[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Proposed Rules]
[Pages 31269-31274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14573]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-5219-4]


Request for Opt-Out of the Reformulated Gasoline Program: 
Jefferson County, Albany and Buffalo, New York; Twenty-Eight Counties 
in Pennsylvania; and Hancock and Waldo Counties in Maine, General 
Procedures for Future Opt-Outs and Extension of Stay

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In today's action, EPA is proposing to remove Jefferson County 
and the Albany and Buffalo areas in New York; twenty-eight counties in 
Pennsylvania; and Hancock and Waldo counties in Maine from the list of 
covered areas identified in section 80.70 of the reformulated gasoline 
rule. This is based on requests from the Governors of New York, 
Pennsylvania and Maine that these areas opt out of this federal 
program. In a separate action signed by the EPA Administrator on 
December 29, 1994, EPA stayed the application of the reformulated 
gasoline regulations in Jefferson County and the Albany and Buffalo 
areas of New York; the twenty-eight opt-in counties in Pennsylvania; 
and Hancock and Waldo counties in Maine effective January 1, 1995 until 
July 1, 1995, to allow finalization of this rulemaking. Today's notice 
also proposes to extend this stay during the pendency of this 
rulemaking, until the agency takes final action on the proposed opt-out 
for these areas. This action does not affect the necessity for these 
areas to comply with the requirements of the anti-dumping program.
    EPA is also proposing general rules establishing the criteria and 
procedures for states to opt-out of the RFG program.

DATES: Regarding the proposal to extend the stay of the reformulated 
gasoline regulations in the designated New York, Pennsylvania, and 
Maine counties, no public hearing will be held. Comments must be 
received by June 28, 1995.
    If a public hearing is held on the opt-out of the designated New 
York, Pennsylvania, and Maine counties or on the general procedures for 
future opt-outs, comments must be received by August 4, 1995. If a 
hearing is not held, comments must be received by July 14, 1995. Please 
direct all correspondence to the addresses shown below.
    The Agency will hold a public hearing on the proposed opt-out of 
the designated New York, Pennsylvania, and Maine counties or on the 
general procedures for future opt-outs if one is requested by June 21, 
1995. If a public hearing is held, it will take place on July 5, 1995. 
To request a hearing, or to find if and where a hearing will be held, 
please call Mark Coryell at (202) 233-9014.

ADDRESSES: Comments should be submitted (in duplicate, if possible) to 
Air Docket Section, Mail Code 6102, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460. A copy should also be 
sent to Mr. Mark Coryell at U.S. Environmental Protection Agency, 
Office of Air and Radiation, 401 M Street, SW (6406J), Washington, DC 
20460.
    Materials relevant to this notice have been placed in Docket A-94-
68. 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 4:00 p.m. A reasonable fee may be charged for copying 
docket material.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Coryell, U.S. Environmental 
Protection Agency Office of Air and Radiation, 401 M Street, SW 
(6406J), Washington, DC 20460, (202) 233-9014.

SUPPLEMENTARY INFORMATION: A copy of this action is available on the 
OAQPS Technology Transfer Network Bulletin Board System (TTNBBS). The 
TTNBBS can be accessed with a dial-in phone line and a high-speed modem 
(PH# 919-541-5742). The parity of your modem should be set to none, the 
data bits to 8, and the stop bits to 1. Either a 1200, 2400, or 9600 
baud modem should be used. When first signing on, the user will be 
required to answer some basic informational questions for registration 
purposes. After completing the registration process, proceed through 
the following series of menus:

(M)  OMS
(K)  Rulemaking and Reporting
(3)  Fuels
(9)  Reformulated gasoline

A list of ZIP files will be shown, all of which are related to the 
reformulated gasoline rulemaking process. Today's action will be in the 
form of a ZIP file and can be identified by the following title: 
OPTOUT.ZIP. To download this file, type the instructions below and 
transfer according to the appropriate software on your computer:

ownload, rotocol, xamine, ew, ist, or elp Selection 
or  to exit: D filename.zip

    You will be given a list of transfer protocols from which you must 
choose one that matches with the terminal software on your own 
computer. The software should then be opened and directed to receive 
the file using the same protocol. Programs and instructions for de-
archiving compressed files can be found via ystems Utilities from 
the top menu, under rchivers/de-archivers. 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.

