Regulation of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program To the St. Louis, Missouri Moderate Ozone
Nonattainment Area
Related Material
[Federal Register: March 3, 1999 (Volume 64, Number 41)]
[Rules and Regulations]
[Page 10365-10371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr99-12]
[[Page 10365]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 80
Regulation of Fuels and Fuel Additives: Extension of the Reformulated
Gasoline Program to the St. Louis, Missouri Moderate Ozone
Nonattainment Area; Final Rule
[[Page 10366]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-6306-1]
Regulation of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program To the St. Louis, Missouri Moderate Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Under section 211(k)(6) of the Clean Air Act, as amended
(Act), the Administrator of EPA must require the sale of reformulated
gasoline (RFG) in ozone nonattainment areas upon the application of the
governor of the state in which the nonattainment area is located. This
final action extends the Act's prohibition against the sale of
conventional (i.e., non-reformulated) gasoline in RFG areas to the St.
Louis, Missouri moderate ozone nonattainment area. The Agency will
implement this prohibition on May 1, 1999, for all persons other than
retailers and wholesale purchaser-consumers (i.e., refiners, importers,
and distributors). For retailers and wholesale purchaser-consumers,
EPA's final action implements the prohibition on June 1, 1999, as
requested by Governor Mel Carnahan of the state of Missouri. On June 1,
1999, the St. Louis ozone nonattainment area will be a covered area for
all purposes in the federal RFG program.
DATES: This final rule is effective February 25, 1999.
ADDRESSES: Materials relevant to this document have been placed in
Docket A-98-38. The docket is located at the Air Docket Section, Mail
Code 6102, U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, DC 20460, in room M-1500 Waterside Mall. Documents may be
inspected from 8:00 a.m. to 5:30 p.m. A reasonable fee may be charged
for copying docket materials.
An identical docket is also located in EPA's Region VII office in
Docket A-98-38. The docket is located at 726 Minnesota Avenue, Kansas
City, Kansas, 66101. In Region VII contact Wayne G. Leidwanger at (913)
551-7607 or Royan Teter at (913) 551-7609. Documents may be inspected
from 9:00 a.m. to noon and from 1:00--4:00 p.m. A reasonable fee may be
charged for copying docket material.
FOR FURTHER INFORMATION CONTACT: Karen Smith at U.S. Environmental
Protection Agency, Office of Air and Radiation, 401 M Street, SW
(6406J), Washington, DC 20460, (202) 564-9674.
SUPPLEMENTARY INFORMATION: Under section 211(k)(6) of the Clean Air
Act, as amended (Act), the Administrator of EPA must require the sale
of reformulated gasoline in an ozone nonattainment area classified as
Marginal, Moderate, Serious, or Severe upon the application of the
governor of the state in which the nonattainment area is located. This
final action extends the prohibition set forth in section 211(k)(5)
against the sale of conventional (i.e., non-reformulated) gasoline to
the St. Louis, Missouri moderate ozone nonattainment area. The Agency
is finalizing the implementation date of the prohibition described
herein to take effect on May 1, 1999 for all persons other than
retailers and wholesale purchaser-consumers (i.e., refiners, importers,
and distributors). For retailers and wholesale purchaser-consumers, EPA
is finalizing the implementation of the prohibition described herein to
take effect June 1, 1999 as requested by Governor Mel Carnahan of the
state of Missouri. As of the implementation date for retailers and
wholesale purchaser-consumers, the St. Louis ozone nonattainment area
will be a covered area for all purposes in the federal RFG program.
The final preamble and regulatory language are also available
electronically from the EPA internet Web site. This service is free of
charge, except for any cost you already incur for internet
connectivity. A copy of the Federal Register version is made available
on the day of publication on the primary Web site listed below. The EPA
Office of Mobile Sources also publishes these final notices on the
secondary Web site listed below.
Internet (Web)
http://www.epa.gov/fedrgstr/EPA-AIR/
(either select desired date or use Search feature)
http://www.epa.gov/OMSWWW/
(look in What's New or under the specific rulemaking topic)
Please note that due to differences between the software used to
develop the document and the software into which the document may be
downloaded, changes in format, page length, etc. may occur.
