Regulation of Fuels and Fuel Additives: Removal of Reformulated
Gasoline Oxygen Content Requirement for California Gasoline and
Revision of Commingling Prohibition To Address Non-Oxygenated
Reformulated Gasoline in California
[Federal Register: February 22, 2006 (Volume 71, Number 35)]
[Proposed Rules]
[Page 9064-9070]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22fe06-39]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2005-0170; FRL-8035-3]
Regulation of Fuels and Fuel Additives: Removal of Reformulated
Gasoline Oxygen Content Requirement for California Gasoline and
Revision of Commingling Prohibition To Address Non-Oxygenated
Reformulated Gasoline in California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: In the Energy Policy Act of 2005 (Energy Act), Congress
removed the oxygen content requirement for reformulated gasoline (RFG)
in Section 211(k) of the Clean Air Act (CAA). The Energy Act specified
that this change was to be immediately effective in California, and
that it would be effective 270 days after enactment for the rest of the
country. This proposed rule would amend the fuels regulations to remove
the oxygen content requirement for RFG for gasoline produced and sold
for use in California, thereby making the fuels regulations consistent
with amended Section 211(k). In addition, for gasoline produced and
sold for use in California, this rule would extend the current
prohibition against combining VOC-controlled RFG blended with ethanol
with VOC-controlled RFG blended with any other type of oxygenate from
January 1 through September 15, to also prohibit combining VOC-
controlled RFG blended with ethanol with non-oxygenated VOC-controlled
RFG during that time period, except in limited circumstances authorized
by the Act.
The removal of the RFG oxygen content requirement and revision of
the commingling prohibition for gasoline produced and sold for use in
all areas of the country is being published in a separate rulemaking
that would have a later effective date than this California specific
rulemaking.
In the ``Rules and Regulations'' section of the Federal Register,
we are issuing these amendments to the RFG regulations as a direct
final rule without prior proposal because we view them as
noncontroversial amendments and anticipate no adverse comment. We have
explained our reasons for these amendments 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 fuel 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.
DATES: Comments: Comments must be received on or before March 24, 2006.
Under the Paperwork Reduction Act, comments on the information
collection provisions must be received by OMB on or before March 24, 2006.
Hearings: If EPA receives a request from a person wishing to speak
at a public hearing by March 9, 2006, a public hearing will be held on
March 24, 2006. If a public hearing is requested, it will be held at a
time and location to be announced in a subsequent Federal Register
notice. To request to speak at a public hearing, send a request to the
contact in FOR FURTHER INFORMATION CONTACT.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0170 by one of the following methods:
1. http://www.regulations.gov. 
Follow the on-line
instructions for submitting comments.
2. E-mail: Group A-AND-R-DOCKET@epa.gov. Attention Docket ID No.
OAR-2005-0170.
4. Mail: Air and Radiation Docket, Environmental Protection Agency,
Mailcode: 6406J, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Please include a total of two copies. 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.
5. Hand Delivery: EPA Docket Center, Environmental Protection
Agency, 1301 Constitution Avenue, NW, Room B102, Mail Code 6102T,
Washington, DC 20460. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0170. 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'' systems, 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
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. For additional information about EPA's public
docket visit the EPA Docket Center homepage at
http://www.epa.gov/epahome/dockets.htm.
We are only taking comment on issues related to the removal of the
oxygen requirement for RFG produced and sold for use in California, and
the provisions regarding the combining of ethanol blended California
RFG with non-oxygenated California RFG and provisions for retailers
regarding the combining of ethanol blended California RFG with non-
ethanol blended California RFG. Comments on any other issues or
provisions in the RFG regulations are beyond the scope of this rulemaking.
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, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material,
[[Page 9065]]
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 and Radiation 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 and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Marilyn Bennett, Transportation and
Regional Programs Division, Office of Transportation and Air Quality
(6406J), Environmental Protection Agency, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460; telephone number: (202) 343-9624; fax
number: (202) 343-2803; e-mail address: mbennett@epa.gov.
SUPPLEMENTARY INFORMATION: For further information, please see the
information provided in the direct final action that is located in the
``Rules and Regulations'' section of this Federal Register publication.