I. Introduction

    This notice describes EPA's proposed action to remove Jefferson 
County and the Albany and Buffalo areas in New York (a total of nine 
counties in New York); the twenty-eight opt-in counties in 
Pennsylvania; and Hancock and Waldo counties in Maine from the list of 
covered areas defined by Sec. 80.70 of the reformulated gasoline rule 
per the request of the States of New York, Pennsylvania and Maine. It 
also 

[[Page 31270]]
describes the Agency's proposal for general rules concerning criteria 
and procedures for states to opt out of the reformulated gasoline 
program. Finally, today's notice also proposes to extend the stay of 
application of the reformulated gasoline regulations in the designated 
counties during the pendency of this rulemaking, until the agency takes 
final action on the proposed opt-out for these areas.
II. Background

    The reformulated gasoline (RFG) program is designed to reduce ozone 
levels in the largest metropolitan areas of the U.S. with the worst 
ground level ozone problems by reducing vehicle emissions of the ozone 
precursors, specifically volatile organic compounds (VOC), through fuel 
reformulation. Reformulated gasoline also achieves a significant 
reduction in air toxics. In Phase II of the program nitrogen oxides 
(NOX), another precursor of ozone, are also reduced. The 1990 
Amendments to the Clean Air Act requires reformulated gasoline in the 
nine cities with the highest levels of ozone. In section 211(k)(6), 
Congress provided the opportunity for states to choose to opt-in to the 
RFG program for their other nonattainment areas. Opting in under this 
provision is relatively straightforward. The only area of discretion 
for EPA involves establishing an appropriate effective date for the 
start of the program in the opt-in area. To date, EPA has acted under 
this provision on a case-by-case basis, given that the lead time needed 
to supply a new area is often dependent on the specific refineries that 
would supply the area and the specific distributional infrastructure 
available between the refineries and the local retail stations. While 
EPA is not now proposing regulations that would establish the effective 
date for an opt-in area, EPA is interested in receiving comment on the 
need and benefit of having such regulatory provisions, as well as the 
most appropriate provisions.
    EPA recognizes that there is considerable interest in allowing 
attainment areas to participate in the federal reformulated gasoline 
program. The Ozone Transport Commission, established under section 184 
of the Act to assess the degree of interstate transport of ozone 
throughout the ozone transport region,1 is reviewing the viability 
of a region-wide reformulated gasoline program. Other areas which are 
currently classified attainment for the ozone air quality standard but 
which have ozone monitoring data close to the federal ozone standard 
are considering various ozone control measures to mitigate the risk of 
future ozone violations. One such control measure is the reformulated 
gasoline program. In light of the expressed interest in allowing 
attainment areas to participate in the reformulated gasoline program, 
EPA is soliciting comment on the feasibilty of and need for attainment 
area opt-in.