Regulated entities: Entities potentially regulated by this action
are those which produce, supply or distribute motor gasoline. Regulated
categories and entities include:
------------------------------------------------------------------------
Category/examples regulated
entities U.S. NAICS title NAIC code
------------------------------------------------------------------------
Petroleum Refiners.......... Petroleum Refiners.. 324110.
Motor vehicle gasoline Petroleum Bulk 422710.
distributors. Stations and
Terminals.
Motor vehicle gasoline Petroleum and 4227, 422720.
distributors. Petroleum Products
Wholesalers.
Retailers................... Gasoline Stations... 447, 4471.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather 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 regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your business is regulated by this action, you should carefully examine
the list of areas covered by the reformulated gasoline program in
Sec. 80.70 of title 40 of the Code of Federal Regulations. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
The remainder of this final rulemaking is organized in the
following sections:
I. Background
A. Clean Air Act Opt-in Provision
B. EPA Procedures and Missouri Opt-In Request
II. Action
III. Response to Comments
A. Comments Regarding Gasoline Supply
B. Comments on State Oxygen Content Standard
C. Comments on Regulatory Flexibility Analysis
IV. Environmental Impact
V. Administrative Designation and Regulatory Analysis
A. Executive Order 12866
B. Regulatory Flexibility
C. Executive Order 12875: Enhancing Intergovernmental
Partnerships
D. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
E. Unfunded Mandates
[[Page 10367]]
F. Paperwork Reduction Act
G. Children's Health Protection
H. National Technology Transfer and Advancement Act of 1995
(NTTAA)
I. Statutory Authority
J. Judicial Review
K. Submission to Congress
I. Background
A. Clean Air Act Opt-in Provision
As part of the Clean Air Act Amendments of 1990, Congress added a
new subsection (k) to section 211 of the Act. Subsection (k) prohibits
the sale of gasoline that EPA has not certified as reformulated
(``conventional gasoline'') in the nine worst ozone nonattainment areas
beginning January 1, 1995. Section 211(k)(10)(D) defines the areas
covered by the reformulated gasoline (RFG) program as the nine ozone
nonattainment areas having a 1980 population in excess of 250,000 and
having the highest ozone design values during the period 1987 through
1989.\1\ Under section 211(k)(10)(D), any area reclassified as a severe
ozone nonattainment area under section 181(b) is also to be included in
the RFG program, such as Sacramento, California. EPA first published
final regulations for the RFG program on February 16, 1994. See 59 FR
7716.
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\1\ Applying these criteria, EPA has determined the nine covered
areas to be the metropolitan areas including Los Angeles, Houston,
New York City, Baltimore, Chicago, San Diego, Philadelphia, Hartford
and Milwaukee.
---------------------------------------------------------------------------
Other ozone nonattainment areas may be included in the program at
the request of the Governor of the state in which the area is located.
Section 211(k)(6)(A) provides that upon the application of a Governor,
EPA shall apply the prohibition against selling conventional gasoline
in ``any area in the State classified under subpart 2 of Part D of
Title I as a Marginal, Moderate, Serious or Severe'' ozone
nonattainment area. Subparagraph 211(k)(6)(A) further provides that EPA
is to apply the prohibition as of the date the Administrator ``deems
appropriate, not later than January 1, 1995, or 1 year after such
application is received, whichever is later.'' In some cases the
effective date may be extended for such an area as provided in section
211(k)(6)(B) based on a determination by EPA that there is
``insufficient domestic capacity to produce'' RFG. Finally, EPA is to
publish a governor's application in the Federal Register.
Although section 211(k)(6) provides EPA discretion to establish the
effective date for this prohibition to apply to such areas, EPA does
not have discretion to deny a Governor's request. Therefore, the scope
of EPA's Notice of Proposed Rulemaking (NPRM) was limited to proposing
an effective date for St. Louis' opt-in to the RFG program. EPA
solicited comments addressing the proposed implementation date and
stated in the NPRM that it was not soliciting comments that supported
or opposed St. Louis' participating in the RFG program.