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by this action include those involved
with the production and importation of conventional gasoline motor
fuel. Regulated categories and entities affected by this action include:
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NAICS codes SIC codes Examples of potentially
Category \a\ \b\ regulated parties
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Industry............. 324110 2911 Petroleum Refiners,
Importers.
Industry............. 422710 5171 Gasoline Marketers and
Distributors.
422720 5172 .......................
Industry............. 484220 4212 Gasoline Carriers.
484230 4213 .......................
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.
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 be potentially regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your entity is regulated by this action, you should carefully examine
the applicability criteria of Part 80, subparts D, E and F of title 40
of the Code of Federal Regulations. If you have any question regarding
applicability of this action to a particular entity, consult the person
in the preceding FOR FURTHER INFORMATION CONTACT section above.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or
all of the information that you claim to be CBI. For CBI information in a
disk or CD ROM that you mail to EPA, mark the outside of the disk or CD
ROM as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI). In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR Part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
3. Docket Copying Costs. You may be charged a reasonable fee for
photocopying docket materials, as provided in 40 CFR part 2.
C. Outline of This Preamble
I. General Information
II. Removal of the RFG Oxygen Content Requirement for California Gasoline
III. Combining Ethanol Blended RFG With Non-Ethanol Blended RFG
IV. Environmental Effects of This Action
V. Statutory and Executive Order Reviews
VI. Statutory Provisions and Legal Authority
II. Removal of the RFG Oxygen Content Requirement for California Gasoline
Section 211(k) of the 1990 Amendments to the CAA required
reformulated gasoline (RFG) to contain oxygen in an amount that equals
or exceeds 2.0 weight percent. CAA Section 211(k)(2)(B). Accordingly,
EPA's current regulations require RFG refiners, importers and oxygenate
blenders to meet a 2.0 or greater weight percent oxygen content
standard. 40 CFR 80.41. Recently, Congress passed legislation which
amended Section 211(k) of the CAA to remove the RFG oxygen
requirement.\1\ The Energy Act specified that this change was to be
immediately effective in California, and that it would be effective 270
days after enactment for the rest of the country. To make the fuels
rules consistent with the current Section 211(k), today's rule would
modify the RFG regulations to remove the oxygen standard in Sec. 80.41
for gasoline produced and sold for use in California.\2\ (Modifications
to the RFG regulations to remove the oxygen standard for gasoline
produced and sold for use in all areas of the country are
[[Page 9066]]
being published in a separate rulemaking.)
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\1\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), section
1504(a), 119 STAT 594, 1076-1077(2005).
\2\ The RFG regulations were promulgated under authority of CAA
Section 211(c) as well as CAA Section 211(k). The regulations were
adopted under section 211(c) primarily for the purpose of applying
the preemption provisions in Section 211(c)(4). See 59 FR 7809
(February 16, 1994.)
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Today's rule also would modify other provisions of the RFG
regulations which relate to the removal of the oxygen content
requirement for gasoline produced and sold for use in California. The
modifications to the affected sections are listed in the following table:
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\3\ The regulations also include oxygen minimum standards for
simple model RFG and Phase I complex Model RFG, and an oxygen
maximum standard for simple model RFG. See Sec. Sec. 80.41(a)
through (d), and (g). These standards are no longer in effect and
today's rule would not modify the regulations to remove these
standards or compliance requirements relating to these standards,
except where such requirements are included in provisions requiring
other changes in today's rule.
Sec. Sec. 80.41(e) and (f)............. Would remove the per-gallon
and averaged oxygen
standards for Phase II
Complex Model RFG for
gasoline produced and sold
for use in California.\3\
Sec. 80.41(o)........................... Would add a provision which
specifies that the
requirements in Sec.
80.41(o) do not apply to
California gasoline.
Sec. 80.78(a)........................... Would remove the prohibition
against producing and
marketing California RFG
that does not meet the
oxygen minimum standard
since the oxygen standard
has been removed. Also
would remove requirements
for California gasoline to
meet the oxygen minimum
standard during transition
from RBOB to RFG in a
storage tank. (Today's rule
also would remove the
provision in Sec.