    \1\ The ozone transport region is comprised of the following 
states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New 
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, 
Vermont, Virginia, and the District of Columbia.
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    EPA questions whether section 211(k) of the Act provides the Agency 
with the discretion to allow attainment areas to opt-in to this federal 
program. For example, section 211(k)(6) specifies that EPA shall extend 
the prohibition of section 211(k)(5) to ozone nonattainment areas upon 
the request of a governor. In addition, section 211(k)(1) authorizes 
EPA to establish requirements for reformulated gasoline to be used in 
specified nonattainment areas. EPA invites comment on its authority 
under section 211(k). EPA also invites comment on whether the Agency 
has authority under section 211(c) of the Act to establish a 
requirement that federally certified RFG be sold in attainment areas 
that ``opt-in'' under such a program.
    EPA issued final rules establishing requirements for reformulated 
gasoline on December 15, 1993. 59 FR 7716 (February 16, 1994). During 
the development of the RFG rule a number of States inquired as to 
whether they would be permitted to opt-out of the RFG program at a 
future date, or opt-out of certain of the requirements. This was based 
on their concern that the air quality benefits of RFG, given their 
specific needs, might not warrant the cost of the program, specifically 
focusing on the more stringent standards in Phase II of the program 
(starting in the year 2000). Such States wished to retain their ability 
to opt-out of the program. Other States indicated they viewed RFG as an 
interim strategy to help bring their nonattainment areas into 
attainment sooner than would otherwise be the case.
    The regulation issued on December 15, 1993 did not include 
procedures for opting out of the RFG program because EPA had not 
proposed and was not ready to adopt such procedures. However, the 
Agency did indicate that it intended to propose such procedures in a 
separate rule.
    Jefferson County and the other eight New York counties affected by 
this proposal were included as covered areas in EPA's reformulated 
gasoline regulations based on Governor Mario Cuomo's request of October 
28, 1991, that these areas be included under the Act's opt-in provision 
for ozone nonattainment areas (57 FR 7926, March 5, 1992). See 40 CFR 
80.70(j)(10)(vi). On November 29, 1994, EPA received a petition from 
the Commissioner of New York's Department of Environmental 
Conservation, Mr. Langdon Marsh, to remove Jefferson County from the 
list of areas covered by the requirements of the reformulated gasoline 
program. EPA understands that Commissioner Marsh is acting for Governor 
Cuomo in this matter. The Administrator responded to the State's 
request in a letter to Commissioner Marsh dated December 12, 1994, 
stating EPA's intention to grant New York's request, and conduct 
rulemaking to implement this. In the letter of December 12, addressing 
the opt-out request for Jefferson County, the Administrator also 
indicated that effective January 1, 1995, and until the rulemaking to 
remove Jefferson County from the list of covered areas is completed, 
EPA would not enforce the reformulated gasoline requirements in 
Jefferson County for reformulated gasoline violations arising after 
January 1, 1995. This was based on the particular circumstances in 
Jefferson County.
    On December 23, 1994, Commissioner Marsh of New York's Department 
of Environmental Conservation wrote to further request the opt-out of 
the Albany and Buffalo areas which include the counties of Albany, 
Greene, Montgomery, Rennsselaer, Saratoga, Schenectady, Erie and 
Niagara. EPA Assistant Administrator for Air and Radiation, Mary 
Nichols, responded to the state's request in a letter to Commissioner 
Marsh dated December 28, 1994, stating EPA's intention to grant New 
York's request, and conduct rulemaking to implement this. The December 
28 letter also indicated EPA's intent to stay the reformulated gasoline 
regulations from January 1, 1995, until July 1, 1995, in the specified 
counties while the Agency completes rulemaking to appropriately change 
the regulations. The letter stated, however, that the requirements of 
the reformulated gasoline program would apply in these areas until the 
stay becomes effective January 1, 1995.
    Twenty-eight counties in Pennsylvania were included as covered 
areas in EPA's reformulated gasoline regulations based on Governor 
Robert P. Casey's request dated September 25, 1991. See 40 CFR 
80.70(j)(11) (i) through (xxviii). The counties referred to are listed 
as follows: Adams, Allegheny, Armstrong, Beaver, Berks, Blair, Butler, 
Cambria, Carbon, Columbia, 

[[Page 31271]]
Cumberland, Dauphin, Erie, Fayette, Lackawanna, Lancaster, Lebanon, 
Lehigh, Luzerne, Mercer, Monroe, Somerset, Northhampton, Perry, 
Washington, Westmoreland, Wyoming and York. On December 1, 1994, EPA 
received a petition from Governor Casey to remove these twenty-eight 
counties from the list of covered areas defined by Sec. 80.70 of the 
reformulated gasoline rule. As with New York's request, the 
Administrator responded to the State's request in a letter to Governor 
Casey dated December 12, 1994, stating EPA's intention to grant 
Pennsylvania's request, and conduct rulemaking to implement this. 
Effective January 1, 1995, and until formal rulemaking to remove the 
twenty-eight counties from the list of covered areas is completed, EPA 
would not enforce the reformulated gasoline requirements in these 
twenty-eight counties for reformulated gasoline violations arising 
after January 1, 1995. This was based on the particular circumstances 
in Pennsylvania. EPA has reserved its authority to enforce the 
reformulated gasoline program for violations that may have occurred 
prior to January 1, 1995.
    Hancock and Waldo Counties in Maine were included as covered areas 
in EPA's reformulated gasoline regulation based on Governor John R. 
McKernan's request of June 26, 1991, that these counties be included 
under the Act's opt-in provision for ozone nonattainment areas. (56 FR 
46119, September 10, 1991) See 40 CFR 80.70(j)(5) (viii) and (ix). On 
December 27, EPA received a petition from the Acting Commissioner of 
Maine's Department of Environmental Protection, Ms. Deborah Garrett, to 
remove Hancock and Waldo Counties in Maine from the list of areas 
covered by the requirements of the reformulated gasoline program. EPA 
understands that Commissioner Garrett is acting for Governor McKernan 
in this matter. EPA Assistant Administrator for Air and Radiation, Mary 
Nichols, responded to the state's request in a letter to Commissioner 
Garrett, dated December 28, 1994, stating EPA's intention to grant 
Maine's request, and conduct rulemaking to implement this. The December 
28 letter also stated EPA's intent to stay the reformulated gasoline 
regulations from January 1, 1995 until July 1, 1995, in the specified 
counties while the Agency completes rulemaking to appropriately change 
the regulations. However, EPA has reserved its authority to enforce the 
reformulated gasoline program for violations that may have occurred 
prior to January 1, 1995.
III. EPA's Proposal To Grant New York's, Pennsylvania's and Maine's 
Requests To Remove Selected Opt-In Areas From the Requirements of the 
Reformulated Gasoline Program and Extension of the Stay of Application 
of the Reformulated Gasoline Regulations