B. EPA Procedures and Missouri Opt-in Request
EPA received an application July 13, 1998 from the Honorable Mel
Carnahan, Governor of the State of Missouri, for the St. Louis moderate
ozone nonattainment area to be included in the reformulated gasoline
program. The Governor requested an implementation date of June 1, 1999.
EPA published the Governor's letter in the Federal Register, as
required by section 211(k)(6). On September 15, 1998 (63 FR 49317) EPA
proposed to extend the RFG program to the St. Louis moderate ozone
nonattainment area by setting two implementation dates. EPA proposed an
effective date of May 1, 1999 for refiners, importers, and distributors
and June 1, 1999 for retailers and wholesale purchaser-consumers. Today
EPA is taking final action on that NPRM and establishing these
effective dates for St. Louis' opt in to the RFG program.
After publication of the NPRM, EPA did not receive a request for a
public hearing. Since EPA did not receive a request for a public
hearing, the scheduled hearing was canceled and the comment period
ended on October 15, 1998.
II. Action
Pursuant to the governor's letter and the provisions of section
211(k)(6), EPA is today adopting regulations that apply the
prohibitions of subsection 211(k)(5) to the St. Louis, Missouri
moderate ozone nonattainment area as of May 1, 1999, for all persons
other than retailers and wholesale purchaser-consumers. This date
applies to the refinery level and all other points in the distribution
system other than the retail level. For retailers and wholesale
purchaser-consumers, EPA is adopting regulations that apply the
prohibitions of subsection 211(k)(5) to the St. Louis, Missouri ozone
nonattainment area on June 1, 1999. As of the June 1, 1999
implementation date, this area will be treated as a covered area for
all purposes of the federal RFG program.
EPA believes the implementation dates adopted today not only
respond to the Governor's request, but also achieve a reasonable
balance between requiring the earliest possible start date to achieve
air quality benefits in St. Louis and providing adequate lead time for
industry to prepare for program implementation. These dates are
consistent with the State's request that EPA require that RFG be sold
in the St. Louis area at the beginning of the high ozone season, which
begins June 1. These dates will provide environmental benefits by
allowing St. Louis to achieve VOC reduction benefits for the 1999 VOC
control season.
EPA has concluded, based on its analysis of available information,
including public comments received and discussed below (see III.
Response to Comments), that the refining and distribution industry's
capacity to supply federal RFG to St. Louis this summer exceeds the
estimated demand. EPA has also concluded that the implementation dates
adopted today provide adequate lead time to industry to set up storage
and sales agreements to ensure supply of RFG to the St. Louis moderate
ozone nonattainment area.
III. Response to Comments
Only one party, an association representing the interests of
independent gasoline marketers, submitted comments on the proposed
rulemaking. The comments addressed three particular concerns. EPA is
responding to each of these comments in this section.
A. Comments Regarding Gasoline Supply
First, the commentor stated that EPA ignored the fact that the St.
Louis metropolitan statistical area (MSA) extends into Illinois, an
area that has its own summertime gasoline control (a Reid Vapor
Pressure control of 7.2 psi). The commentor expressed concern that
gasoline shortages in the St. Louis area could result from EPA's
granting of the opt-in request, due to the need to supply three
different gasolines (conventional gasoline, reformulated gasoline and
conventional gasoline meeting the IL summertime gasoline standard) to
the St. Louis MSA and surrounding counties.
Section 211(k)(6)(A) provides the Administrator broad discretion to
establish an appropriate effective date for opt-in areas. The effective
date shall be no later than one year after the governor's request to
opt in is received, which in this case would be July 13, 1999. Factors
EPA generally considers in setting effective dates include, but are not
limited to, supply logistics, cost, potential price spikes, the number
of current and potential suppliers for that market, whether such
suppliers have experience producing RFG or the capability to produce
RFG, intent of
[[Page 10368]]
suppliers to withdraw from the market, availability of adequate
gasoline volumes, and the amount of lead time needed by suppliers and
the distribution industry to set up storage and sales agreements to
ensure supply. By evaluating these factors, EPA can make a
determination as to whether industry's capacity to supply RFG for an
opt-in area meets or exceeds the demand.
