contact Kurt Gustafson
at (202) 343-9219 or gustafson.kurt@epa.gov. If a hearing is requested
no later than January 16, 2007, a hearing will be held at a time and
place to be published in the Federal Register. Persons wishing to
testify at a public hearing must contact Kurt Gustafson at (202) 343-
9219, and submit copies of their testimony to the docket and to Kurt
Gustafson at the addresses below, no later than 10 days prior to the
hearing. After the hearing, the docket for this rulemaking will remain
open for an additional 30 days to receive comments. If a hearing is
held, EPA will publish a document in the Federal Register extending the
comment period for 30 days after the hearing.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0841, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
Mail: Air Docket, Environmental Protection Agency,
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460,
Attention Docket ID No. EPA-HQ-OAR-2006-0841. Comments may also be e-
mailed to a-and-r-docket@epamail.epa.gov. In addition, please mail a
copy of your comments on the information collection provisions to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW.,
Washington, DC 20503.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0841. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
[[Page 77691]]
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: 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, 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 B102, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
Note: The EPA Docket Center suffered damage due to flooding
during the last week of June 2006. The Docket Center is continuing
to operate. However, during the cleanup, there will be temporary
changes to Docket Center telephone numbers, addresses, and hours of
operation for people who wish to make hand deliveries or visit the
Public Reading Room to view documents. Consult EPA's Federal
Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at
http://www.epa.gov/epahome/dockets.htm for current information on
docket operations, locations and telephone numbers. The Docket
Center's mailing address for U.S. mail and the procedure for
submitting comments to http://www.regulations.gov are not affected by the
flooding and will remain the same.
FOR FURTHER INFORMATION CONTACT: Kurt Gustafson, Transportation and
Regional Programs Division (Mail Code 6406J), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: 202-343-9219; fax number: 202-343-2800; e-mail address:
gustafson.kurt@epa.gov.
SUPPLEMENTARY INFORMATION: In the ``Rules and Regulations'' section of
today's Federal Register, we are setting forth this amendment to the
federal RFG regulations as a direct final rule without prior proposal
because we view this as a noncontroversial amendment and anticipate no
adverse comment. We have explained our reasons for this approach in the
preamble to the direct final rule. If we receive no adverse comment, we
will not take further action on this proposed rule. If we receive
adverse comment, we will withdraw the direct final rule and it will not
take effect. We will address all public comments in a subsequent final
rule based on this proposed rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time.
This document concerns the amendment to EPA's regulations governing
RFG and the prohibition of the sale of conventional gasoline supplied
to the East St. Louis area of Illinois. For further information,
including the regulatory language, please see the information provided
in the direct final rule of the same title which is located in the
``Rules and Regulations'' section of this Federal Register.
I. Public Participation and Effective Date
A. Public Comments
Section 211(k)(6) states that, ``[u]pon the application of the
Governor of a State, the Administrator shall apply the prohibition''
against the sale of conventional gasoline in any area of the State
classified as marginal, moderate, serious, or severe for ozone.
Although section 211(k)(6) provides EPA some discretion to establish
the effective date for this prohibition, and allows EPA to consider
whether there is sufficient domestic capacity to produce RFG in
establishing the effective date, EPA does not have discretion to deny a
Governor's request. Therefore, the scope of this action is limited to
setting an effective date for East St. Louis' opt-in to the RFG
program, and not to decide whether East St. Louis should in fact opt
in. For this reason, EPA is only soliciting comments addressing the
implementation date and whether there is sufficient capacity to produce
RFG, and is not soliciting comments that support or oppose East St.
Louis' participating in the program.
EPA is proposing implementation dates for this rule of May 1, 2007,
for all persons other than retailers and wholesale purchaser-consumers,
and June 1, 2007 for retailers and purchaser-consumers. These dates
coincide with the dates that regulated parties are to switch from
producing or dispensing RFG with a wintertime formulation, to producing
or dispensing VOC-controlled RFG for the summer ozone season. Section
211(k)(6)(A) of the Act stipulates that the effective date of an RFG
opt-in must be no later than one year after the application of the
Governor is received. In this case, therefore, the effective date could
be no later than July 10, 2007. EPA solicits comment on the proposed
implementation dates, and also solicits comment on alternative
implementation dates that could be used in the event that EPA is unable
to issue a final rule quickly enough to use the proposed implementation
dates.