    EPA believes that it is reasonable to construe section 211(k) as 
authorizing the Agency to establish procedures and requirements for 
states to opt out of the reformulated gasoline program. This would only 
apply to areas that have previously opted in under section 211(k)(6); 
the mandatory covered areas would not be allowed to opt out of the 
program.
    In section 211(k)(6), Congress expressed its clear intention 
regarding state opt-in to this program. That paragraph establishes that 
``upon the application of the Governor of a State, the Administrator 
shall apply the prohibition set forth in paragraph (5) in any (ozone 
nonattainment) area in the State * * * The Administrator shall 
establish an effective date for such prohibition * * *.''2 
However, with respect to opting out, ``the statute is silent or 
ambiguous with respect to the specific issue'' and the question is 
whether EPA's interpretation ``is based on a permissible construction 
of the statute.'' Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 843 (1984). In addition, ``[i]f Congress 
has explicitly left a gap for the Agency to fill, there is an express 
delegation of authority to the Agency to elucidate a specific provision 
of the statute by regulation.'' Id. at 843-44. If the delegation is 
implicit, the Agency may adopt a reasonable interpretation of the 
statute. Id. at 844.

    \2\ Paragraph 5 of section 211(k) prohibits the sale of 
conventional, or non-reformulated gasoline, in covered areas.
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    Section 211(k)(1) provides that EPA is to promulgate ``regulations 
establishing requirements for reformulated gasoline.'' This provision 
therefore delegates to EPA the authority to define the requirements for 
reformulated gasoline. Clean Air Act section 301(a)(1) also delegates 
to EPA the general authority to promulgate ``such regulations as are 
necessary'' for EPA to carry out its function under the Act. Given 
these delegations of legislative rulemaking authority, EPA's 
interpretation of section 211(k) with respect to opting out should be 
upheld unless manifestly contrary to the Act. Chevron, 467 U.S. at 843-
44.
    EPA believes that it is appropriate to interpret section 211(k) as 
authorizing states to opt-out of this program, provided that a process 
is established for a reasonable transition out of the program.3 
There are really two aspects to this, the first being whether states 
should be allowed to opt out at all, the second being what conditions, 
if any, should be placed on opting out. With respect to the former, the 
ability to opt out is consistent with the Act's recognition that states 
have the primary responsibility to develop a mix of appropriate control 
strategies needed to reach attainment with the NAAQS. While various 
mandatory control strategies were established under the Clean Air Act, 
the Act still evidences a clear commitment to allowing states the 
flexibility to determine the appropriate mix of other measures needed 
to meet their air pollution goals. Section 211(k)'s opt-in provision 
reflects this deference to state choice, providing that opt-in will 
occur upon application by the governor. The only discretion EPA retains 
regarding opt-in is in setting or extending the effective date. 
Allowing states the ability to opt-out is a logical extension of these 
considerations of deference to state decision making.