As the commentor noted, under section 211(k)(6)(B) the
Administrator may determine, after consultation with the Secretary of
Energy, that there is ``insufficient domestic capacity'' to produce
RFG. EPA is not making such a determination in this case. EPA has
consulted with the Department of Engergy (DOE) and has concluded that
there is adequate domestic capability to produce RFG to meet the
current demand nationwide as well as the addition of the St. Louis area
in the summer of 1999. The commentor provided no evidence to the
contrary and no comments were received from bulk terminal operators
concerned about storage capacity or supply.
Based on the Energy Information Administration's (EIA) preliminary
calculations (Docket A-98-38, II-D-02) using survey data and demand
estimates, there are adequate RFG supplies for the areas currently
considering opting in to the program. An estimated 63 thousand barrels
per day of gasoline are required in St. Louis which could be covered by
industry's current capacity to supply roughly an extra 300 thousand
barrels per day of RFG in the eastern half of the U.S.
EIA's information also demonstrates that St. Louis has the capacity
to store about 25 days supply of gasoline and distillate, well within
the industry standard of between 20 and 29 days supply of gasoline and
distillate. The area has a 3,200 thousand-barrel storage capacity.
The Missouri Department of Natural Resources convened a fuels
summit in June 1998 to discuss various fuels options. EPA notes that no
comments regarding supply concerns were made during the fuels summit
held in St. Louis June 15-16, 1998. The final report issued by the
facilitator of the fuels summit described the stakeholders' conclusions
that RFG offered the benefit of continuity and stability, that the
product is already in production, and that surplus capacity is
available (see Docket A-98-38, II-D-03).
The commentor expressed concern that the price differential between
gasoline meeting Illinois' summertime RVP standard and RFG would lead
to marketers providing different gasolines to meet each requirement.
EPA data from the 1998 RFG compliance surveys indicates that RFG sold
in the southern region of the country, on average, meets the 7.2 p.s.i
standard that applies in East St. Louis. In any event, EPA believes
that refiners can produce a single fuel which will meet both the low
RVP requirements of the East St. Louis area and the fuel specifications
of the RFG program. In addition, EPA notes that, in this action, it is
simply setting an effective date for the St. Louis opt in, and does not
have the discretion under Section 211(k)(6) to deny the governor's
request to opt in. Therefore, even if a price differential would result
in marketers' choosing to provide different gasolines to the Missouri
portion of the St. Louis metropolitan area than to the Illinois
portion, that result would not provide a basis for EPA's denial of the
governor's request. Moreover, EPA is setting the effective date for the
opt in close to one year from receipt of the governor's request.
Postponing the effective date for two months (i.e., to approximately
one year from receipt of the request) would likely not affect any price
differential that may exist, and would result in the loss of important
and needed emissions reductions for the summer of 1999.
B. Comments on State Oxygen Content Standard
The commentor's second issue of concern is Missouri's interest in
modifying or adopting a state regulation to increase the oxygenate
content in RFG during the winter months for the five Missouri counties
which have opted into the program. The commentor states that permitting
Missouri to establish a 2.7% oxygenate requirement would essentially
mandate the use of ethanol during the winter months. The commentor
argues that this action would violate the Clean Air Act Amendments and
also violates EPA's own stated policy regarding federal preemption and
neutrality in oxygenate use.
Missouri's adoption of state fuel controls in addition to its opt-
in to RFG is not relevant to establishing the effective date of the RFG
program in St. Louis, which is the action being taken today. The agency
does not have discretion under the Act to second guess the state's
policy choice and deny the opt-in. Moreover, EPA has no authority to
approve or disapprove a state fuel regulation if the state does not
seek approval for the regulation through a section 211(c)(4)(C) waiver
or ask that the regulation be approved into their state implementation
plan. Therefore, the issue of whether the state decides to
independently pursue an oxygenate requirement on top of the RFG program
is not an issue in this rulemaking.