Persons with comments containing proprietary information must
distinguish such information from other comments to the greatest extent
and label it as ``Confidential Business Information.'' If a person
making comments wants EPA to base the final rule in part on a
submission labeled as confidential business information, then a non-
confidential version of the document which summarizes the key data or
information should be placed in the public docket. Information covered
by a claim of confidentiality will be disclosed by EPA only to the
extent allowed by the procedures set forth in 40 CFR part 2. If no
claim of confidentiality accompanies the submission when it is received
by EPA, it may be made available to the public without further notice
to the person making comments.
B. Public Hearing Procedures
Any person desiring to present testimony regarding this proposed
rule at the public hearing (see DATES) should notify the contact person
listed above of such intent as soon as possible. A sign-up sheet will
be available at the registration table the morning of the hearing for
scheduling testimony for those who have not notified the contact
person. This testimony will be scheduled on a first come, first served
basis to follow the previously scheduled testimony. EPA suggests that
approximately 50 copies of the statement or material to be presented be
brought to the hearing for distribution to the audience. In addition,
EPA would find it helpful to receive an advance copy of any statement
or material to be presented at the hearing in order to give EPA staff
adequate time to review such material before the hearing. Such advance
copies should be submitted to the contact person listed above.
The official record of the hearing will be kept open for 30 days
following the hearing to allow submission of rebuttal and supplementary
testimony. All such submittals should be directed to the Air Docket,
Docket No. EPA-HQ-OAR-2006-0841 (see ADDRESSES).
[[Page 77692]]
The Director of EPA's Transportation and Regional Programs
Division, Office of Transportation and Air Quality, or her designee, is
hereby designated Presiding Officer of the hearing. The hearing will be
conducted informally and technical rules of evidence will not apply.
Because a public hearing is designed to give interested parties an
opportunity to participate in the proceeding, there are no adversary
parties as such. Statements by participants will not be subject to
cross examination by other participants. A written transcript of the
hearing will be placed in the above docket for review. Anyone desiring
to purchase a copy of the transcript should make individual
arrangements with the court reporter recording the proceeding. The
Presiding Officer is authorized to strike from the record statements
which he/she deems irrelevant or repetitious and to impose reasonable
limits on the duration of the statement of any witness. This
information will be available for public inspection at the EPA Air
Docket, Docket No. EPA-HQ-OAR-2006-0841 (see ADDRESSES).
II. Background
The background for this proposal, including the text of the letter
from the Governor of Illinois requesting that RFG requirements be
applied in the East St. Louis ozone nonattainment area, is set forth in
the companion direct final rule also published in today's Federal
Register.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO. EPA notes that the
economic impacts of the RFG program were assessed in EPA's Regulatory
Impact Analysis for the 1994 RFG rules. See 59 FR 7810-7811 (February
16, 1994). In that analysis the production cost of RFG was estimated to
be 4 to 8 cents per gallon more than conventional gasoline. Since
conventional gas regulations have evolved since that time to be more
like RFG and since the State has a low RVP requirement that also more
closely resembles RFG, EPA expects the costs of RFG in the East St.
Louis area to be at the low end or lower than this range. Nonetheless,
using the 4 to 8 cent per gallon estimate, the cost of the program in
East St. Louis would be significantly lower than the trigger for a
significant regulatory action.
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.
The Office of Management and Budget (OMB) has approved the information
collection requirements that apply to the RFG/anti-dumping program (see
59 FR 7716, February 16, 1994), and has assigned OMB control number
2060-0277 (EPA ICR No. 1951.08).