    \3\ The preamble to the December 15, 1993, final regulations 
failed to provide a clear discussion of EPA's views on this issue. 
While EPA noted that it ``may pursue a separate action in the future 
that would allow states to opt out of the RFG program, provided 
sufficient notice is given,'' the preamble also indicated there were 
concerns over whether EPA had authority to allow states to opt-out. 
59 FR 7808 (February 16, 1994). The context for these statements, 
however, makes it clear that EPA's concerns were based on issues 
surrounding questions of opting-in for only Phase I of the 
reformulated gasoline program. See 59 FR 7809. As noted above, EPA 
believes that it does have authority to establish requirements that 
allow states to opt-out of this program.
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    Given such deference, it follows that opting out should be 
accomplished through application of the governor. It also follows that 
the conditions on opting out should be geared towards achieving a 
reasonable transition out of the reformulated gasoline program, as 
compared to requiring a state to justify its decision. EPA has 
identified two principal areas of concern in this regard. The first 
involves coordination of air quality planning. For example, 
reformulated gasoline in opt-in areas has been relied upon by several 
states in their State Implementation Plan submissions or in their 
redesignation requests. The second involves appropriate lead time for 
industry to transition out of the program.
    With respect to air quality planning, EPA believes there is no 
reason to delay the removal of the 39 affected counties, or portions of 
counties, in New York, Pennsylvania and Maine. The 39 counties have not 
had an ozone exceedance over a consecutive three-year period. Certain 
of these thirty-nine 

[[Page 31272]]
counties have pending requests with EPA for redesignation to attainment 
status, and the remaining areas intend to seek such redesignation. The 
State Implementation Plans for these areas do not include or rely on 
reformulated gasoline as a control measure. For the moderate areas in 
Pennsylvania, reformulated gasoline is included in the redesignation 
plan as a contingency measure in the maintenance plan. Allowing the 
areas to opt-out now would not interfere with implementing that 
contingency. The areas could opt into the reformulated gasoline program 
in the future, if necessary.
    EPA's letters of December 12 and 28, 1994, to the States of New 
York, Pennsylvania and Maine state that reformulated gasoline will no 
longer be required in the specified areas effective January 1, 1995, 
pending completion of the rulemaking to remove the affected counties. 
These letters, combined with the requests from New York, Pennsylvania 
and Maine to opt-out, have given the industries involved in the supply, 
distribution and sale of reformulated gasoline to these areas notice of 
the Agency's intent to remove these areas from the reformulated 
gasoline program. This has provided time for industry to plan for the 
transition from reformulated gasoline to conventional gasoline in the 
affected areas. In a separate notice signed by the EPA Administrator on 
December 29, 1994, and for the reasons described therein, EPA has 
stayed the program in these thirty-nine counties, or portions thereof, 
effective January 1, 1995, until July 1, 1995. Based on this 
chronology, EPA proposes that these areas be removed from the 
reformulated gasoline program effective upon the issuance of final 
action in this rulemaking.
    As mentioned above, on December 29, 1994, EPA issued a final rule 
staying the application of the reformulated gasoline regulations for 
certain areas that had opted in to the reformulated gasoline program. 
60 FR 2696 (January 11, 1995). This stay applied to Jefferson County 
and the Albany and Buffalo areas of New York, the twenty eight opt-in 
counties in Pennsylvania, and Hancock and Waldo counties in Maine. It 
stayed the regulations in these areas effective January 1, 1995 until 
July 1, 1995. EPA now proposes to extend this stay during the pendency 
of this rulemaking, until the agency takes final action on the proposed 
opt-out for these areas. This extension of the stay is based on the 
reasons described in the December 29, 1994 rule, and the fact that EPA 
will not be able to complete the opt-out rulemaking for these areas 
prior to July 1, 1995.
    EPA intends to take final action on the proposed extension of the 
stay before July 1, 1995, to avoid the serious disruption to the 
gasoline distribution system, the regulated industry and the public 
that would be caused by a temporary imposition of the reformulated 
gasoline requirements in these areas. Based on this potential for 
serious disruption, and the reasons noted by EPA when it issued the 
stay in December 29, 1994 (60 FR 2698, January 11, 1995), EPA has 
determined that there is good cause under 5 U.S.C. 553(b) and Clean Air 
Act section 307(d)(1) to limit the public comment period on the 
proposed extension of the stay to June 28, 1995, and to not provide an 
opportunity for a public hearing on this proposed extension. EPA finds 
that additional notice and public procedure would be impracticable, 
unnecessary, and contrary to the public interest.