80.78(a)(1) regarding
compliance with the maximum
oxygen standard in Sec.
80.41 for simple model RFG.
See footnote 3.)
Sec. 80.79.............................. Would remove quality
assurance requirement to
test California gasoline
for compliance with the
oxygen standard.
Sec. 80.81(d)........................... Would remove requirement for
oxygenate blenders to
exclude California gasoline
from compliance
calculations since
oxygenate blenders are no
longer required to
demonstrate compliance with
a standard.
Sec. 80.81(e)........................... Would remove Sec.
80.81(e)(2) which required
refiners, importers and
oxygenate blenders to
provide written
notification to EPA to
produce or import gasoline
certified under Title 13 of
the California Code of
Regulations, sections 2265
or 2266, or to comply with
an oxygen content
compliance survey option,
since these requirements
related to ensuring
compliance with the Federal
RFG oxygen content
standard. Also removes
reference to oxygenate
blenders in Sec.
80.81(e)(3) regarding
withdrawal of California
gasoline exemptions for
parties who have violated
California or federal RFG
regulations.
Sec. 80.81(h)........................... Would remove provisions for
oxygenate blenders to use
California test methods for
purposes of compliance
testing, since oxygenate
blenders are no longer
required to conduct testing
for compliance with the
oxygen standard.
III. Combining Ethanol Blended California RFG With Non-Ethanol Blended
California RFG
As discussed above, Section 211(k) required RFG to contain a
minimum of 2.0 weight percent oxygen, and the current fuels regulations
reflect this requirement. Refiners, importers and oxygenate blenders
have used different oxygenates to meet this requirement. RFG that
contains ethanol must be specially blended to account for the RVP
``boost'' that ethanol provides, and the consequent possibility of
increased VOC emissions. EPA's existing regulations prohibit the
commingling of ethanol-blended RFG with RFG containing other oxygenates
because the non-ethanol RFG is typically not able to be mixed with
ethanol and still comply with the VOC performance standards. Since all
RFG is currently required to contain oxygen, the regulations do not now
contain a prohibition against combining ethanol-blended RFG with non-
oxygenated RFG. With the removal of the oxygen content requirement for
RFG, EPA expects that refiners and importers will be producing some RFG
without oxygen and some with ethanol or other oxygenates. Mixing
ethanol-blended RFG with non-oxygenated RFG has the same potential to
create an RVP ``boost'' for the non-oxygenated gasoline as mixing
ethanol-blended RFG with RFG blended with other oxygenates. This is of
particular concern regarding RFG because most refiners and importers
comply with the RFG VOC emissions performance standard on an annual
average basis calculated at the point of production or importation. All
downstream parties are prohibited from marketing RFG which does not
comply with a less stringent downstream VOC standard. However, even
though the combined gasoline may meet the downstream VOC standard,
combining ethanol-blended RFG with non-oxygenated RFG may cause some
gasoline to have VOC emissions which are higher on average than the
gasoline as produced or imported. Thus, with regard to gasoline
produced and sold for use in California, today's rule would extend the
commingling prohibition currently in the fuels regulations to include a
prohibition against combining VOC-controlled ethanol-blended RFG with
VOC-controlled non-oxygenated RFG during the period January 1 through
September 15, with one exception, described below.
The Energy Act contains a provision which specifically addresses
the combining of ethanol-blended RFG with non-ethanol-blended RFG.\4\
Under this new provision, retail outlets are allowed to sell non-
ethanol-blended RFG which has been combined with ethanol-blended RFG
under certain conditions. First, each batch of gasoline to be blended
must have been ``individually certified as in compliance with
subsections (h) and (k) prior to being blended.'' Second, the retailer
must notify EPA prior to combining the gasolines and identify the exact
location of the retail outlet and specific tank in which the gasoline
is to be combined. Third, the retailer must retain, and, upon request
by EPA, make available for inspection certifications accounting for all
gasoline at the retail outlet. Fourth, retailers are prohibited from
combining VOC-controlled gasoline with non-VOC-controlled gasoline
between June 1 and September 15. Retailers are also limited with regard
to the frequency in which batches of non-ethanol-blended RFG may be
combined with ethanol-blended RFG. Retailers may combine such batches
of RFG a maximum of two periods between May 1 and September 15. Each
period may be no more than ten consecutive calendar days. This proposed
rule would implement this provision of the Energy Act for California
gasoline. A separate rule will implement this provision for the rest of
the country, with a later effective date coinciding with the removal of
the RFG oxygen content requirement for such areas.