C. Comments on Regulatory Flexibility Analysis
Finally, the commentor questions EPA's decision not to prepare a
regulatory flexibility analysis in connection with this rulemaking. The
commentor argues that if RFG is introduced in the Missouri counties of
the St. Louis MSA without an examination of the potential supply impact
on surrounding ozone nonattainment areas and attainment counties, many
small businesses, including independent gasoline marketers, will be
adversely affected and gasoline prices will rise.
As noted in Section VI. B of this final rule, EPA has determined
that its establishment of the effective date of May 1, 1999, for the
St. Louis RFG opt in does not have a significant economic impact on a
substantial number of small businesses. In promulgating the RFG and
anti-dumping regulations, the Agency analyzed the impact of the
regulations on small businesses. The Agency concluded that the
regulations would not significantly affect small entities, such as
gasoline blenders, terminal operators or service stations. See 59 FR
7810-7811 (February 16, 1994). Moreover, all businesses, large and
small, maintain the option to produce conventional gasoline to be sold
in areas not covered by the RFG program. In addition, EPA does not have
discretion to deny the governor's opt in request, but simply to set an
effective date as described in Section 211(k)(6). Therefore, the impact
relevant for this action is the impact, if any, on small entities of
setting the effective date of May 1, 1999, not the impact of the
State's decision to opt into the RFG program.
The association commenting on this rulemaking challenged EPA's
assertion in the NPRM that it is not necessary to prepare an additional
regulatory flexibility analysis in connection with this rule. The
association, which represents small independent gasoline marketers
(retail outlets), argued that these small entities would experience a
significant negative economic impact as a result of this proposed rule.
They went on to say that if the EPA does not perform a more in-depth
analysis of the gasoline supply consequences of the Missouri opt-in
petition to assure that available supplies of all three St. Louis area
fuels will be adequate, then the economic impact on a substantial
number of small entities will be enormous.
[[Page 10369]]
In response to this comment with respect to EPA's responsibility
under the Regulatory Flexibility Act, it is important to first outline
the requirements to refiners, bulk terminal operators and small
retailers under the RFG program.
Refiners carry the greatest level of burden when an area chooses to
opt into the RFG program. Refiners must carry out a program of
independent sample collection and analysis to establish the gasoline
parameters reported to EPA. The independent lab must collect every
sample. However, the refiner can have the lab test 100% of the samples
or 10% of the samples and test the remainder themselves.
Refiners are also required to meet regulations for segregating RFG
from conventional gasoline and other blendstocks which may require some
additional tankage. Product transfer documents must accompany RFG
batches to assure its compliance with EPA regulations. It is important
to note that no refiners commented on this rulemaking. In fact, during
the fuel summit the RFG option was highlighted for its ease of
implementation (See Air Docket, A-98-39, II-D-03).
Bulk terminals have some oversight regulations including the
maintenance of product transfer documents for up to five years. Bulk
terminals are also responsible for segregation of RFG from conventional
gasoline and other blendstocks. Bulk terminals are required to follow
EPA regulations for the transition from winter time to summer time
gasoline. As the presumptive liability is the same for refiners,
terminal owners and retailers, some bulk terminals may choose to
conduct their own quality assurance testing. No bulk terminal operators
or owners commented on this final rule.
It remains EPA's position that compliance with the requirements of
the RFG rule creates only minimal burdens for gasoline retailers.
Retailers have no reporting requirements, although they are required to
maintain product transfer documents for five years. Maintaining product
transfer documents is a customary business practice as the same
documents are maintained for relevant tax purposes. Unlike other
parties, retailers have no quality assurance testing requirements.