IV. General Procedures for EPA's Processing of Future Opt-Out Requests

    EPA is also proposing general rules to cover future opt-out 
requests by states. EPA's proposal would authorize the Administrator to 
approve a petition to opt-out all or a portion of an opt-in area. Such 
a petition would have to be submitted by the governor, or their 
authorized representative, and would need to include information 
describing how, if at all, reformulated gasoline has been relied upon 
by the state in its State Implementation Plans, revisions to such 
plans, or redesignation requests, both pending or already approved. 
This would include, for example, attainment as well as maintenance 
plans.
    If a state did rely on reformulated gasoline as a control measure 
in such plans or requests, then the state would have to describe if and 
how it intended to replace reformulated gasoline as a control measure. 
In addition, the state would need to identify whether it intended to 
submit a revision to its Plan or request for redesignation, the current 
schedule for submitting any revised submission, and the current status 
of state action on such revised submission, and if not, the reasons for 
not submitting a revision. This would include, for example, the status 
of any legislative or administrative action, including notice and 
comment on such a revision.
    The Administrator would have authority to establish an appropriate 
effective date for removal of an area from the list of covered areas 
defined in Sec. 80.70 of the reformulated gasoline rule, subject to 
certain important limitations. For example, if reformulated gasoline 
was relied upon as a control measure in an approved plan, then the opt-
out would not become effective until 30 days after the Agency had 
approved an appropriate revision to the state plan. Likewise, if 
reformulated gasoline was not relied upon in an approved or pending 
SIP, SIP revision, or redesignation request, then the opt-out would 
become effective 30 days from receipt of a complete opt-out petition. 
If reformulated gasoline was relied upon as a control measure in a plan 
that had been submitted to the Agency but is still pending, and the 
Agency has found the plan to be complete and/or made a protectiveness 
finding under 40 CRF 51.448 and 93.128, then the opt-out would become 
effective 120 days from the date a complete petition is received. When 
the state has a pending plan that the Agency has determined complete 
and/or for which the Agency has made a protectiveness finding and the 
state has decided to withdraw the submission or has indicated to the 
Agency the state's intention to submit a revision, then the opt-out 
would become effective 30 days from receipt of a complete petition from 
the state, as described above and specified in the proposed regulatory 
language.
    Under this proposal, the regulated community would typically have 
thirty days lead time to transition out of the program for that area, 
from the point a complete opt-out petition had been received by EPA. 
Where a state's approved SIP includes reformulated gasoline as a 
control measure, there would typically be a longer period of notice, as 
the opt-out would not be effective until 30 days from the effective 
date for EPA approval of a revised SIP which removes reformulated 
gasoline as a control measure. EPA's experience to date with the 
current opt-out requests indicates that the regulated community can, in 
most cases, act relatively quickly to reroute supplies and change 
plans. It also is clear that a short transition period will avoid 
problems of market uncertainty and market disruptions. Some 
representatives of industry have communicated to EPA their concern for 
sufficient lead time for affected industries to make adjustments to 
their infrastructure and the need for a period of public comment on 
each reformulated gasoline program covered area opt-out request. Some 
have suggested that opt-out not be effective until 90 days after a 
governor's request is received by EPA, while others have suggested that 
the opt-out timeframe be dealt with on a case-by-case basis. EPA will 
consider this suggestion and specifically requests comments on these 
issues and other suggestions. 

[[Page 31273]]

    The proposal is structured so that the effective date for opting 
out is based on coordination with the state's air quality planning. 
Where no state SIP or redesignation request relies on reformulated 
gasoline, no further coordination is needed. Where a submission pending 
before the Agency contains reformulated gasoline as a control measure, 
and the Agency has not taken final action on the submission, it would 
be appropriate to allow opt-out to occur quickly where the state either 
withdraws the pending SIP submission or indicates its intention to make 
a substitute for RFG at some future date. This would provide 
flexibility for the states and allow for orderly state planning, as the 
state's planning would be consistent with the use of RFG in the area. 
On the other hand, where the Agency has taken final action approving a 
SIP, it is appropriate for the Agency to maintain the status quo until 
the state submits and EPA approves a revision removing RFG as a control 
measure in the approved SIP. This recognizes the requirement that 
states implement an approved plan until such time EPA approves its 
revision. Finally, where a plan submission is pending before EPA, and 
EPA has made a protectiveness finding for purposes of conformity and/or 
the submission has been found or deemed complete, then opt-out should 
be delayed for 120 days to provide the Agency an adequate opportunity 
to review the current completeness determination and/or protectiveness 
finding on the SIP submission without the use of RFG as a control 
measure and to communicate to the state any potential change in SIP 
status.
    EPA believes that it is important that a state choosing to opt-out 
of the reformulated gasoline program should plan to make any 
appropriate revisions to its SIP, if necessary, to replace the 
reformulated gasoline program as a control measure. Careful planning is 
needed by the state as EPA analysis indicates that reductions from 
other sources are often much less practicable. Reformulated gasoline is 
one of the most cost-effective measures for ozone control available and 
also yields significant air toxic benefits.
    EPA specifically reserves its authority to monitor compliance with 
the reformulated gasoline program and to take appropriate action to 
address violations that may occur prior to the effective date for any 
opt-out.