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\4\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), section
1513, 119 STAT 594, 1088-1090 (2005).
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This new provision will typically be used by retail outlets to
change from the use of RFG containing ethanol to RFG not containing
ethanol or vice versa. (Such a change is usually referred to as a
``tank turnover.'') Such blending can result in additional VOC emissions,
[[Page 9067]]
perhaps resulting in gasoline that does not comply with downstream VOC
standards. The Energy Act is unclear as to when the gasoline in the
tank where blending occurs must be in compliance with the downstream
VOC standard.
EPA has already promulgated regulations setting out a methodology
for making tank turnovers. 40 CFR 80.78(a)(10). EPA believes retailers
and wholesale purchaser-consumers should have additional flexibility
during the time that they are converting their tanks from one type of
RFG to another, while minimizing the time period during which non-
compliant gasoline is present in their tanks and being sold. Today's
changes would provide additional flexibility to the regulated parties
by interpreting the Energy Act to provide retailers and wholesale
purchaser-consumers with relief from compliance with the downstream VOC
standard during the ten-day blending period, but requiring that the
gasoline in the tank thereafter be in compliance or be deemed in
compliance with the downstream VOC standard.
To provide assurance that gasoline is in compliance with the
downstream VOC standard after the ten-day period, today's regulations
would provide two options for retailers and wholesale purchaser-
consumers. Under the first option, the retailer may add both ethanol-
blended RFG and non-ethanol-blended RFG to the same tank an unlimited
number of times during the ten-day period, but must test the gasoline
in the tank at the end of the ten-day period to make sure that the RFG
is in compliance with the VOC standard. Under the second option, the
retailer must draw the tank down as much as practicable at the start of
the ten-day period, before RFG of another type is added to the tank,
and add only RFG of one type to the tank during the ten-day period.
That is, the retailer may not add both ethanol-blended RFG and non-
ethanol-blended RFG to the tank during the ten-day period, but may add
only one of these types of RFG. EPA believes that when retailers and
wholesale purchaser-consumers use this second option it is likely that
their gasoline will comply with the downstream VOC standard at the end
of the ten-day period, so that testing will not be necessary. We also
believe that this approach is compatible with current practices of most
retailers and wholesale purchaser-consumers, and expect that most will
find it preferable to testing at the end of the ten-day period.
The commingling provisions would apply at a retail level such that
each retailer may take advantage of a maximum of two ten-day blending
periods between May 1 and September 15 of each calendar year. Thus, the
options described above would be available to each retail outlet for
each of two ten-day periods during the VOC control period. During each
ten-day period the options would be available for all tanks at that
retail outlet.
Regarding the requirement that each batch of gasoline to be blended
must have been individually certified as in compliance with subsections
(h) and (k), EPA notes that all gasoline in compliance with RFG
requirements is deemed certified under Section 211(k) pursuant to Sec.
80.40(a). Section 211(h) addresses RVP requirements for gasoline, but
EPA does not have a program to certify gasoline as in compliance with
this provision. For purposes of the commingling exception for retail
outlets incorporated today in Sec. 80.78(a)(8), EPA would deem
gasoline that is in compliance with the regulatory requirements
implementing Section 211(h) to be certified under that section.
Regarding the requirement that retailers retain and make available to
EPA upon request ``certifications'' accounting for all gasoline at the
retail outlet, EPA would deem this requirement fulfilled where the
retailer retains and makes available to EPA, upon request, the product
transfer documentation required under Sec. 80.77 for all gasoline at
the retail outlet.