Among other things, retailers are required to ensure a smooth
transition between winter time and summer time gasoline, however this
requirement is also necessary under the requirements of EPA's
volatility regulations so no modification to current practices is
necessary. Retailers are also prohibited from commingling RFG
containing Methyl Tertiary Butyl Ether (MTBE) with RFG containing
ethanol. Retailers must also assure that conventional gasoline (CG) is
not sold in an opt-in area. This can be achieved by carefully
monitoring product transfer documents and refusing any gasoline which
is labeled as conventional gasoline.
For the St. Louis area in particular, the Agency does not agree
with the commentor's arguments regarding supply concerns and their
effect on small entities. As described in Section III.A. of this
notice, EPA has concluded that there will be sufficient supplies of RFG
to meet the demand in St. Louis. Our most recent analysis indicates
that the St. Louis area maintains a capacity to store 4.63 million
barrels of product at five companies operating bulk terminal facilities
in the St. Louis area.2 Since the commentor's concern about
small entity impacts is based on concerns about adequate supplies,
EPA's conclusion that adequate supply does exist supports the Agency's
finding that setting the effective date of May 1, 1999, for the St.
Louis opt in does not have a significant impact on a substantial number
of small entities. 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 (Docket
No. A-92-12).
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\2\ The Petroleum Terminal Encyclopedia, 1997, published by Oil
Price Information Service
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IV. Environmental Impact
The federal RFG program provides reductions in ozone-forming VOC
emissions, air toxics, and starting in 2000, oxides of nitrogen
(NOX). Reductions in VOCs and NOX are
environmentally significant because they lead to reductions in ozone
formation and in secondary formation of particulate matter, with the
associated improvements in human health and welfare. Exposure to
ground-level ozone (or smog) can cause respiratory problems, chest
pain, and coughing and may worsen bronchitis, emphysema, and asthma.
Studies suggest that long-term exposure (months to years) to ozone can
damage lung tissue and may lead to chronic respiratory illness.
Reductions in emissions of toxic air pollutants are environmentally
important because they carry significant benefits for human health and
welfare primarily by reducing the number of cancer cases each year.
Missouri's modeling estimates that once federal RFG is required to
be sold in St. Louis, VOC emissions will be cut by an additional 5.53
tons/day over the VOC reductions from its current low volatility (RVP)
gasoline requirement of 7.0 psi. In addition, all vehicles will have
improved emissions and the area will also get reductions in toxic
emissions.
V. Administrative Designation and Regulatory Analysis
A. Executive Order 12866
Under Executive Order 12866,3 the Agency must determine
whether a regulation 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:
---------------------------------------------------------------------------
\3\ See 58 FR 51735 (October 4, 1993).
---------------------------------------------------------------------------
(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 of 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 entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof, or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.4
---------------------------------------------------------------------------
\4\ Id. at section 3(f)(1)-(4).
---------------------------------------------------------------------------
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Regulatory Flexibility
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this rule. EPA has also
determined that this rule would not have a significant economic impact
on a substantial number of small entities.
In promulgating the RFG and the related anti-dumping regulations,
the Agency analyzed the impact of the regulations on small businesses.
The Agency concluded that the regulations could have some economic
effect on a substantial number of small refiners, but that the
regulations would 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). A complete
[[Page 10370]]
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 (Docket No. A-92-12).
Today's rule will affect only those refiners, importers or blenders
of gasoline that choose to produce or import RFG for sale in the St.
Louis ozone nonattainment area, and gasoline distributors and retail
stations in those areas. EPA has determined that, because of their
location, the vast majority of small refiners would be unaffected by
the RFG requirements. Most small refiners are located in the mountain
states or in California, which has its own RFG program, therefore, the
vast majority of small refiners are unaffected by the federal RFG
requirements finalized today.
Other small entities, such as gasoline distributors and retail
stations located in St. Louis, which will become a covered area as a
result of today's action, will be subject to the same requirements as
those small entities which are located in current RFG covered areas.
The St. Louis area is currently served by five companies operating bulk
terminal facilities in the St. Louis area. EPA has not evaluated
whether any of these companies would be considered small under the RFA.