V. Environmental Impact

    If an area opts out of the reformulated gasoline program, it will 
not receive the reductions in volatile organic compounds, oxides of 
nitrogen (NOX), and air toxics that are expected from this 
program. Instead, the areas would be subject to the federal controls on 
Reid vapor pressure for gasoline in the summertime, and would receive 
control of NOX and air toxics through the requirements of the 
conventional gasoline anti-dumping program. These latter requirements 
are designed to ensure that gasoline quality does not degrade from the 
levels found in 1990. The specific areas covered by this rule have data 
showing compliance with the National Ambient Air Quality Standard 
(NAAQS) for ozone for three or more consecutive years. With regard to 
the general rule for opt-out, EPA is proposing that before opt-out is 
allowed, States requesting opt-out must provide information on 
substitutes for the reformulated gasoline program or in some cases have 
substitutes approved, depending on the status of EPA's processing of 
the SIP. EPA expects that this and the SIP process will ensure that our 
air quality is maintained. However, these areas would be foregoing the 
additional air quality benefits obtained from the use of reformulated 
gasoline.

VI. Economic Impact

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Administrator certifies that this rule will not have 
a significant impact on a substantial number of small entities. This 
proposed rule is not expected to result in any additional compliance 
cost to regulated parties and in fact is expected to decrease 
compliance costs and decrease costs to consumers in the affected areas.

VII. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) 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:
    (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 rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.
    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., EPA must 
obtain Office of Management and Budget (OMB) clearance for any activity 
that will involve collecting substantially the same information from 10 
or more non-Federal respondents. While this proposed rule does require 
information from a state requesting opt-out, EPA does not believe it 
will receive more than nine opt-out requests per year. If EPA 
determines that 10 or more states will be affected in any year, EPA 
will prepare an Information Collection Request and make it available 
for public review and comment.

Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the action promulgated today does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. Therefore, the requirements of the 
Unfunded Mandates Act do not apply to this action.

VIII. Statutory Authority

    The statutory authority for the action in this rule is granted to 
EPA by sections 211 (c) and (k) and section 301(a) of the Clean Air Act 
as amended, 42 U.S.C. 7545 (c) and (k) and 7601(a).

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives, 
Gasoline, Motor vehicle pollution.


[[Page 31274]]

    Dated: June 2, 1995.
Carol M. Browner,
Administrator.

    40 CFR part 80 is proposed to be amended as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

    1. The authority citation for part 80 continues to read as follows:

    Authority: Sections 114, 211 and 301(a) of the Clean Air Act as 
amended (42 U.S.C. 7414, 7545, and 7601(a)).

    2. Section 80.2 is amended by adding paragraph (vv) to read as 
follows:


Sec. 80.2  Definitions.

* * * * *
    (vv) Opt-in area. An area which becomes a covered area under 
Sec. 80.70 pursuant to section 211(k)(6) of the Clean Air Act.
    3. Section 80.70 is amended by revising the first sentence of 
paragraph (j) introductory text to read as follows:


Sec. 80.70  Covered areas.

* * * * *
    (j) The ozone nonattainment areas listed in this paragraph (j) of 
this section are covered areas beginning on January 1, 1995, except 
that those areas listed in paragraphs (j)(5)(viii) and (ix), 
(j)(10)(i), (iii) and (v) through (xi) and (j)(11) of this section 
shall not be covered areas until EPA takes final action on the proposal 
to remove these areas as covered areas. * * *
* * * * *


Sec. 80.70  [Amended]

    4. Section 80.70 is amended by removing paragraphs (j)(5)(viii) and 
(ix).
    5. Section 80.70 is amended by removing paragraphs (j)(10)(i), 
(iii) and (v) through (xi), and redesignating paragraphs (j)(10)(ii) 
and (iv) as (j)(10)(i) and (ii).
    6. Section 80.70 is amended by removing paragraph (j)(11) and 
redesignating paragraphs (j)(12) through (15) as (11) through (14).
    7. Section 80.70 is amended by adding paragraph (l) to read as 
follows:


Sec. 80.70  Covered areas.