Under this proposed rule, the provisions which allow retailers to
sell non-ethanol-blended California RFG that has been combined with
ethanol-blended California RFG would also apply to wholesale purchaser-
consumers. Like retailers, wholesale purchaser-consumers are parties
who dispense gasoline into vehicles, and EPA interprets the Energy Act
reference to retailers as applying equally to them. As a result,
wholesale purchaser-consumers are treated in the same manner as
retailers under this rule. This is consistent with the manner in which
wholesale purchaser-consumers have been treated in the past under the
fuels regulations.
Most of the provisions of this rule are necessary to implement
amendments to the Clean Air Act included in the Energy Act that
eliminate the RFG oxygen content requirement and allow limited
commingling of ethanol-blended and non-ethanol-blended RFG. The
extension of the general commingling prohibition in the fuels
regulations to cover non-oxygenated RFG is necessary because of the
Energy Act amendments, but is issued pursuant to authority of CAA
Section 211(k). This provision extends the current program to reflect
the presence of non-oxygenated RFG, and is designed to enhance
environmental benefits of the RFG program at reasonable cost to
regulated parties.
IV. Environmental Effects of This Action
We anticipate that little or no environmental impact would occur as
a result of today's proposed action to remove the oxygenate requirement
for RFG. The RFG standards consist of content and emission performance
standards. Refiners and importers would have to continue to meet all
the emission performance standards for RFG whether or not the RFG
contains any oxygenate. This includes both the VOC and NOX
emission performance standards, as well as the air toxics emission
performance standards which were tightened in the mobile source air
toxics (MSAT) rule in 2001.\5\ New MSAT standards currently under
development are anticipated to achieve even greater air toxics emission
reductions.
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\5\ 66 FR 17230 (March 29, 2001).
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We have analyzed the potential impacts on emissions that could
result from removal of the oxygenate requirement in the context of
requests for waivers of the Federal oxygen requirement.\6\ We found
that changes in ethanol use could lead to small increases in some
emissions and small decreases in others while still meeting the RFG
performance standards. These potential impacts are associated with the
degree to which ethanol would continue to be blended into RFG after
removal of the oxygen requirement. Past analyses have projected
significant use of ethanol in RFG in California despite removal of the
oxygenate requirement.\7\ Given current gasoline prices and the
tightness in the gasoline market, the favorable economics of ethanol
blending, a continuing concern over MTBE use by refiners, the emission
performance standards still in place for RFG, and the upcoming
renewable fuels mandate,\8\ we believe that ethanol will continue to be
used in RFG in California after the oxygen requirement is
[[Page 9068]]
removed. As a result, we believe that the removal of the oxygenate
mandate would have little or no environmental impact in the near
future. We will be looking at the long term effect of oxygenate use in
the context of the rulemaking to implement the renewable fuels mandate.
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\6\ See e.g., California Oxygen Waiver Decision, EPA420-S-05-005
(June 2005); Analysis of and Action on New York Department of
Conservation's Request for a Waiver of the Oxygen Content
Requirement in Federal Reformulated Gasoline, EPA420-D-05-06 (June 2005).
\7\ Technical Support Document: Analysis of California's Request
for Waiver of the Reformulated Gasoline Oxygen Content Requirement
for California Covered Areas, EPA420-R-01-016 (June 2001).
\8\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), section
1501, 119 STAT 594, 1067-1076, (2005).
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V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this direct final rule does not satisfy
the criteria stated above. As a result, this rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to OMB review. Today's rule would
remove certain requirements for all refiners, importers and oxygenate
blenders of RFG in California. As a result, this rule is expected to
greatly reduce overall compliance costs for all refiners, importers and
oxygenate blenders of California RFG. This rule also would provide
options for gasoline retailers in California to commingle certain
compliant gasolines which otherwise would be prohibited from being
commingled. Although there may be small compliance costs associated
with one of these options, we believe that the additional flexibility
provided by this option would reduce overall compliance costs for these
parties.