Nonetheless, given the minimal regulatory burdens and the small number
of bulk terminal companies potentially subject to these RFG
requirements, EPA believes today's action will not result in a
significant impact on a substantial number of small bulk terminals. As
for gasoline retailers, as stated earlier, EPA's position remains that
the RFG rule creates only minimal burdens. The EPA believes that even
in the aggregate (i.e., considering all impacts on all of the types of
business potentially subject to regulation by today's action), approval
of the St. Louis opt-in request will not result in a significant impact
on a substantial number of small entities. Based on the foregoing
information, EPA certifies that this final rule does not have a
significant adverse impact on a substantial number of small entities.
C. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
D. 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 a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected 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 significantly or uniquely affect the
communities of Indian tribal governments. Today's final rule does not
create a mandate for any tribal governments. The rule does not impose
any enforceable duties on these entities. Today's rule will affect only
those refiners, importers or blenders of gasoline that choose to
produce or import RFG for sale in the St. Louis ozone nonattainment
area, and gasoline distributors and retail stations in those areas.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
E. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``UMRA''), P.L. 104-4, EPA must prepare a budgetary impact statement
to accompany any general notice of proposed rulemaking or final rule
that includes a Federal mandate which may result in estimated costs to
State, local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more in any one year. Under Section 205, for
any rule subject to Section 202 EPA generally must select the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Under Section 203, before establishing any regulatory
requirements that may significantly or uniquely affect small
governments, EPA must take steps to inform and advise small governments
of the requirements and enable them to provide input.
EPA has determined that today's rule does not trigger the
requirements of UMRA. The rule does not include a Federal mandate that
may result in estimated annual costs to State, local or tribal
governments in the aggregate, or to the private sector, of $100 million
or more, and it does not establish regulatory requirements that may
significantly or uniquely affect small governments.
F. Paperwork Reduction Act
This action does not add any new requirements 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, and has
assigned OMB control number 2060-0277 (EPA ICR NO. 1591.10).
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
[[Page 10371]]
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 are listed in 40 CFR Part
9 and 48 CFR Chapter 15.
G. Children's Health Protection
This rule is not subject to E.O. 13045, entitled ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62FR19885,
April 23, 1997), because it does not involve decisions on environmental
health risks or safety risks that may disproportionately affect
children. This action will reduce Nox and VOC emissions which are
precursors to ozone. This action will benefit children.
H. National Technology Transfer and Advancement Act of 1995 (NTTAA)
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub L. No. 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
I. Statutory Authority
The Statutory authority for the final action 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.
J. Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action to extend the federal RFG program to the
St. Louis ozone nonattainment area must be filed in the United States
Court of Appeals for the appropriate circuit by [date of
Administrator's signature + 60 days]. 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 my be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2)).
K. Submission to Congress
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Motor vehicle pollution.
Dated: February 25, 1999.
Carol M. Browner,
Administrator.
40 CFR part 80 is amended as follows:
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
1. The authority citation for part 80 is revised to read as
follows:
Authority: Secs. 114, 211, and 301(a) of the Clean Air Act, as
amended (42 U.S.C. 7414, 7545 and 7601(a)).
2. Section 80.70 is amended by adding paragraph (n) to read as
follows:
Sec. 80.70 Covered areas.
* * * * *
(n) The prohibitions of section 211(k)(5) of the act will apply to
all persons other than retailers and wholesale purchaser-consumers on
May 1, 1999. The prohibitions of section 211(k)(5) of the act will
apply to retailers and wholesale purchaser-consumers on June 1, 1999.
As of the effective date for retailers and wholesale purchaser-
consumers, the St. Louis, Missouri ozone nonattainment area is a
covered area. The geographical extent of the covered area listed in
this paragraph shall be the nonattainment boundaries for the St. Louis
ozone nonattainment area as specified in 40 CFR 81.326.
[FR Doc. 99-5233 Filed 3-2-99; 8:45 am]
BILLING CODE 6560-50-P
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