* * * * *
    (l) Upon the effective date for removal under Sec. 80.72(a), the 
geographic area covered by such approval shall no longer be considered 
a covered area for purposes of subparts D, E and F of this part.
    8. Section 80.72 is added to read as follows:


Sec. 80.72  Procedures for opting out of the covered areas.

    (a) In accordance with paragraph (b) of this section, the 
Administrator may approve a petition from a state asking for removal of 
any opt-in area, or portion of an opt-in area, from inclusion as a 
covered area under Sec. 80.70. In approving any such petition, the 
Administrator shall establish an appropriate effective date for such 
removal, pursuant to paragraph (c) of this section.
    (b) To be approved under paragraph (a) of this section, a petition 
must be signed by the governor of a state, or his or her authorized 
representative, and must include the following:
    (1) A geographic description of each opt-in area, or portion of 
each opt-in area, which is covered by the petition;
    (2) A description of all ways in which reformulated gasoline is 
relied upon as a control measure in any approved state or local 
implementation plan or plan revision, or in any submission to the 
Agency containing any proposed plan or plan revision (and any 
associated request for redesignation) that is pending before the Agency 
when the petition is submitted; and
    (3) For any opt-in areas covered by the petition for which 
reformulated gasoline is relied upon as a control measure as described 
under paragraph (b)(2) of this section, the petition shall include the 
following information:
    (i) Identify whether the state is withdrawing any such pending plan 
submission;
    (ii)(A) Identify whether the state intends to submit a revision to 
any such approved plan provision or pending plan submission that does 
not rely on reformulated gasoline as a control measure, and describe 
the alternative air quality measures, if any, that the state plans to 
use to replace reformulated gasoline as a control measure;
    (B) A description of the current status of any proposed revision to 
any such approved plan provision or pending plan submission, as well as 
a projected schedule for submission of such proposed revision;
    (C) If the state is not withdrawing any such pending plan 
submission and does not intend to submit a revision to any such 
approved plan provision or pending plan submission, describe why no 
revision is necessary;
    (D) If reformulated gasoline is relied upon in any pending plan 
submission, other than as a contingency measure consisting of a future 
opt-in, and the Agency has found such pending plan submission complete 
or made a protectiveness finding under 40 CFR 51.448 and 93.128, 
demonstrate whether the removal of the reformulated gasoline program 
will affect the completeness and/or protectiveness determinations;
    (4) Upon request by the Adminstrator, the Governor of a State, or 
his or her authorized representative, shall submit additional 
information upon request of the Administrator
    (c) (1) Except as provided in paragraph (c)(2) and (3) of this 
section, the Administrator shall set an effective date for removal of 
an area under paragraph (a) of this section of 30 days from receipt of 
a complete petition by EPA.
    (2) If reformulated gasoline is contained as an element of any plan 
or plan revision that has been approved by the Agency, other than as a 
contingency measure consisting of a future opt-in, then the effective 
date under paragraph (a) of this section shall be 30 days from the 
effective date for Agency approval of a revision to the plan that 
removes reformulated gasoline as a control measure.
    (3) Unless the state has withdrawn the submission or indicated its 
intention to submit a revision, if reformulated gasoline is contained 
as an element in any plan or plan revision that has been submitted to 
and is pending approval by the Agency, other than as a contingency 
measure consisting of a future opt-in, and where such pending plan or 
plan revision has been found or deemed to be complete and/or the Agency 
has made a protectiveness finding under 40 CFR 51.448 and 93.128 
concerning such submission, then the effective date under paragraph (a) 
of this section shall be 120 days from the date a complete petition is 
received by the Agency.
    (d) The Administrator shall publish a notice in the Federal 
Register of any petition approved under paragraph (a) of this section, 
announcing the effective date for removal.

[FR Doc. 95-14573 Filed 6-13-95; 8:45 am]
BILLING CODE 6560-50-P