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 today's proposed rule on
small entities, small entity is defined as: (1) A small business that
has not more than 1,500 employees (13 CFR 121.201); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
In promulgating the RFG and the related anti-dumping regulations
for conventional gasoline, the Agency analyzed the impact of the
regulations on small businesses. The Agency concluded that the
regulations may possibly have some economic effect on a substantial
number of small refiners, but that the regulations may not
significantly affect other small entities, such as gasoline blenders,
terminal operators, service stations and ethanol blenders. See 59 FR
7810-7811 (February 16, 1994). As stated in the preamble to the final
RFG/anti-dumping rule, exempting small refiners from the RFG
regulations would result in the failure of meeting CAA standards. 59 FR
7810. However, since most small refiners are located in the mountain
states or in California, which has its own RFG program, the vast
majority of small refiners are unaffected by the federal RFG
requirements (although all refiners of conventional gasoline are
subject to the anti-dumping requirements). Moreover, all businesses,
large and small, maintain the option to produce conventional gasoline
to be sold in areas not obligated by the Act to receive RFG or those
areas which have not chosen to opt into the RFG program. A complete
analysis of the effect of the RFG/anti-dumping regulations on small
businesses is contained in the Regulatory Flexibility Analysis which
was prepared for the RFG and anti-dumping rulemaking, and can be found
in the docket for that rulemaking. The docket number is: EPA Air Docket
A-92-12.
Today's proposed rule will affect only those refiners, importers or
blenders of gasoline that choose to produce or import RFG for sale in
the East St. Louis ozone nonattainment area, and gasoline distributors
and retail stations in those areas. As discussed above, EPA determined
that, because of their location, the vast majority of small refiners
would be unaffected by the RFG requirements. For the same reason, most
small refiners will be unaffected by today's action. Other small
entities, such as gasoline distributors and retail stations located in
East St. Louis, which will become a covered area as a result of today's
proposed rule, will be subject to the same requirements as those small
entities which are located in current RFG covered areas. The Agency did
not find the RFG regulations to significantly affect these entities.
Based on this, EPA certifies that this proposed rule would not have a
significant adverse impact on a substantial number of small entities.
[[Page 77693]]
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
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 cost-effective 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.
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. Thus, today's proposed rule is not subject to
the requirements of sections 202 and 205 of the UMRA. Although EPA does
not believe that UMRA imposes requirements for this rulemaking, EPA
notes that the environmental and economic impacts of the RFG program
were assessed in EPA's Regulatory Impact Analysis for the 1994 RFG
rules.
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 proposed 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 proposed rule would only
impose requirements on certain refiners and other entities in the
gasoline distribution system, and not on States. The requirements of
the proposed rule will be enforced by the federal government at the
national level. Thus, Executive Order 13132 does not apply to this
proposed 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 9, 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.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175.
Today's proposed rule will affect only those refiners, importers or
blenders of gasoline that choose to produce or import RFG for sale in
the East St. Louis ozone nonattainment area, and gasoline distributors
and retail stations in those areas. 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, entitled ``Protection of Children from
Environmental Health 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.
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 proposed rule is not
subject to Executive Order 13045 because it is not economically
significant.
H. Executive Order 13211: Actions that Significantly Effect Energy
Supply
This proposed 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 Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Section 12(d) of Public Law 104-113, directs us to
use voluntary consensus standards in our regulatory activities unless
it 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) developed or adopted by voluntary consensus standards
bodies. The NTTAA directs us to provide Congress, through OMB,
explanations when we decide not to use available and applicable
voluntary consensus standards. This proposed rulemaking does not
involve technical standards. Therefore, EPA is not considering the use
of any voluntary consensus standards.
J. Statutory Authority
The Statutory authority for the action proposed today is granted to
EPA by sections 211(c) and (k) and 301 of the Clean Air Act, as
amended; 42 U.S.C. 7545(c) and (k) and 7601.
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Motor vehicle pollution.
[[Page 77694]]
Dated: December 20, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. E6-22161 Filed 12-26-06; 8:45 am]
BILLING CODE 6560-50-P