B. Paperwork Reduction Act
This proposed action would not impose any new information
collection burden. Refiners, importers and oxygenate blenders of
California RFG are exempt from the reporting and recordkeeping
requirements under the RFG regulations. 40 CFR 80.81. Therefore, the
removal of the oxygen requirement for California RFG would not have any
ICR implications for refiners, importers and oxygenate blenders of
California RFG. Small testing costs may be associated with one of the
options for California gasoline retailers to commingle compliant
gasolines. However, these testing costs are expected to be minimal and
would be greatly outweighed by the flexibility provided by the option
to commingle compliant gasolines. The Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations in 40 CFR Part 80 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0277, EPA ICR number 1591.15. A
copy of the OMB approved Information Collection Request (ICR) may be
obtained from Susan Auby, Collection Strategies Division; U.S.
Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW.,
Washington, DC 20460 or by calling (202) 566-1672.
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
Procedures 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 rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's regulations at 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.
After considering the economic impacts of today's rule on small
entities, EPA certifies that this action would 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. 603
and 604. Thus, an agency may conclude 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.
This proposed rule would remove certain requirements for all
refiners, importers and oxygenate blenders of California RFG, including
small business refiners, importers and oxygenate blenders.
Specifically, this rule would remove the burden on refiners, importers
and oxygenate blenders to comply with the RFG oxygen requirement and
associated compliance requirements. This rule also would provide
options for gasoline retailers to commingle certain compliant gasolines
which otherwise would be prohibited from being commingled. Although one
option requires some compliance testing, the testing costs are expected
to be minimal. As a result, we have concluded that this proposed rule,
overall, would relieve regulatory burden for small entities subject to
the RFG regulations. We continue to be interested in the potential
impacts of the proposed rule on small entities and
[[Page 9069]]
welcome comments on issues related to such impacts.
D. 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 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.
This proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local or
tribal governments or the private sector that will result in
expenditures of $100 million or more. This rule would affect gasoline
refiners, importers and oxygenate blenders by removing the oxygen
content requirement for RFG and associated compliance requirements, and
would allow gasoline retailers options for commingling compliant
gasolines which otherwise would be prohibited from being commingled.
This rule would have the overall effect of reducing the burden of the
RFG regulations on these regulated parties. Therefore, the requirements
of the Unfunded Mandates Act do not apply to this action.
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 would
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. This rule would remove the
burden on regulated parties of having to comply with the oxygen
standard for RFG in California, and would allow gasoline retailers to
commingle certain compliant gasolines which otherwise would be
prohibited from being commingled. Thus, Executive Order 13132 does not
apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It would not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This rule would apply to gasoline refiners, importers, oxygenate
blenders and retailers who supply RFG in California. This action
contains certain modifications to the Federal requirements for RFG, and
would not impose any enforceable duties on communities of Indian tribal
governments. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
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 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 and does not establish
an environmental standard intended to mitigate health or safety risks.
H. Executive Order 13211: Acts That Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not an economically ``significant energy
action'' as defined in Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355 (May 22, 2001)) because it does not have a
significant adverse effect on the supply, distribution, or use of
energy. This rule would eliminate the oxygen content requirement for
RFG in California. This change would have the effect of reducing
burdens on suppliers of RFG, which, in turn, may have a positive effect
on gasoline supplies. RFG refiners and blenders may continue to use
oxygenates at their discretion where and when it is most economical to
do so. With the implementation of the renewable fuels standard also
contained in the Energy Act, the blending of
[[Page 9070]]
ethanol, in particular, into gasoline is expected to increase
considerably, not decrease. Therefore, despite this action to remove
the oxygenate mandate for RFG in California, when viewed in the context
of companion energy legislation, overall use of oxygenates is expected
to increase in the future. This rule also would allow gasoline
retailers to commingle certain compliant gasolines which otherwise
would be prohibited from being commingled. This also may have a
positive effect on gasoline supplies.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 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 proposed would not establish new technical standards within
the meaning of the NTTAA. Therefore, EPA did not consider the use of
any voluntary consensus standards.
VI. Statutory Provisions and Legal Authority
The statutory authority for the actions in today's direct final
rule comes from sections 211(c), 211(k) and 301(a) of the CAA.
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Motor vehicle pollution, Reporting and recordkeeping
requirements.
Dated: February 14, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-1614 Filed 2-21-06; 8:45 am]
BILLING CODE 6560-50-P
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